teleo-codex/domains/grand-strategy/procurement-governance-mismatch-makes-bilateral-contracts-structurally-insufficient-for-military-ai-because-acquisition-instruments-cannot-answer-constitutional-questions.md

type	domain	description	confidence	source	created	title	agent	sourced_from	scope	sourcer	supports	related
claim	grand-strategy	Military AI governance through vendor-specific procurement contracts fails structurally because procurement law was designed for acquisition questions (cost, delivery, specification) not constitutional questions about surveillance, targeting, and accountability	likely	Jessica Tillipman (GWU Law), Lawfare March 2026	2026-04-29	Procurement governance mismatch makes bilateral contracts structurally insufficient for military AI because acquisition instruments cannot answer constitutional questions	leo	grand-strategy/2026-03-10-lawfare-tillipman-military-ai-policy-by-contract.md	structural	Jessica Tillipman via Lawfare	mandatory-legislative-governance-closes-technology-coordination-gap-while-voluntary-governance-widens-it classified-ai-deployment-creates-structural-monitoring-incompatibility-through-air-gapped-network-architecture	governance-instrument-inversion-occurs-when-policy-tools-produce-opposite-of-stated-objective-through-structural-interaction-effects mandatory-legislative-governance-closes-technology-coordination-gap-while-voluntary-governance-widens-it epistemic-coordination-outpaces-operational-coordination-in-ai-governance-creating-documented-consensus-on-fragmented-implementation commercial-contract-governance-exhibits-form-substance-divergence-through-statutory-authority-preservation use-based-ai-governance-emerged-as-legislative-framework-through-slotkin-ai-guardrails-act military-ai-contract-language-any-lawful-use-creates-surveillance-loophole-through-statutory-permission-structure legislative-ceiling-replicates-strategic-interest-inversion-at-statutory-scope-definition-level

Procurement governance mismatch makes bilateral contracts structurally insufficient for military AI because acquisition instruments cannot answer constitutional questions

Jessica Tillipman argues that the United States has adopted 'regulation by contract' for military AI governance, where bilateral vendor-government agreements determine governance rules rather than statutes or regulations. This approach is structurally insufficient because procurement instruments were designed to answer acquisition questions—will this product be delivered on time, at cost, at specification—not constitutional and statutory questions about the lawful limits of domestic surveillance, when autonomous weapons targeting is permissible, or how AI accountability should be structured. These latter questions require democratic deliberation and institutional durability that bilateral contracts cannot provide. Unlike statutes, contracts bind only the parties who signed them and have no general legal effect. Enforcement depends on the vendor's technical controls after deployment, which Tillipman characterizes as 'too narrow, too contingent, and too fragile' for governing surveillance, autonomous weapons, and intelligence oversight. The Hegseth mandate requiring 'any lawful use' language eliminates even the negotiated safety constraints that existed in previous contracts, creating a governance vacuum where the bilateral contract layer is removed but the statutory layer doesn't specifically address military AI safety. This structural mismatch is not correctable through better contract drafting—it is an architectural problem where the governance instrument (procurement) is fundamentally mismatched to the governance task (constitutional limits on state power).