LEXSEE 82 WASH. U. L. Q. 1001,AT 1004
Copyright (c) 2004 Washington University
Washington University Law Quarterly
82 Wash. U. L. Q. 1001
ARTICLE: BEYOND ACCOUNTABILITY: THE CONSTITUTIONAL, DEMOCRATIC, AND STRATEGIC PROBLEMS WITH PRIVATIZING WAR
JON D. MICHAELS*
* Law Clerk to the Honorable Guido Calabresi, U.S. Court of Appeals for the Second Circuit; Law Clerk designate, the Honorable David H. Souter, U.S. Supreme Court; J.D., Yale Law School; M.A., Oxford University; B.A., Williams College. The author wishes to thank Bruce Ackerman, Jonathan Becker
, Brad Bedwell, Guido Calabresi, Sewell Chan, Josh Civin, Patrick Curran, Michael Graetz, Jerry Mashaw, Ed Meier, Craig Michaels, Trevor Morrison, Raj Nayak, Nicholas Parrillo
, Susan Rose-Ackerman, Nikhil Shanbhag, Reva Siegel, Alexander Slater, Jake Sullivan, David Super, Seth Waxman and the editors of the Washington University Law Quarterly. Special thanks are owed to Ellen and Larry Michaels, and to Toni Moore.
... Since then, although the government has subsequently scaled back its ambitious domestic downsizing and privatizing initiatives, it nevertheless has expanded and intensified its military privatization agenda. ... If he is not a soldier, and instead is a private contractor who "is shot wearing blue jeans, it's page fifty-three of their hometown newspaper. ... And, in the subsequent two Parts, I discuss, first in Part IV, how military privatization damages the institutional integrity and effectiveness of the U.S. Armed Forces and, also, how it may threaten the normative standing of the American soldier as an embodiment of the patriot-citizen; and then in Part V, I characterize how military privatization, by undermining the legitimacy and vitality of collective security agreements, provides additional fodder for those already suspicious of American foreign policy. ... Indeed, it is reported that military contractors have referred to the current administration's reliance on military outsourcing as the "Iraq Gold Mine" and have likewise mused (quite presciently) that the fallout from September 11 would prove to be a privateer's windfall. ...
In late 2002, while grabbing headlines for boldly promising to slash the federal civilian workforce in half, n1 the Bush Administration was at the same time discreetly hiring private contractors to relieve Special Forces troops of their duty to protect President Hamid Karzai in Afghanistan. n2 In the more celebrated declaration regarding workforce reductions - perhaps the culmination of a decade-long, bipartisan initiative to reinvent and streamline government n3 - the President attempted to allay concerns by [*1004] stressing that the proposed job cuts would not intrude on any functions that are "inherently governmental;" these cuts would instead be focused more narrowly on reaping economic benefits by privatizing commercial responsibilities such as catering, gardening, and clerical work. Unfortunately, in replacing Special Forces troops with private military contractors, the Administration offered no comparable words of comfort.
Since then, although the government has subsequently scaled back its ambitious domestic downsizing and privatizing initiatives, it nevertheless has expanded and intensified its military privatization agenda. This has especially been the case in Iraq, where today over 20,000 contractors are securing key American installations, participating in armed raids against insurgents, and - most infamously - serving as interrogators in the occupation's most notorious prisons. n4
Who would have thought that when the modern wave of government privatization began decades ago with cities experimenting with the contracting out of their sanitation responsibilities, n5 it would swell to encompass the privatization of prisons and welfare services, n6 let alone the [*1005] privatization of foreign policy and national defense? Even staunch libertarians, proponents of the Nozickean night-watchman's state, have long-conceded that when stripped to its core, a nation still must maintain its public commitments to national defense. n7 Indeed, just a few years ago, leading privatization scholars dismissed as implausible the idea that we privatize national security functions. n8
These individuals, like many others, n9 would thus not have expected Washington - over the past decade under Democrats and Republicans [*1006] alike - to employ private agents to do its military bidding in the Latin American drug wars, the Balkans, the Middle East, Rwanda, Afghanistan, and now, in Iraq. In short, since the first Persian Gulf War, private soldiers working for "military firms" under contract with the U.S. government have seen active duty in most conflicts involving the United States (and also some in which the United States has had no official military involvement). In another era, we would call these agents "mercenaries" and label their sponsor governments immoral and illegitimate; could it be that, today, these actors are just another set of government contractors, and the United States is just outsourcing one more governmental function?
Observers who react with dismay over the outsourcing of military functions might see it as the modern, or perhaps post-modern, embodiment of President Eisenhower's famous warning in 1961, when the former Supreme Allied Commander portended the rise of the military-industrial complex. n10 But while Eisenhower's prescient words continue to resonate today n11 - as we witness the awarding of hundreds of contracts to private firms, often to those quite friendly with high-ranking government officials, to rebuild the infrastructure and restore the institutions of Iraq and Afghanistan as well as scores of additional contracts for defense hardware n12 - even he could not have foreseen the government's current policy of delegating highly sensitive responsibilities to private soldiers in and near zones of conflict. n13
[*1007] Indeed the delegation of combat responsibilities presents a qualitatively different and more dangerous privatization agenda than that which troubled Eisenhower. His concerns would be reflected today in the recent allegations of "sweetheart" deals between the federal government and the likes of, say, Halliburton for energy services in Iraq n14 or Boeing for Tanker aircraft. n15 But the harms that flow from those types of contracts, however troubling and possibly even scandalous, fit comfortably within the conventional privatization framework of outsourcing functions that are not inherently governmental, but rather are commercial in nature. n16 They are problems of accountability, and result mainly from poor oversight, improper contract management, and insufficient fidelity to (or simply inadequate) conflict-of-interest laws. n17 And although these contracts and the harms that may accompany them are worrisome from an array of policy perspectives, conceptually speaking they are unremarkable: Driven by the same market-efficiency impulses that motivate the outsourcing of sanitation, catering, and even prison management responsibilities, the contracts to rebuild roads and schools in failed states and to manufacture new weapons do not compel us to rethink our basic understandings of American privatization. n18
[*1008] Military privatization of combat duties, on the other hand, decidedly does. It has the potential to introduce a range of novel constitutional, democratic, and strategic harms that have few, if any, analogues in the context of domestic, commercial outsourcing. Military privatization can be, and perhaps already has been, used by government policymakers under Presidents Bill Clinton and George W. Bush to operate in the shadows of public attention, domestic and international laws, and even to circumvent congressional oversight. For a variety of political and legal reasons, the Executive may at times be constrained in deploying U.S. soldiers. The public's aversion to a military draft, the international community's disdain for American unilateralism, and Congress's reluctance to endorse an administration's hawkish foreign goals may each serve to inhibit, if not totally restrict, the president's ability to use U.S. troops in a given zone of conflict. In such scenarios, resorting to private contractors, dispatched to serve American interests without carrying the apparent symbolic or legal imprimatur of the United States, may be quite tempting.
In those instances, it would not necessarily be the cheaper price tag or specialized expertise that makes private contractors desirable. Rather, it might be the status of the actors (as private, non-governmental agents) vis-a-vis public opinion, congressional scrutiny, and international law that entices policymakers to turn to contracting. Indeed, "tactical privatization," as I call it, is motivated at least in part by a desire to alter substantive policy: Private agents would be used to achieve public policy ends that would not otherwise be attainable, were the government confined to relying exclusively on members of the U.S. Armed Forces. Tactical privatization thus stands in contradistinction to what is widely understood to be the conventional privatization agenda, driven by economic goals, that strives for verisimilitude in replicating government responsibilities (only more efficiently). n19 To elude public debate, circumvent Congress's coordinate role in conducting military affairs, and evade Security Council dictates may help an administration achieve short-term, realpolitik ends; but in the process, the structural damage to the vibrancy and authenticity of public deliberation, to the integrity of America's constitutional architecture of separation of powers, and to the legitimacy of collective security may prove irreparable.
What is perhaps worse, the structural harms introduced by decisions to privatize may not substantially lessen even if, or when, combat privatization is undertaken relatively transparently and mainly for more [*1009] traditional, commercial reasons. Since much of Congress's chief warmaking powers flow from its legal authority over the Armed Forces (especially to authorize armed intervention), even assuming the aims of privatization are purely economic and unconnected to any tactical motives to subvert Congress, constitutional harms do not disappear. In those situations and however inadvertently, privatization would still circumscribe Congress's role in military affairs, thus prompting separation-of-powers concerns not altogether dissimilar to those that would exist were the circumvention intentional. Additionally, and also irrespective of the Executive's motives for privatizing, the introduction onto the battlefield of for-profit contractors, motivated to fight primarily by money and regulated loosely by contract, rather than by the Uniform Code of Military Justice, breeds an array of strategic and psychic harms for the military commanders, for uniformed soldiers in the field, and for Americans at home. Accordingly, privatization of military functions poses a slew of problems too complicated and varied to resolve merely by enhancing accountability, strengthening contract laws, and tightening contract management.
It is, therefore, the present aim of this Article to identify in yet unexplored ways the profound and pervasive dangers that this new modality of privatization introduces. To date, commentators writing about military privatization have primarily focused on the tangible misdeeds that privateers have perpetrated in zones of conflict and on the reform measures necessary to improve battlefield accountability. n20 But what these scholars have overlooked are the deeper, structural problems. Accordingly, this Article seeks to look beyond economic efficiency and accountability concerns - the principal foci of privatization scholarship n21 - to explore [*1010] how covert and, at times, even transparent delegations of sensitive military responsibilities threaten to (1) violate the constitutional imperatives of limited and democratic government, (2) undermine the institutional excellence of (and patriotic support for) the U.S. Armed Forces, and (3) jeopardize the already shaky diplomatic and moral standing of the United States in the eyes of the rest of the world. Given the current state of military policy in America (and the apparent need to rely increasingly on private troops for the foreseeable future), n22 this Article raises urgent and important arguments and prescribes a set of structural reforms that merit the immediate attention of legal scholars and public policymakers alike.
This Article proceeds in six parts. I begin in Part II first by tracing the modern evolution of military privatization and next by discussing six contemporary case studies. Then, I attempt to locate some of the normative impulses motivating this new wave of privatization and to situate them within the broader pattern of American privatization policy; this last section serves to frame the principal conceptual differences between combat-related and more conventional forms of privatization, which will be important in understanding the unique structural harms introduced by decisions to outsource military responsibilities.
[*1011] In Part III, I commence with the inquiry's critical analysis: understanding these structural harms. In this Part, I describe how the Executive can use military contractors to direct national security policy with greater impunity and less oversight than it could if it only had U.S. troops at its disposal. To the extent that Congress's warmaking authority is tied primarily to its regulatory and war-authorizing powers over the American military qua U.S. Armed Forces, a president interested in exercising more unilateral control might hire private contractors in lieu of U.S. soldiers and hence avoid having to collaborate as closely with the legislative branch. In circumventing congressional authority, the Executive violates the two principal constitutional imperatives: limited government - by bypassing Congress and preventing it from checking the ambitions of the president - and democratic government - by acting covertly (i.e., without congressional or, by extension, the People's input) and thus failing to make inclusive policy decisions legitimated by popular consent. While a paradigm case of tactical privatization would involve executive intent to evade congressional monitoring and to avoid having to request authorization for engaging troops in hostilities, harms along these lines would nevertheless ensue even if the president had no such insidious objective - and was instead focused mainly on maximizing economic efficiency. Simply and even inadvertently operating outside of the carefully arranged framework of coordinate military policymaking over the U.S. Armed Forces still has the effect of limiting Congress's formal and informal involvement in decisionmaking.
Then, in Part IV, I characterize how the introduction of private troops, either integrated into a larger contingent of U.S. military personnel or instructed to operate independently, creates considerable institutional harms, strategic liabilities, and morale problems. First, because privateers are not bound by the dictates of the Uniform Code of Military Justice, but rather often only by the terms of their contract, there is a much greater likelihood that they might abandon or distort a mission, ultimately prioritizing some economic goal or their own personal security over the task at hand. Importantly, I argue that this harm goes beyond mere battlefield accountability concerns since it is not so much the potential for privateers to botch a mission that represents the foremost problem; rather, because contractors cannot be regulated as stringently as U.S. troops, also at issue here is the legal dilution of military justice and discipline, on and off the battlefield. The contractors' presence, their uncertain legal status, and their relative impunity from courts-martial could destabilize the delicately balanced constitutional arrangements associated with civil-military relations and democratic warmaking. And, second, I examine how [*1012] the presence of contractors (to the extent they are publicly perceived as profit-seekers rather than as patriots) on the same hostile terrain as regular soldiers may ultimately threaten the privileged and honored status the military has historically enjoyed among the American public.
In Part V, the penultimate part, I discuss the international/diplomatic harms privatization engenders. I describe how military privatization can exacerbate foreign critics' worst fears and suspicions about the United States: No longer will the United States retain the moral high ground by risking its own young men and women of a volunteer army in the name of freedom. Instead, a critic assumes, outsourcing gives Washington freer rein by allowing the government to indemnify itself against casualties and other "sticky" political situations and therefore permits it broader license to purchase strategic outcomes. Moreover, privatization, to the extent that it allows the United States to bypass international agreements and Security Council authorization, undermines the legitimacy and vitality of collective security. Although these harms are felt primarily by the outside, non-American world, they nevertheless have adverse consequences for American foreign policy, for American integrity, and for the interests of containing and regulating the proliferation of even more odious strains of military profiteering that exist in other parts of the world. Therefore, I argue, these international implications should weigh heavily on any structural assessment of the virtues and vices of using private soldiers. Note that whereas the harms explored in Part III chiefly occur when Congress's role is subordinated, the problems analyzed in Parts IV and V do not necessarily depend on circumventing congressional participation in military privatization.
Part VI concludes by first roughly sketching out a set of reform measures that might help to reduce the legal and symbolic status differentials between contractors and soldiers that underlie many of the manifest structural harms described above. Having proffered some reform proposals, I then consider which status disparities may prove the most difficult to eliminate. Finally, I discuss whether these reforms, if successful, might actually reduce, if not altogether destroy, military privatization's raison d'etre.
II. The Modern American Experience with Military Privatization
By way of introduction, this Part offers some background on defense-related contracting over the last few decades, during which time it has expanded from an exclusively commercial arrangement to one that now [*1013] includes the delegation of sensitive combat responsibilities. n23 Throughout much of the Cold War era, defense "privatization" mainly involved the federal government purchasing weapons and hardware from the private sector and contracting out some clerical, custodial, and other support functions. n24 The specter of that military-industrial complex imbued generations with the fear that defense industrialists (or, perhaps, war profiteers) were influencing foreign policymaking. Yet, alone, those concerns could not have prepared us for the range of problems that now arise as modern mercenaries emerge on the contemporary American national security landscape. Indeed, over the last ten years, the federal government has entrusted such private agents to thwart the drug trade in Latin America, interrogate enemy combatants and safeguard American installations in Iraq, provide personal security for President Karzai in Afghanistan, train and advise military forces in the Balkans, and protect American diplomats in the Middle East.
Since exchanging gunfire with Iraqi insurgents, Serbian irredentists, and Colombian drug lords is a far cry from staffing the mess halls or even building Army helicopters, it is helpful to commence this study with a brief look at the advent of combat-related military privatization. Accordingly, Section A describes some of the more conventional patterns and practices associated with commercial military privatization. Section B then introduces some of the new concepts in combat-related privatization initiatives today and presents six case studies. Finally, Section C frames the key conceptual differences between military and more conventional forms of privatization.
A. Commercial Privatization in National Defense
With scores of high-profile, multimillion dollar contracts to rebuild Iraq and Afghanistan and to modernize and upgrade America's weapons of war recently awarded to private firms with particularly close ties to government decisionmakers, it is not surprising that contemporary observers have been echoing President Eisenhower's warnings against the union of government officials and defense industrialists aligned in their foreign policy aims and financial interests. n25 At the close of his second term in the White House, Eisenhower cautioned:
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.
We must never let the weight of this combination endanger our liberties or democratic processes ... . Only an alert and knowledgeable citizenry can compel the proper meshing of huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together. n26
Over the decades since Eisenhower's famous speech, concerns regarding the defense industry's influence over American foreign policy have persisted and continue to unsettle us. n27 Exacerbating these long- [*1015] standing concerns today, of course, are the exceedingly cozy relationships between the government and the defense industry, n28 the elevated levels of military spending in the aftermath of September 11, 2001, n29 and an ongoing war and occupation in Iraq. These temporally converging and reinforcing narratives combine to make the military-industrial story of today a particularly riveting and troubling one. Indeed, this story has invited the public to wonder whether decisions to intervene overseas are ever influenced by the contractors who supply the weaponry and services necessary to vanquish our enemies? n30 To ask if military alliances are [*1016] likewise ever promoted by those who will most benefit from new lucrative opportunities to sell weaponry in untapped markets? n31 And finally, to query whether any of the impetus behind so-called "nation building" in failed states is led by those very contractors who will, ultimately, bid for the rights also to rebuild the nation? n32
But this story and the questions it provokes, however politically exciting and scandalous, actually belong in yesterday's news cycle - at least when it comes to privatization. Analytically speaking, these commercial defense contracts, which range from building satellites to emptying latrines, introduce few, if any, novel problems from the standpoint of understanding and theorizing privatization as a legal or normative phenomenon. n33 Instead, these arrangements, precisely because they are commercial in nature and do not involve the delegation of [*1017] sensitive (let alone lethal) policy discretion, n34 are conceptually indistinguishable from other, "garden-variety" contracting-out initiatives currently coursing through the veins of American government. n35 Thus, notwithstanding the fact that the privatized tasks may bring contractors to international hotspots, authorize them to work on top secret projects, and (as an essential, or sole-source, supplier) even give them leverage over the U.S. government, n36 the tasks themselves still comport well with the current President Bush's promise to outsource only those services that are not "inherently governmental." n37 Indeed, any harms that may flow from this [*1018] sort of privatization result principally from poor contract management, inadequate oversight, and insufficient fidelity to conflict-of-interest laws; n38 they speak mainly to issues of corruption and mismanagement rather than to improper delegations of government responsibilities. n39 After all, food, custodial, maintenance, and even construction projects characterize that which is ancillary to America's national security apparatus - or, for that matter, to America's public policymaking prerogatives more generally.