Length: 44694 words article: beyond accountability: the constitutional, democratic, and strategic problems with privatizing war name



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n199. See Tiefer, supra note 191, at 4; see also Damrosch, supra note 197, at 68 (describing George H.W. Bush's "military strategy [as] deriving much-needed legitimacy from the fact that he was able to persuade Congress to support him; that congressional articulation of national interest has provided authority and credibility ... for the 1991 war."). As Peter Spiro has stated:

With the end of the Cold War, Congress has become increasingly assertive on the foreign policy stage. The legislative branch may never have reflexively done the President's bidding on national security matters, but today the White House can no longer even indisputably claim to set the general course of the nation's foreign dealings. On defense and security policy, Congress may now call the shots.

Peter J. Spiro, Old Wars/New Wars, 37 Wm. & Mary L. Rev. 723, 723-24 (1996). Consistent with the dictates of the War Powers Resolution, President Clinton also duly reported the bombing of Serb forces in Kosovo. See Campbell v. Clinton, 52 F. Supp. 2d 34, 37-38 (D.D.C. 1999); Note, D.C. Circuit Holds that Members of Congress May Not Challenge the President's Use of Troops in Kosovo, 113 Harv. L. Rev. 2134 (2000).
n200. See, e.g., T.J. Halstead, The Law: Walker v. Cheney: Legal Insulation of the Vice President from GAO Investigations, 33 Presidential Stud. Q. 635 (2003); Jules Lobel, The War on Terrorism and Civil Liberties, 63 U. Pitt. L. Rev. 767 (2002); Mark J. Rozell, Executive Privilege Revived? Secrecy and Conflict During the Bush Presidency, 52 Duke L.J. 403 (2002); James Carey, 7 Clues To Understanding Dick Cheney, Time, Dec. 30, 2002, at 98; Harold Hongju Koh, Rights to Remember, Economist, Nov. 1, 2003, at 24; John Podesta, Taking Liberty, Am. Prospect, Sept. 2003, at 44; Benjamin Wittes, Enemy Americans, Atl. Monthly, July 1, 2004, at 127; see also Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004); Rasul v. Bush, 124 S. Ct. 2686 (2004); Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004); In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003).
n201. See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (2002); Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001); Alison Mitchell & Carl Hulse, Congress Authorizes Bush To Use Force Against Iraq, Creating a Broad Mandate, N.Y. Times, Oct. 11, 2002, at A1. And, as Professor Michael Paulsen reminds us, just because Congress's Authorization for Use of Military Force on September 18, 2001, gave the President nearly plenary power to conduct the war on terrorism, without apparent limitation as to duration, scope, and tactics, it does not mean that congressional authorization was not an important prerequisite to military action. Paulsen, supra note 197, at 251-52; see also Hamdi, 124 S. Ct. at 2635, 2640-42 (plurality opinion) (characterizing Congress's 2001 authorization of military force to fight terrorism as quite broad).

Indeed, none of these authorizations should be viewed merely as a rubber stamping. See, e.g., Joseph R. Biden, Jr., Fires Next Time, New Republic, June 28, 2004, at 14 (describing congressional efforts to narrow the scope of the president's "mandate" in Iraq); Donna Cassata & Pat Towell, Doubts About Clinton's Strategy Stall Iraq Resolution, 56 Cong. Q. Wkly. Rep. 397 (1998) (describing Congress as refusing either to approve or disapprove of military action in 1997-98 in Iraq); Damrosch, supra note 197, at 68 (noting that Somalia lacked the popular support that might have been obtainable had George H.W. Bush first sought to involve Congress in a meaningful way); Tiefer, supra note 191, at 8-9 (noting that the House had drafted funding cutoffs and was prepared to vote on them if the President had expanded U.S. military involvement in Bosnia); id. at 13-14 (describing Senator Dole's proposal that would guarantee congressional decision making over what type of military work U.S. soldiers would handle); Tracy Wilkinson, U.S. To Provide Bosnia 116 Heavy Cannons, Wash. Post, May 10, 1997, at A22 (noting that pure military work, not nation building, was what Congress specified under Dole's plan); see also Hartzman, supra note 184, at 95 (describing congressional efforts in the 1990s to limit the number of U.S. troops dispatched for U.N. peacekeeping to 1000 at any one time and to limit their function to guarding, observing, and other non-combatant roles); id. at 95-96 (characterizing other bills limiting the president's ability to dispatch military officials to foreign countries or to have them participate in joint military actions); Tiefer, supra note 191, at 25 n.109 (describing Congress's refusal to support Eisenhower's request for combat involvement in Vietnam in 1954). But see Treanor, supra note 168, at 702-05 (suggesting modern presidents have not deferred to congressional authority in matters of engaging troops in hostile environs).


n202. See supra note 194 and accompanying text.
n203. Lobel, supra note 80, at 1079; Juan O. Tamayo, Private Firms Take on Jobs, Risks for U.S. Military in Andes Drug War, Miami Herald, May 22, 2001, at 1A ("Privatization is a way of going around Congress and not telling the public. Foreign policy is made by default to private military consultants motivated by bottom-line profits.") (quoting U.S. Army Col. Bruce Grant).
n204. Lewittes, supra note 179, at 1132-33 (contrasting the American president's limitations on calling up a standing army with the broad powers to conscript enjoyed by monarchs and tyrants of centuries ago).
n205. See, e.g., Joseph C. Anselmo, Pentagon Plans for Bigger, Better Army with "Spike,' 62 Cong. Q. Wkly. Rep. 270 (2004) (noting the Army's need to add more troops to satisfy the nation's international commitments); Eric Schmitt, Army Extending Service for G.I.s Due in War Zones, N.Y. Times, June 3, 2004, at A1; Eric Schmitt, General Says He May Ask for More Troops, N.Y. Times, Apr. 24, 2004, at A10.
n206. Joseph C. Anselmo, Rangel Legislation Stirs Draft Debate, 62 Cong. Q. Wkly. Rep. 273 (2004); Dao, supra note 22; Monica Davey, Eight Soldiers Plan To Sue over Army Tours of Duty, N.Y. Times, Dec. 6, 2004, at A15; Helen Dewar, Hagel Seeking Broad Debate on Draft Issue, Wash. Post, Apr. 22, 2004, at A25; Lee Hockstader, Army Stops Many Soldiers from Quitting; Orders Extend Enlistments To Curtail Troop Shortages, Wash. Post, Dec. 29, 2003, at A1; Krugman, supra note 22; Vernon Loeb, Army Reserve Chief Fears Retention Crisis, Wash. Post, Jan. 21, 2004, at A4; Manuel Roig-Franzia, Weekend Warriors Go Full Time, Wash. Post, Mar. 2, 2004, at A1; see also Singer, supra note 20, at 211 (noting that using privatization to circumvent congressional troop caps can help avoid the domestic uproar associated with calling up the National Guard or Reservists); Bianco & Forest, supra note 30, at 78 ("Why take the heat of calling up reservists when you can summon civilians-for-hire?"); Catan et al., supra note 20; Thomas E. Ricks, Wars Put Strain on National Guard, Wash. Post, June 6, 2004, at A1; Wayne, supra note 2 (noting that private military firms can be used not simply to elude public scrutiny but also, more affirmatively, to evade existing congressional limits on troop strength).
n207. See Cooper, supra note 22 (noting the much higher political and economic costs associated with increasing troop levels or reintroducing the draft relative to those related to relying on private contractors).
n208. See Elizabeth Bumiller & Jodi Wilgoren, Ex-Administrator's Remark Puts Bush on the Defensive, N.Y. Times, Oct. 6, 2004, at A22 (noting Ambassador Bremer's claim that the United States never deployed enough troops in Iraq to support the occupation and transition).
n209. See Hastings, supra note 57 (noting that the United States has relied on military contractors in Iraq to a greater extent than on any foreign ally, including Britain).
n210. See, e.g., Editorial, The Coalition of the Willing, N.Y. Times, Feb. 19, 2003, at A24 (characterizing the U.S.-led coalition against Iraq as lacking in the coercive legitimacy that would exist were the United Nations Security Council included); Michael Dobbs, Concern Grows Over U.S. Need for Allies, Wash. Post, Jan. 27, 2003, at A1 (describing the United States's willingness to invade Iraq by itself while taking note of the benefits that could be achieved were a broader coalition included); Michael R. Gordon, Serving Notice of a New U.S., Poised to Hit First and Alone, N.Y. Times, Jan. 27, 2003, at A1 (describing President Bush's willingness to disarm Iraq without the assistance or support of the international community); Elizabeth Kolbert, Solo Act, New Yorker, Oct. 6, 2003, at 43; Patrick E. Tyler, Annan Presses Bush To Avoid a Rush To War, N.Y. Times, Nov. 14, 2002, at A1; Patrick E. Tyler & Felicity Barringer, Annan Says U.S. Will Violate Charter If It Acts Without Approval, N.Y. Times, Mar. 11, 2003, at A10; Very Well, Alone - Dealing with Iraq, Economist, Mar. 15, 2003, at 3 (noting how the Anglo-American initiative in Iraq lacked widespread international support).
n211. See supra note 46 and accompanying text.
n212. After Hamdi, of course, it may be the case that Congress will be more careful and precise with respect to what it actually authorizes in terms of presidential warmaking. See Hamdi, 124 S. Ct. at 2641-42 (plurality opinion) (holding that the 2001 congressional authorization of military force provided the Executive with sufficient legal grounding to detain enemy combatants); id. at 2656-57 (Souter, J., concurring) (construing the force authorization statute more narrowly so as not to grant the Executive blanket detention powers over individuals within the United States); see also infra notes 256-63 and accompanying text.
n213. U.S. Const. art. I, 8; War Powers Resolution, supra note 194; Nunn, supra note 27, at 18-19.
n214. See, e.g., Raoul Berger, Executive Privilege: A Constitutional Myth 108-09 (1974) ("In the entire armory of war powers only one has been exclusively conferred upon the President, the power as "first General' to direct the conduct of war once it has been commenced. Even in this area, the military and naval command were not immune from parliamentary inquiry into the conduct of the war."); see also Barry M. Blechman, The Politics of National Security 3-22 (1990); Allan R. Millett, The American Political System and Civilian Control of the Military: A Historical Perspective 47-48 (1979); Dunlap, supra note 184, at 379 ("Since the Vietnam War ... Congress has sought to become much more active in the management and oversight of military affairs ... . Since 1974, Congress annually makes 750,000 inquiries of the Pentagon and demands 750 yearly reports. Furthermore, the Congress created potent support agencies like the General Accounting Office (GAO) a huge 5,000 person investigatory organization that frequently targets the military."); Carl Hulse, Byrd Questions Use of Money for Iraq, N.Y. Times, Apr. 21, 2004, at A11 (noting the senator's dismay that the Administration "might have broken the law by failing to inform Congressional leaders in mid-2002 of its use of emergency antiterror dollars to begin preparations for an invasion of Iraq").
n215. See, e.g., Singer, supra note 20, at 210. Singer notes:

Military consulting firms also offer the possibility of providing military assistance to allies with negative images, which would otherwise be unable to garner Congressional approval. For example, both Angola and Equatorial Guinea are nondemocratic states with poor human rights records, that by law are ineligible for U.S. military assistance. However, with the emergence of [private military firms], the United States has been able to offer to arrange the privatized equivalent for both. Similar discreet moves were made to aid the Nigerian military in Liberia ... in 1996-97, again against the law (in this case sanctions against the Abacha dictatorship) ... .



Id at 210-11; see also infra notes 217-18 and accompanying text (noting no disclosure to Congress is required if a military contract with a foreign nation is valued at less than $ 50 million).
n216. This is the case even if it could secure authorization ex post. See, e.g., Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029, 1048 (2004) (noting how built-in separation-of-powers checks to limit executive authority in times of emergency "will lead [the president] to use his powers cautiously"); Oren Gross, Chaos and Rules: Should Responses to Violent Crimes Always Be Constitutional?, 112 Yale L.J. 1011, 1123-24 (2003) (characterizing the ex post evaluation of an Executive's actions during times of crisis as a means of constraining ex ante decisions to engage in potentially unlawful or overzealous behaviors).
n217. Koh, supra note 186, at 1273 (indicating that War Powers impediments have not eliminated executive warmaking attempts, but has driven them "underground ... to substitute covert for overt operations") (emphasis added); Lobel, supra note 80, at 1038 (noting that modern presidential administrations have argued that authority over covert operations is an inherent presidential power); Silverberg, supra note 48; Uyeda, supra note 193, at 784, 792.
n218. See Koh, supra note 170; Koh, supra note 186; see also Lobel, supra note 80, at 1093-97. As Professor Lobel notes, although this act appears to allow the Executive to conduct covert operations without congressional approval, it should not be read as broadly delegating all power to the president. Instead, it "should be understood as a supplement to preexisting statutory and constitutional limits on the executive use of covert operations. The purpose of the statute was to provide procedural limitations on the exercise of executive power in order to augment the substantive restraints that already existed." Id. at 1094; see also Act of Dec. 21, 1982, Pub. L. No. 97-377, 793, 96 Stat. 1830 ("None of the funds provided by this Act may be used by the Central Intelligence Agency or the Department of Defense to furnish military equipment, military training or advice, or other support for military activities, to any group or individual, not part of a country's armed forces, for the purpose of overthrowing the government of Nicaragua ... .").
n219. See, e.g., Avant, supra note 109 (noting how Congress is not adequately informed of deployments and operations involving private soldiers); Day, supra note 13 (indicating that executive agencies do not always have a complete, comprehensive record of all the outsourcing initiatives undertaken by their various sub-divisions); Forero, supra note 20 (noting that very few members of Congress have any familiarity with the details of the contracts authorizing counternarcotics work in Latin America); see also Ely, supra note 186, at 1100 (noting that wars may not need to be authorized by Congress if they are not fought by regular members of the U.S. Armed Forces).

As Congresswoman Schakowsky has noted, contracting "masks just what the U.S. commitment is in places like Iraq and allows many of these activities to literally fly under the radar of the Congress and the consciousness of the American people." Cooper, supra note 22


n220. Singer, supra note 20, at 214.
n221. 22 U.S.C. 2751-2799(d) (2000); see 22 U.S.C. 2776-2778 (2000).
n222. Only if a contract between an American military firm and a foreign state exceeds $ 50 million does the State Department even have to notify the Speaker of the House and the Chair of the Senate Foreign Relations Committee prior to effectuating it. At the time of notification, a notice of the contract is also published in the Federal Register. Congress has between 15 and 30 days to react by passing a joint resolution; otherwise the contract will automatically take effect. See 22 U.S.C. 2776 (2000). Anything short of $ 50 million - and many sizable contracts, of course, can be broken down into several, smaller contracts under $ 50 million - does not require any active involvement by Congress, though the president must update the Speaker and the Senate Foreign Relations Chair on a quarterly basis. Id.; see also Gaul, supra note 53 (noting that "the AECA provides little public accountability for non-classified contracts that commit the entire nation to acts of war."); Kurlantzick, supra note 20; Kevin P. Sheehan, Note, Executive and Legislative Relations and the U.S. Armed Export Control Regime in the Post-Cold War Era, 33 Colum. J. Transnat'l L. 179, 186-88 (1995).
n223. Singer, supra note 20, at 208 (describing Colombian contracts that are routed through the State Department's anti-narcotics section); Guillory, supra note 47, at 127 (noting that DynCorp's contracts in Colombia have been routed through the State Department); Robert O'Harrow, Jr. & Ellen McCarthy, Private Sector Has Firm Role in the Pentagon, Wash. Post, June 8, 2004, at E1 (noting that the contracts for interrogators at Abu Ghraib were overseen by the Interior Department, which had little expertise in knowing how to monitor or define the role of such intelligence work); see also infra notes 226, 227, and 251 and accompanying text.
n224. Singer, supra note 20, at 209-10 (noting how the many layers of contracts and subcontracts make congressional oversight very difficult and indicating that "Congress tends to focus its attention on official aid programs"); id. at 214 (noting that many military contracts are paid through off-budget funds); id. at 240 (suggesting that oversight committees with jurisdiction over Commerce and State need to become learned in military affairs); Guttman, supra note 3, at 894 (indicating that even little things such as contractors not being required to publish personnel directories and phone books, organization charts, and pay grades complicates and frustrates congressional oversight).
n225. Even in a highly publicized, nationally televised committee hearing in the immediate wake of the Abu Ghraib scandal, the Senate Armed Services Committee members could not get any answers from top Pentagon officials about what contractors and what contracting firms were involved in the brutal activities. See Testimony of Secretary of Defense Donald H. Rumsfeld, Testimony as Prepared by Secretary of Defense Donald H. Rumsfeld Before the Senate and House Armed Services Committees, U.S. Department of Defense Speech (May 7, 2004), available at http://www.defenselink.mil/speeches/2004/sp20040507-secdef1042.html (last visited Dec. 12, 2004) (indicating that the Secretary of Defense and Chairman of the Joint Chiefs of Staff could not respond to Senator McCain's request for the names of the military firms under contract to work at Abu Ghraib); see also Avant, supra note 109; Joel Brinkley, Army Policy Bars Interrogations by Private Contractors, N.Y. Times, June 12, 2004, at A1.
n226. Avant, supra note 109; see Editorial, Contractors in Iraq Need Strict Oversight, Denver Post, June 20, 2004, at E6 (noting that CACI's contract governing its interrogation work in Abu Ghraib was embedded in a computer services contract with the Department of the Interior); see also Cooper, supra note 22 (describing loopholes that contractors and the executive branch use to help evade congressional oversight). As Cooper notes:

[A] new "blanket-purchase agreement" allows a government department to avoid bidding out contracts by piggybacking onto another department's existing contract with a company for unrelated services. In this way, the Defense Department contracted with CACI to provide interrogators for Iraq using an existing agreement the firm had for unrelated services with the Interior Department.

Id.
n227. Cha & Merle, supra note 109; see also Green, supra note 58 (noting how private military contracts for work in Latin America are routed through at least five U.S. executive agencies).
n228. See Singer, supra note 20, at 214 (noting that the firms "claim that they cannot provide information, without government approval" and that the government does not provide information about the private contracts in accordance with proprietary information protections); id. at 208-09 (citing both contractual imperatives not to discuss the details of plans related to missions and discussing the fact that neither contracting firms nor the federal government is required to release names of slain contractors).

For similar patterns of proprietary information being withheld from oversight committees and/or the public in other contexts, see Barbara L. Bezdek, Contractual Welfare: Non-Accountability and Diminished Democracy in Local Government Contracts for Welfare-to-Work Services, 28 Fordham Urb. L.J. 1559, 1570-71 (2001); Diller, Revolution, supra note 6, at 1199; Freeman, supra note 3, at 1303-06; Merrill Goozner, Welfare's Gold Rush: Private Sector Mining Hard for Reform Effort's Contracts, Chi. Trib., June 29, 1997, at C1; David A. Super, Policy Considerations Relating to Privatization in the Food Stamp Program, Center on Budget and Policy Priorities, Oct. 28, 2004, available at http://www.cbpp.org/10-28-04fa.pdf (last visited Dec. 14, 2004); cf. Forsham v. Califano 587 F.2d 1128, 1136 n.19 (D.C. Cir. 1978) ("Where records are created by a private entity, we believe the applicability of FOIA will turn on whether the government is involved in the core planning or execution of the program or whether, by contrast, the entity retains its private character in bona fide fashion during the course of the endeavor that results in the records.").


n229. Senator McCain, a senior member of the Senate Armed Services Committee, has repeatedly requested that the Pentagon turn over its communications with Boeing regarding negotiations over a new fleet of Air Force Tankers. The Pentagon has resolutely refused, citing the need to preserve its contractors' proprietary information. McCain, in turn, blocked the confirmation of all civilian nominees to the Defense Department and promised to continue to do so until those documents were disclosed. Philip Dine, Probe Continues on Boeing Lease/Pentagon Official Says Investigation Could Hold Up Tanker Deal, St. Louis Post-Dispatch, Feb. 12, 2004, at B3 (noting Senator McCain's frustration with the Defense Department for its refusal to disclose communications between the Pentagon and its contractors); Renae Merle, Pentagon Refuses To Give Panel Documents on Tanker Contracts, Wash. Post, Dec. 17, 2003, at E6 (describing the Pentagon's refusal to share contract documents with the Senate Armed Services Committee because of Boeing's need to protect its proprietary information); see also supra notes 132 and 137 and accompanying text.
n230. Singer, supra note 20, at 131-34; see also infra note 431 and accompanying text.
n231. Weiss v. United States, 510 U.S. 163, 182 (1994) (Souter, J., concurring); see also 10 U.S.C. 531 (2000); United States v. Corson, 114 U.S. 619, 622 (1885) (characterizing military officials as officers of the United States who require presidential appointment and Senate confirmation).
n232. U.S. Const. art. II, 2, cl. 2 ("[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States... ."); 10 U.S.C. 531 (2000); Weiss, 510 U.S. at 170 (confirming that the Appointments Clause applies at least to some military officers); Buckley v. Valeo, 424 U.S. 1, 126 (1976) (noting that any individual "exercising significant authority" under the laws of the United States is an "Officer of the United States" and must therefore be appointed pursuant to the Constitution's Appointments Clause); see also Weiss, 510 U.S. at 182 (Souter, J., concurring) (noting that even though many military officers may be deemed "inferior officers" for constitutional purposes, Congress has not chosen to designate them as such for purposes of dispensing with Senate confirmation proceedings).
n233. 10 U.S.C. 531 (2000).
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