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



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n234. 10 U.S.C. 624 (2000); Weiss, 510 U.S. at 170 n.5.
n235. Joseph Harris, The Advice and Consent of the Senate 331 (1953) (noting that the "Senate confirmation of military and naval officers has become for all practical purposes an empty formality" because of the sheer number of appointments annually under consideration).
n236. See, e.g., 10 U.S.C. 152, 154 (2000) (prescribing the appointments process for the chair and vice-chair of the Joint Chiefs of Staff).
n237. See, e.g., Dunlap, supra note 184, at 364-65 (noting the significant public opposition for the appointment of General Hoar to the chairmanship of the Joint Chiefs of Staff); id. at 376-77 (describing the desire among some to replace General Powell with a more docile chairman who would not publicly oppose presidential policy aims).
n238. Weiss, 510 U.S. at 182.
n239. See Morrison v. Olson, 487 U.S. 654, 673 (1988).
n240. See supra notes 106-09 and accompanying text.
n241. See, e.g., Freytag v. Commissioner, 501 U.S. 868, 883 (1991) (acknowledging that the Appointments Clause was at least in part a reflection of the Founders' attempt to thwart the unilateral manipulation of official appointments by the Executive); 3 Joseph Story, Commentaries on the Constitution of the United States, 374-77 (1833) (noting that the "consciousness of this [Senate confirmation] check will make the president more circumspect and deliberate in his nominations for office"); see also 2 Federal Convention, supra note 167; The Federalist No. 76 (Alexander Hamilton).
n242. See infra notes 290-303 and accompanying text.
n243. Cf. James Dao, A Man of Violence, or Just "110 Percent" Gung-Ho?, N.Y. Times, June 19, 2004, at A6 (noting the inadequate screening by the CIA of contractor David Passaro accused of perpetrating brutalities against Afghan detainees).
n244. Beermann, supra note 33, at 1511 ("The best candidate for a federal constitutional constraint on privatization of federal government activity may be the Appointments Clause.").
n245. See Jeffrey Addicott & William A. Hudson, Jr., The Twenty-Fifth Anniversary of My Lai: A Time To Inculcate The Lessons, 139 Mil. L. Rev. 153, 184-85 (1993) (emphasizing how important it is for America's junior officers to be well-trained in the laws and ethics of military engagement to insure against battlefield transgressions).
n246. Again, we have an issue where the difference between Congress's relationship to soldiers and to contractors is one of degree rather than kind. As evidence of perhaps the need for Congress to exercise greater control over the enlisted ranks, it should be noted that the Army in 1998 - and well before the current state of the United States's overcommitted military - approved 68% of all waiver requests for applicants with felony convictions. Editorial, Keep the Bad Apples Out of Military Units, News & Record (Greensboro), July 6, 2004, at A10; see also Ken Silverstein, Pentagon Alerted to Trouble in Ranks, L.A. Times, July 1, 2004, at A1 (noting that in 1998 nearly one-third of military recruits had arrest records).
n247. U.S. Const. art. 1 8, cl. 16.
n248. See Chaffin, supra note 109; see also Neil A. Lewis, Documents Build a Case for Working Outside the Laws on Interrogating Prisoners, N.Y. Times, June 9, 2004, at A8 (citing memoranda by the Bush administration's lawyers on how to evade the legal restrictions on "torturing" detainees); Neil A. Lewis, Justice Memos Explained How To Skip Prisoner Rights, N.Y. Times, May 21, 2004, at A10 (describing steps taken by the Administration to justify the legality of "torture"); Neil A. Lewis, U.S. Court Asserts Authority over American in Saudi Jail, N.Y. Times, Dec. 17, 2004, at A17 (noting how the American federal judiciary is asserting jurisdiction over Americans detained abroad and how the courts' actions are seen as an attempt to "rebuff[] the Bush administration in its efforts to keep detention policies and actions connected to fighting terrorism beyond the reach of the [courts]"); Dana Priest & Charles Babington, Plan Would Let U.S. Deport Suspects to Nations that Might Torture Them, Wash. Post, Sept. 30, 2004, at A1 (describing the Bush administration's support for a proposal in the House leadership's Intelligence Reform bill "that would allow U.S. authorities to deport certain foreigners to countries where they are likely to be tortured or abused, an action prohibited by the international laws against torture the United States signed 20 years ago" and noting that this support "contradicts pledges President Bush made after the Abu Ghraib prisoner-abuse scandal erupted [last] Spring that the United States would stand behind the U.N. Convention Against Torture"); Eric Schmitt & Thom Shanker, Rumsfeld Issued an Order To Hide Detainee in Iraq, N.Y. Times, June 17, 2004, at A1 (noting that prisoners called "ghost detainees" had not been listed on officials rolls and were hidden from Red Cross monitors).
n249. See infra notes 312-13, 444-46 and accompanying text.
n250. See, e.g., Jonathan Weisman, War May Require More Money Soon, Wash. Post, Apr. 21, 2004, at A1 (describing the Administration's reluctance to ask for more money for the prolonged occupation of Iraq and characterizing some members of Congress as accusing the President of concealing his true funding needs in an election year for fear of political fallout).
n251. See Singer, supra note 20, at 209-10, 214 (describing how contractors may be paid by off-budget funds); see also O'Harrow, Jr. & McCarthy, supra note 223 (characterizing how disorganized and hard-to-access military contracts are and noting that it took the Pentagon a full week to pinpoint the contracts that authorized the outsourcing of military prison intelligence at Abu Ghraib). See generally supra note 223 and accompanying text.
n252. See Jim Rutenberg, A Bush Commercial Takes Aim at Kerry's Defense Credentials, N.Y. Times, Apr. 27, 2004, at A20 (noting how President Bush heavily criticized John Kerry for allegedly not supporting military appropriations); Jim Rutenberg, 90-Day Strategy by Bush's Aides To Define Kerry, N.Y. Times, Mar. 20, 2004, at A1 (describing how the Bush campaign highlights "Kerry's vote against the $ 87 billion package to support military efforts in Iraq and Afghanistan").
n253. See Singer, supra note 20, at 128 (noting that the United States arranged for the contractors to be paid by, inter alia, Saudi Arabia, Malaysia, Kuwait, Brunei, and the United Arab Emirates); Eric Schmitt, Retired American Troops To Aid Bosnian Army in Combat Skills, N.Y. Times, Jan. 15, 1996, at A1 (describing the process by which Muslim nations paid for MPRI to provide services to Bosnia).
n254. See Koh, supra note 186.
n255. See Jackie Spinner & Ariana Eunjung Cha, U.S. Decisions on Iraq Spending Made in Private, Wash. Post, Dec. 27, 2003, at A1 (describing how some of the CPA's operational expenses are funded through the sale of Iraqi oil and noting that the CPA's "process for spending Iraq's money has little of the openness, debate, and paper trails that define such groups in democratic nations"); see also id. (commenting on how a "mini-Congress" of Americans, Britons, and Australians comprise the core group of administrators awarding and overseeing reconstruction contracts); Steven R. Weisman, U.S. Seeks Help of Iraq Costs, But Donors Want a Larger Say, N.Y. Times, July 14, 2003, at A6 (noting how oil revenues are used to help fund Iraqi reconstruction). The CPA would be even more independent of Congress if the occupation and transition to a free Iraq were less problematic - and less costly. See, e.g., Christopher Dickey, $ 1 Billion a Week, Newsweek, July 21, 2003, at 28 (noting how unannounced and hidden costs associated with the military occupation in Iraq has required additional funding from Congress); cf. Robert Caro, The Power Broker 618-20 (1974) (describing how civil bureaucrat Robert Moses was able to develop an independent and unaccountable financial power base through the creation of public authorities - such as toll roads and bridges - unconnected to legislative appropriations).
n256. See supra notes 199, 201 and accompanying text.
n257. See Tiefer, supra note 191, at 25.
n258. See Powell, supra note 175, at 569-70.
n259. See 50 U.S.C. 1542 (2000); Biden & Ritch, supra note 197, at 385-90; Damrosch, supra note 197, at 66-67; Koh, supra note 186, at 1259-60.
n260. See supra note 48.
n261. See supra notes 58-64 and accompanying text.
n262. Singer, supra note 20, at 207.
n263. Id.
n264. Thomas M. Franck & Edward Weisband, Foreign Policy by Congress 76 (1979) (noting the number of attempts by Congress to rein in unilateral presidential warmaking prior to the passage of the War Powers Resolution); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 Loy. L.A. L. Rev. 715, 728-36 (1984) (characterizing efforts to limit presidential war powers during the Vietnam era); see also H.R. Rep. No. 93-287, at 4-5 (1973), reprinted in 1973 U.S.C.C.A.N. 2346; William Van Alstyne, Congress, the President, and the Power To Declare War: A Requiem for Vietnam, 121 U. Pa. L. Rev. 1, 13 (1972); W. Taylor Reveley III, Presidential War-Making: Constitutional Prerogative or Usurpation?, 55 Va. L. Rev. 1243, 1300 (1969); Patrick D. Robbins, Comment, The War Powers Resolution After Fifteen Years: A Reassessment, 38 Am. U. L. Rev. 141, 154 n.80-83 (1988).
n265. See, e.g., The Federalist No. 49 (James Madison); Gary Born, Review Essay: The President's War Powers, 23 Tex. Int'l L.J. 153, 161-63 (1988); Lewittes, supra note 179, at 1132-46; Jules Lobel, "Little Wars" and the Constitution, 50 U. Miami L. Rev. 61, 73 (1995); Nunn, supra note 27, at 18; see also Peter M. Shane, Learning McNamara's Lessons: How the War Powers Resolution Advances the Rule of Law, 47 Case W. Res. L. Rev. 1281, 1284 (1997) (noting that the approval of Congress often represents the existence of broad political support).
n266. See, e.g., Edmund S. Morgan, Inventing the People (1988); Woodrow Wilson, Congressional Government: A Study in American Politics 303 (1913) (suggesting that the duty to inform the public is Congress's most important function and noting that "the only really self-governing people is that people which discusses and interrogates an administration"); Gordon S. Wood, The Creation of the American Republic 1776-1787 (1969); Brandon, supra note 168, at 1856-57 (characterizing popular sovereignty and self-government as principal features of American constitutionalism); Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); see also Bruce A. Williams, War Rhetoric's Toll on Democracy, Chron. of Higher Educ., Apr. 16, 2004, at B15 (describing the imperative to gain popular support for wars in democratic societies).
n267. Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution and the Right to Bear Arms, 139 U. Pa. L. Rev. 1257, 1258 (1991).
n268. See Michael Walzer, Just and Unjust Wars 25-29, 287-303 (2d ed. 1992); see also Freeman, supra note 3, at 1302-03 (noting many public law scholars' belief that privatization weakens the mechanisms "designed to ensure public participation and individual fairness [that] improve the rationality of decisionmaking and legitimize the authority of the state"); Mashaw, supra note 3, at 26 (describing public administrative law as the embodiment of a rational, deliberative government that subordinates power to reason-giving); Sapone, supra note 50, at 6-10 (describing the use of force by the government as "appropriate violence" and questioning the moral legitimacy of engagement via private actors).
n269. Immanuel Kant, On the Proverb: That May Be True in Theory, But Is of No Practical Use, in Perpetual Peace and Other Essays on Politics, History and Morals 61, 88 (T. Humphrey trans. 1983); see also John Locke, Second Treatise of Government 72 (C.B. Macpherson ed., 1980) (6th ed. 1764) (contending that military powers must be distributed pursuant to the social contract and warning that individuals in a community are "in a much worse condition ... [when] exposed to the arbitrary power of one man, who has the command of 100,000, than [those] that [are] exposed to the arbitrary power of 100,000 single men").
n270. See Scarry, supra note 267, at 1302 (describing one of colonists' chief grievances against the Crown in the Declaration of Independence as that the king "has kept among us, in times of peace, Standing Armies without the Consent of our legislature. He has affected to render the Military independent of and superior to the Civil Power") (quoting The Declaration of Independence para. 2 (U.S. 1776)).
n271. See Alexander Bickel, The Morality of Consent 102-03 (1975) ("The waging of war needs continuous political support [and] it is subject to a continuous round of informal referenda."). Professor Bickel noted that the anti-war movement sentiment in America was so palpable in 1968 that it dissuaded Lyndon Johnson from running for a second presidential term. Id. at 102 (describing how public opinion managed to "topple a sitting president, in the midst of war, in 1968, before a single national vote had been cast"); see also Avant, supra note 219 (emphasizing how the media is not well-equipped to report on military privateers in the same way that they are able to chronicle the activities of regular outfits of U.S. soldiers).
n272. See Scarry, supra note 267, at 1259 (describing the burdens of democratic deliberation on matters of foreign conflict). Professor Scarry writes:

Though it is difficult and time-consuming to convert hundreds of representatives from uncertainty to the decisiveness required for a declaration of war, this very unwieldiness was saluted as a great virtue at the original constitutional convention, and again by later jurists who, like Story, argued that a country must be slow to go to war but quick to attain peace.



Id.; see also Thomas E. Ricks, Rumsfeld Gets Earful from Troops; Complaints Cite Equipment Woes, Extended Tours and Pay Delays, Wash. Post, Dec. 9, 2004, at A1 (chronicling a candid, public town-hall discussion between American military personnel and Secretary Rumsfeld); Eric Schmitt, Troops' Queries Leave Rumsfeld On the Defensive, N.Y. Times, Dec. 9, 2004, at A1 (noting the value of a public town-hall discussion between Iraq-bound troops and the Defense Secretary).
n273. See U.S. Const. art. 2, 2, cl. 2.
n274. See U.S. Const. art. 1, 2.
n275. See, e.g., 1 Federal Convention, supra note 167, at 292; Lofgren, supra note 167, at 680; see also John Norton Moore et al., National Security Law 821 (1990).
n276. See, e.g., Scarry, supra note 267, at 1265, 1269 (describing Article I, section 8 of the Constitution, which calls for a "deliberate assembling of the representatives of the people for a voiced affirmation of war," as embodying America's "Social Contract" and suggesting with regard to the Second Amendment that "if as a nation-state we are to have injuring power, the authorization over the action of injuring (as well as over the risk of receiving injury in return) must be dispersed throughout the population in the widest possible way"); see also U.S. Const., art. I, 8, cl. 12. Section 8, clause 12 imposes limits on the general power to tax and spend by ensuring military appropriations must be debated and re-authorized at least every two years. Hence, Congress cannot lock in long-term plans for, say, a standing army, but must have to reauthorize funds with regularity. See, e.g., The Federalist No. 41, at 259 (James Madison) (Clinton Rossiter ed., 1961) (calling the two-year limitation provision the "best possible precaution against the danger from standing armies"); Dunlap, supra note 184, at 345, 348 (noting that among those debating the virtues of the 1787 Constitution, the "danger posed by a permanent military establishment was a preeminent concern"); "Brutus" X, That Dangerous Engine of Despotism, A Standing Army, N.Y.J., Jan. 24, 1788, reprinted in The Debate on the Constitution, Federalist and Anti-federalist Speeches, Articles, and Letters During the Struggle over Ratification: Part Two: January to August 1788, at 86 (1993).
n277. Scarry, supra note 267, at 1268-69.
n278. See Morgan, supra note 266, at 85-87 (describing the linkages between popular sovereignty and the right to bear arms); Scarry, supra note 267, at 1301-09; see also H. Richard Uviller & William G. Merkel, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent (2002); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 314, 321 (1991); Lawrence Delbert Cress, An Armed Community: The Origin and Meaning of the Right To Bear Arms, 71 J. Am. Hist. 22, 31 (1984); Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285 (1983).
n279. Scarry, supra note 267, at 1266.
n280. Akhil Reed Amar, The Bill of Rights 47 (1998) (citing John Locke, The Second Treatise of Government 221-43 (Thomas P. Peardon ed., 1952)); Cottrol & Diamond, supra note 278, at 327-30; Nelson Lund, The Second Amendment, Political Liberty, and the Right To Self-Preservation, 39 Ala. L. Rev. 103, 111, 113-15 (1987); see also Stephen P. Halbrook, That Every Man Be Armed 76-77 (1984) (noting that it was a chief aim of the Second Amendment to ensure America's citizenry had the capacity to oppose federal tyranny).
n281. See Amar, supra note 280, at 46-50; Morgan, supra note 266; Uviller & Merkel, supra note 278; Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 647-48 (1989); Lund, supra note 280, at 111-16.
n282. Pamela S. Karlan, Ballots and Bullets: The Exceptional History of the Right to Vote, 71 U. Cin. L. Rev. 1345, 1359 (2003) (quoting Lowering the Voting Age to 18: Hearings Before the Subcomm. on Constitutional Amendments of the Sen. Judiciary Comm., 90th Cong. 23 (1968) (statement of R. Spencer Oliver) (emphasis added)).
n283. What, however, should we think about privatization decisions to use contractors rather than soldiers not for purposes of deceiving the People, but to appease them? In other words, the ulterior aim may not be to conceal policymaking decisions so much as to change the substantive shape of those decisions and give them the contours that the People implicitly prefer. The government in this case would be divining the wishes of the public and sending contractors into harm's way where U.S. soldiers would not be dispatched. Accordingly, an argument can be made that privatization is actually democratic-enhancing to the extent that the government would be accurately gauging what the public would find acceptable.

That argument, however, trivializes the importance of "process." Public acquiescence should not be equated with public input, and to circumvent the process by which Congress, and through them, the People, are involved in the decisionmaking is to do harm to the citizens of this country and the institutions that represent their interests.


n284. See Herman Belz, Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era 33-34 (1998); Akhil Reed Amar, Abraham Lincoln and the American Union, 2001 U. Ill. L. Rev. 1109, 1118. Professor Amar adds:

In this regard it is supremely noteworthy (but rarely noticed by those who accuse Lincoln of acting like a dictator) that in 1864, in the middle of an all-out Civil War, Lincoln allowed a regular presidential election to proceed, and pledged to abide by its outcome - even though electoral victory for his opponent might well have led to compromise with the Confederacy and a negotiated dissolution of the Union that Lincoln loved ... Lincoln's decision in 1864 to submit himself and his platform to the judgment of the supreme tribunal of the American people deserves our highest praise ... [and has] given the rest of the world a stunning illustration of the true meaning of constitutional democracy - government of, by, and for the people.



Id.
n285. Pamela S. Karlan, Foreword: Litigation, War, and Politics, By Other Means, 13 Stan. L. & Pol'y Rev. 5, 7 (2002); see also Alexander Keyssar, The Right to Vote 246-47 (2000).
n286. U.S. Const. amend. XXVI; see also Kenneth Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 28 UCLA L. Rev. 499, 500 (1991) (describing the connection between being eligible to fight at age eighteen and being able to vote at that age).
n287. See supra note 285 and accompanying text.
n288. See id. at 1346; see also Keyssar, supra note 285.
n289. Ely, supra note 186, at 1145-48. Moreover, diluting body counts through the use of contractors (whose deaths are not officially tallied) also hampers Americans' ability to make informed decisions about military policy. See supra note 158.
n290. James M. Hirschhorn, The Separate Community: Military Uniqueness and Servicemen's Constitutional Rights, 62 N.C. L. Rev. 177, 178 (1984); Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy, 70 Geo. Wash. L. Rev. 649 (2002) (describing the pervasiveness of military law even in matters that seem not to require a code of discipline distinct from the civilian laws of the United States); see also Parker v. Levy, 417 U.S. 733, 743-44 (1974) ("The military is, by necessity, a specialized society separate from civilian society."). Among the rights subject to curtailment in the confines of military service are free speech, sexual freedom, and religious expressions. See, e.g., Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (upholding the military's prohibition of those visible religious accoutrements that are inconsistent with the Air Force's dress code, on the basis of the military's need for "instinctive obedience, unity, commitment, and esprit de corps"); Brown v. Glines, 444 U.S. 348, 350 (1980) (allowing a base commander to suppress written materials posing "a clear danger to the loyalty, discipline or morale of members of the armed forces"); Greer v. Spock, 424 U.S. 828 (1976) (holding that there is no constitutional right to make political speeches or distribute leaflets on a military base).
n291. See Hirschhorn, supra note 290, at 217; Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, 86 Cal. L. Rev. 939, 953-57 (1998) (characterizing the fostering of a culture of discipline and integrity as a central aim of the system of military governance).
n292. Indeed, the bedrock of a liberal democracy is civilian control over the military. See, e.g., Millett, supra note 214; Kenneth W. Kemp & Charles Hudlin, Civil Supremacy over the Military: Its Nature and Limits, Armed Forces & Soc'y, Fall 1992, at 7. In order to ensure that democratic institutions control the machines of war, civilian control can permit no acts of deviation or insubordination that might compromise the careful orchestration of a military engagement and yield results not intended by the civilian authorities. See Hirschhorn, supra note 290, at 217.
n293. Hirschhorn, supra note 290, at 217. See Lawrence F. Kaplan, Officer Politics, New Republic, Sept. 13, 2004, at 23 (describing the "principle of subordination to civilian control and nonpartisanship" as the essence of American military professionalism); see also Samuel P. Huntington, The Soldier and the State 15-16 (1957) (noting that the military's role in society is understood as being directed entirely by the State and its political agents); Millett, supra note 214, at 2, 61; Kemp & Hudlin, supra note 292, at 7-9; Richard H. Kohn, Out of Control: The Crisis in Civil-Military Relations, Nat'l Interest, Spring 1994, at 3.
n294. Singer, supra note 20, at 191 ("Maintaining proper control of the military is a key priority of governance... ."). In what Foucault characterizes as the "microphysics of power," constant training, drilling, and surveillance and supervision of activities serves to foster discipline and unity and thus leaves little room for deviancy. See, e.g., Michel Foucault, Power/Knowledge 135-58 (Colin Gordon et al., trans., Colin Gordon ed., 1980); Thomas Dumm, Michel Foucault and the Politics of Freedom 104, in 9 Modernity and Political Thought (Morton Schoolman, ed.) (1996). But see Banerjee & Hart, supra note 96; Ricks, Probe, supra note 96; Ricks, Strains, supra note 96.
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