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



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n295. See supra note 290 and accompanying text; infra note 303 and accompanying text.
n296. Thom Shanker, Experts See Little Defense for Troops' Disobedience, N.Y. Times, Oct. 17, 2004, at A12 (noting that "order and discipline required for successful combat operations cannot exist if subordinates are allowed to vote on their mission or second-guess superiors").
n297. Jonathan Turley, The Military Pocket Republic, 97 Nw. U. L. Rev. 1, 6 (2002).
n298. See Richard S. Hartigan, Introduction to Lieber's Code and the Law of War 1 (1983); James C. Neagles, Summer Soldiers, A Survey and Index of Revolutionary War Courts-Martial (1986); William Winthrop, Military Law and Precedents, app. X. at 961 (2d ed. 1920) (reprinting 1775 and 1776 Articles of War); James F. Childress, Francis Lieber's Interpretation of the Laws of War: General Orders No. 100 in the Context of His Life and Thought, 21 Am. J. Juris. 34 (1976); Hon. Walter T. Cox III, The Army, the Courts, and the Constitution: The Evolution of Military Justice, 118 Mil. L. Rev. 1, 5-6 (1987); Alexander Holtzoff, Administration of Justice in the United States Army, 22 N.Y.U. L. Rev. 1 (1947); Edmund M. Morgan, The Background of the Uniform Code of Military Justice, 6 Vand. L. Rev. 169 (1953); Edmund M. Morgan, The Existing Court-Martial System and the Ansell Army Articles, 29 Yale L.J. 52 (1919); see also Goldman v. Weinberger, 475 U.S. 503, 507 (1986) ("The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment... .").
n299. Uniform Code of Military Justice of 1950, Pub. L. No. 81-506, 64 Stat. 107.
n300. See, e.g., UCMJ art. 85 (desertion); 86 (AWOL); 88 (using contemptuous words against the president); 89 (showing disrespect toward a superior officer); 91 (insubordination toward non-commissioned officer); 92 (failure to obey an order); 113 (misbehaving); 115 (malingering); 133 (conduct unbecoming an officer and gentleman); see also 10 U.S.C. 976 (2000) (prohibiting members of the military from organizing or engaging in any other union activities); 18 U.S.C. 2387 (2000) (prohibiting interference with the discipline or morale of the armed forces); Hirschhorn, supra note 290, at 208; Turley, supra note 290, at 666. As Professor Diane Mazur underscores, the UCMJ is not simply a punitive apparatus; rather, on a day-to-day basis it provides soldiers with a guiding framework for carrying out duties responsibly. See Diane H. Mazur, Rehnquist's Vietnam: Constitutional Separatism and the Stealth Advance of Martial Law, 77 Ind. L.J. 701, 709 (2002).
n301. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215, 1216 (2001). Professors Eskridge and Ferejohn note that:

A super-statute is a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does "stick" in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law - including an effect beyond the four corners of the statute.



Id.
n302. See supra note 195 and accompanying text.
n303. See, e.g., Solario v. United States, 483 U.S. 435, 447 (1987) (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)) ("Judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."); Rostker, 453 U.S. at 65 ("It is difficult to conceive of an area ... in which courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially ... military judgments."); U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 22-23 (1955); Dynes v. Hoover, 61 U.S. (20 How.) 65, 79 (1857) (noting that Article I provisions "show that Congress has the power to provide for the trial and punishment of military and naval offenses ... and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed that the two powers are entirely independent of each other."); Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 403 (1851); Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827) (refusing to review the validity of military orders or military punishments); see also Goldman, 475 U.S. at 507; Brown v. Glines, 444 U.S. 348, 350 (1980); Greer v. Spock, 424 U.S. 828 (1976); Cox, supra note 298, at 23 (noting that the military by necessity imposes restrictions on the lives of service members that are much more stringent than anything imposed on the civilian population); Hirschhorn, supra note 290, at 184; Karst, supra note 286, at 570 (indicating that "entry into the armed forces implies some separation from the norms of the larger community, including some yielding of individual freedoms to ... make a fighting force effective"); Mazur, supra note 300, at 707-12; Osiel, supra note 291, at 953 (suggesting that key codes of military regulations are "largely distinct from, even at odds with, the common morality of civilian society"); id. at 1023 (noting that the Supreme Court "has displayed extraordinary deference toward the armed forces as a community possessed of its own nomos, or norm-creating and norm-sustaining mechanism").
n304. See infra notes 444-46.
n305. Studies suggest troop camaraderie appears to strengthen the resolve of military units more than any other bond (including nationalism or political ideology). See, e.g., J. Glenn Gray, The Warriors 27 (1959) (characterizing the strength of ties within military units as "unequaled in forging links among people of unlike desire and temperament"); Osiel, supra note 291, at 1053-55 (highlighting how the basic units of military association provide core groupings for displays of loyalty, bravery, and self-sacrifice); cf. Ricks, Strains, supra note 96 (emphasizing differences between units of regular soldiers and national guard units in terms of trust and unit cohesion).
n306. Osiel, supra note 291, at 955.
n307. See, e.g., Dunlap, supra note 184, at 388 ("Military personnel perceive most of American society as conspicuously lacking those qualities [of duty and community.] Not surprisingly, therefore, they often prefer to live in their own military enclaves, complete with homes, schools, churches, stores, and entertainment facilities."); Mazur, supra note 300, at 756 ("Today ... military haircuts are often designed to separate a serviceman from civilian society, to define a servicemember as different and apart. Extremely shaved styles that would be considered inappropriate for a civilian professional are chosen for just that reason - they identify a servicemember as not civilian."); Diane H. Mazur, Why Progressives Lost the War When They Lost the Draft, 32 Hofstra L. Rev. 553, 566-67 (2003); Adam Clymer, Sharp Divergence Found in Views of Military and Civilians, N.Y. Times, Sept. 9, 1999, at A20; Ole R. Holsti, A Widening Gap Between the U.S. Military and Civilian Society?: Some Evidence, 1976-96, Int'l Security, Winter 1998/99, at 5-9; Thomas E. Ricks, The Widening Gap Between the Military and Society, Atl. Monthly, July 1997, at 66; David Wood, Duty, Honor, Isolation: Military More and More a Force unto Itself, Star-Ledger (Newark), Apr. 21, 1991, at A1.
n308. Of course, since contractors are often veterans and have self-selected to return to a martial vocation, perhaps the socio-cultural affinities to regular members of the Armed Forces exist even in the absence of any formal program of inculcation.
n309. See, e.g., Singer, supra note 20, at 213 (noting that privateers do not take an oath to uphold the Constitution); Christopher Marquis, Inquiry on Peru Looks at a C.I.A. Contract, N.Y. Times, Apr. 28, 2001, at A4 (describing how an Alabama-based private military company was responsible for the killing of civilians in Peru and characterizing the outrage of a government official who took note that the privateers were not operating under the Constitution, but rather "were just businessmen"); Singer, supra note 83, at 537 (noting that contractors cannot be disciplined under the UCMJ).

Under the 2000 Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261-67 (2000), Congress attempted to hold contractors criminally liable for acts committed in violation of the U.S. Code on foreign soil. See Guillory, supra note 47. However, the law is limited in its coverage and applies only to civilian contractors working for the Defense Department on U.S. military facilities. It does not, however, expand the substantive scope of criminal liability (and thus does not attempt to extend the UCMJ in toto to contractors). See Joseph R. Perlak, The Military Extraterritorial Jurisdiction Act of 2000: Implications for Contractor Personnel, 169 Mil. L. Rev. 92, 95-101 (2001); Singer, supra note 83, at 537-46. To make the UCMJ too comprehensive and too broad in its applicability to contractors, could pose constitutional questions regarding Congress's ability to regulate non-military personnel. See infra notes 312, 339, 444-45.



But see Vanessa Blum, DoD's New War Zone Rules for Contractors, Legal Times, Apr. 19, 2004, at 1. Blum notes that the Pentagon has proposed rules to place greater liability on contractors and also to permit military commanders to alter government contracts in the field, thus "reducing red tape for companies working under increasingly dangerous conditions." Id. The increased level of corporate liability may, however, make it more likely that contractors, knowing the government may not cover losses, will flee rather than suffer personal injury as well as damage to sensitive equipment. Moreover, giving military commanders authority to alter contracts opens the door for even less civilian control and legal oversight of military privateers.
n310. See supra notes 305-07 and accompanying text. Likewise, as noted above, see supra note 308, since many are former members of the U.S. Armed Forces, they may very well have been instilled with the same esprit de corps. Yet because they no longer face the same rigid discipline and command structure and are no longer embedded in a separate community of soldiers, it is uncertain what degree of commitment and self-sacrifice exists among contractors.
n311. See Metzger, supra note 39, at 1462 (noting that permitting a private actor to carry out tasks "on behalf of government is what makes ... private delegations particularly threatening to the principle of constitutionally-constrained government" and suggesting that when private actors "effectively step[] into the government's shoes in its dealings with third parties, private entities are more likely to have access to powers that are distinctly governmental"); see also DiIulio, supra note 6, at 155-57 (contending that in the context of prison management, the profit motive is incompatible with the types of non-economic services being administered); Michaels, supra note 6.
n312. Indeed, in the wake of the horrific sex-slave scandals perpetrated by DynCorp officials in Bosnia, no employees - save the whistleblowers - were fired. See Singer, supra note 83, at 525, 538; Jennifer Murray, Note, Who Will Police the Peace-Builders?, 34 Colum. Human Rights L. Rev. 475, 505-06 (2003) (noting the dismissal of a DynCorp employee for disclosing evidence that her colleagues were involved in sex-trafficking practices); Antony Barnett & Solomon Hughes, British Firm Accused in U.N. "Sex Scandal," The Observer (London), July 29, 2001, at 4.
n313. Courts historically have been reluctant to support statutory or private schemes whereby satisfactory performance of contracts can be enforced by threat of imprisonment. See Bailey v. Alabama, 219 U.S. 219, 243 (1911); Karen Gross, The Debtor as Modern Day Peon: A Problem of Unconstitutional Conditions, 65 Notre Dame L. Rev. 165, 181 (1990); Anthony Kronman, Specific Performance, 45 U. Chi. L. Rev. 351 (1978). For discussions of courts refusing to endorse any contractual schemes under which failure to meet the terms are grounds for imprisonment, see Bernard Schwartz, Statutory History of the United States: Civil Rights, Part I, at 159-72 (1970); 2 Bernard Schwartz, A Commentary on the Constitution of the United States: Rights of the Person 801-07 (1968); 2 Emerson, Haber, & Dorsen, Political and Civil Rights in the United States 517-20 (Norman Dorsen et al. eds., 4th ed. 1979); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases, 82 Colum. L. Rev. 646 (1982). It may be more likely that Congress would be permitted to legislate directly to criminalize certain affirmative actions that happen to correspond with contractual breaches (such as desertion qua breach of military contract), but it is beyond the scope of this Article to try to resolve that question.
n314. The harms associated with introducing privateers into combat situations are not simply on the order of accountability - that contractors might distort missions on the margins. Rather, the Armed Forces have been regulated "separately" precisely to ensure absolute and effective discipline over its members in ways that have no civilian analogues for public actors such as prison guards or welfare caseworkers serving in any other (domestic) capacity. Without the framework of military discipline, privateers may not be trusted with military orders. The same cannot be said about prison guards who, for argument's sake, may or may not be construed to be state actors. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72-73 (2001); Richardson v. McKnight, 521 U.S. 399, 413 (1997). Private guards can disobey orders to the same extent as state guards, and vice versa. Both sets of guards would be subject to dismissal and possibly monetary liability. But in the military context, a soldier who disobeys an order could go to jail - whereas a contractor, most likely, is just sent home. In other words, the status differentials between soldiers and contractors (or any other civilians for that matter) define the very nature of the U.S. Armed Services - and this constitutionally separate community is organized precisely to control and discipline its members in ways far more restrictive than that allowable in the realm of civilian law. See supra notes 296, 308-09.
n315. As Singer notes:

One essential difference between exit by private employees and by those in public institutions is that leaving a PMF post is not desertion - punishable by prosecution and even death, but merely the breaking of a contract with limited enforceability. The simple matter is that no equivalent enforcement exists for PMFs to prevent desertion by their employees.



Singer, supra note 20, at 159; see also id. (noting that an entire firm or a select set of employees may break agreements with client governments if matters become unexpectedly dangerous, with the only repercussion being economic); Turner & Norton, supra note 42, at 38-41; Ariel Hart, Solider Who Refused To Return Is Found Guilty, N.Y. Times, May 22, 2004, at A10 (describing the prosecution of a soldier who refused to deploy to Iraq).
n316. Bianco & Forest, supra note 30, at 72; see 2000 Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261-67 (2000); Gibson, supra note 44; Glenn R. Schmitt, Closing the Gap in Criminal Jurisdiction Over Civilians Accompanying the Armed Forces Abroad, 51 Cath. U. L. Rev. 55 (2001); Turner & Norton, supra note 42, at 21 ("The degree of authority a commander holds over these civilians is significantly different than that held over combatants. Commanders are accustomed to issuing orders and having unity of command over their assigned and attached personnel."); Wayne, supra note 2 (describing how a commander cannot give orders to a contractor with the same authority he can to a soldier); see also Andrew M. Ferris, Military Justice: Removing the Probability of Unfairness, 63 U. Cin. L. Rev. 439, 446 (1994) (describing how, in attempting to combat desertion during the Revolutionary War, General George Washington ordered public execution of deserters with mandatory attendance by the members of the condemned soldier's unit). See generally Maj. Gen. Jack Rives & Maj. Steven J. Ehlenbeck, Civilian Versus Military Justice in the United States: A Comparative Analysis, 52 A.F. L. Rev. 213 (2002) (focusing on criminal remedies).
n317. As I have repeatedly tried to remind readers, the differences are of degree, not kind. American military personnel have too been accused of desertions and of failing to report for duty. But in those situations, they are exposed to criminal punishments. See, e.g., Army Says It Will Punish Convoy Officers, N.Y. Times, Oct. 21, 2004, at A10 (noting that a number of soldiers will be prosecuted as a result of the convoy incident); Banerjee & Hart, supra note 96 (noting the detention of eighteen reservists for refusing to go on a convoy mission in Iraq); James Dao, Soldier Who Seized Car in Iraq Is Convicted of Armed Robbery, N.Y. Times, July 30, 2004, at A9; Ricks, Probe, supra note 96 (describing how members of a South Carolina National guard unit were detained for going AWOL to see their families on the night before they shipped out to Iraq); see also Eric Schmitt, Its Recruitment Goals Pressing, the Army Will Ease Some Standards, N.Y. Times, Oct. 1, 2004, at A24 (describing the criminal charges filed against former soldiers who failed to mobilize when called up as members of the Individual Ready Reserve).
n318. See, e.g., Osiel, supra note 291, at 952-55; see also Mockler, supra note 23 (noting that private contractors are often more likely to flee a dangerous situation and ignore orders/requests to stay by military colleagues); Barry McCaffrey, Role of the Armed Forces in the Protection and Promotion of Human Rights, 149 Mil. L. Rev. 229, 236-37 (1995) (emphasizing the moral and legal training given to military officers to promote ethical practices and to deter human rights abuses).
n319. Singer, supra note 20, at 161 (noting that "military commanders cannot assume that PMF personnel will stay on the battlefield, or even in the theater").
n320. See id. at 139-40 (describing the mass civilian support staff exodus from the Korean peninsula when tensions flared); see also Eric A. Orsini & Lt. Col. Gary T. Bublitz, Contractors on the Battlefield: Risks on the Road Ahead?, Army Logistician, Jan./Feb. 1999, at 130-32; Turner & Norton, supra note 42, at 40. For historical precedents, see Singer, supra note 20, at 162. See also Lou Marano, Editorial, The Perils of Privatization; In a Crunch, Soldiers Can't Count on Civilian Help, Wash Post. May 27, 1997, at A15. Marano raises concerns that the contractors supporting American soldiers in the Balkans could abandon their responsibilities were their lives endangered. Id.
n321. See Guillory, supra note 47, at 140-41; see also Singer, supra note 20, at 161 (noting the distinct likelihood of civilian fleeing if threatened with weapons of mass destruction such as chemical or biological agents); Turner & Norton, supra note 42, at 40 (describing how "during Operation Desert Storm, food support contractor employees refused to perform until they were provided with chemical attack protective equipment").
n322. See Bianco & Forest, supra note 30, at 70 (noting that some military contractors have "refused to deploy to particularly dangerous parts of Iraq [and, as a result,] that soldiers had to go without fresh food, showers, and toilets for months"); see also President's Address to the Nation on Iraq, 39 Weekly Comp. Pres. Doc. 329 (Mar. 24, 2003) (emphasizing the fact that Saddam was stockpiling and ready to use Weapons of Mass Destruction); Henry J. Hyde, Editorial, Delivering Ourselves from Evil; Bush Is Laying the Foundation for a Comprehensive Root-and-Branch Approach to the Mortal Danger of the Proliferation of Weapons of Mass Destruction, Chi. Trib., Feb. 20, 2004, at C25 ("Every [U.S.] intelligence agency - along with the United Nations ... believed that the Iraqi regime possessed weapons of mass destruction prior to last year's invasion... .").
n323. Yeoman, supra note 4, at 93; see also Singer, supra note 20, at 162-63 (noting that at times military personnel, including cooks and secretaries, serving in rear support positions have been summoned to the frontlines to provide combat assistance such as during the Battle of the Bulge and, more recently, in Mogadishu).
n324. See supra note 104 and accompanying text.
n325. The fact that many of the contractors served in the U.S. military and were trained and inculcated within the command structures of the U.S. military narrows the values-integrity gap. Yet, it is unclear whether privateers, no longer enticed with the carrots associated with being a good soldier (such as receiving promotions and medals) and no longer disciplined by the sticks (of, say, a court-martial) that work to constrain the behavior of regular troops, embrace the same ethos of honor. Moreover, military firms may be unconcerned with promoting that ethos or even fostering an esprit de corps. Cf. Singer, supra note 20, at 153-58 (noting DynCorp's routine use of unqualified individuals for peacekeeping in Kosovo and for aircraft maintenance throughout the world). There may also be reasons why a firm would not want to encourage its agents to identify too closely with its sponsor nation, whether that nation be the United States or Equatorial Guinea, for fears of the contractors internalizing objectives outside the scope of the corporate enterprise.

Additionally, perhaps concerns about meshing private and U.S. troops take on heightened importance as we consider the possibility of "friendly fire" risks. An issue during the first Gulf War, see, for example, Eric Schmitt, U.S. Striving To Prevent "Friendly Fire," N.Y. Times, Dec. 9, 1991, at A12, perhaps it will become an issue once again in light of the much-publicized death of former football star Pat Tillman. See Roland Watson, All-American Icon Was Shot Dead in Blunder by Own Platoon, Times (London), May 31, 2004, at 11. Certainly, one might speculate that privateers and soldiers working with different equipment and acting pursuant to different sets of command structures may increase the likelihood of a tragic mistake occurring on the field of combat. See, e.g., Priest & Flaherty, supra note 4 (characterizing how difficult it has been for private military firms to communicate with the American military, as well as with other firms, in Iraq); see also Fay Report, supra note 107 (noting how some of the problems at Abu Ghraib were exacerbated by poor communication between the contractors and the soldiers); Taguba Report, supra note 106 (same).



Moreover, international law's inhospitable treatment of armed civilians makes contractors, oftentimes, unlikely to carry weaponry. To do otherwise may place them in an "unprotected" status if captured as a prisoner of war. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 47, reprinted in The Laws of Armed Conflicts 649 (Dietrich Schindler & Jiri Toman eds., 3d ed. 1988) (entered into force Dec. 7, 1978). Article 47 of Protocol I of the Geneva Conventions of 12 August 1949 "removed the protection of combatant of prisoner of war status from mercenaries." David Kassebaum, Note, A Question of Facts - The Legal Use of Private Security Firms in Bosnia, 38 Colum. J. Transnat'l L. 581, 589 (2000); see also id. at 589 n.50; Thomas K. Adams, The New Merceneries and the Privatization of Conflict, Parameters, Summer 1999, at 103; Wayne, supra note 2. Consequently, if besieged, they may prove unable to defend themselves; thus, their presence on the battlefield places an additional burden on the regular troops to safeguard them while still attending to their own functions. Bianco & Forest, supra note 30, at 70 (noting that contractors often depend on "their military customers for protection in combat zones").
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