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



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n326. Neela Banerjee & John Kifner, Along with Prayers, Families Send Armor, N.Y. Times, Oct. 30, 2004, at A1; Davey, supra note 206; Bob Herbert, Editorial, War on the Cheap, N.Y. Times, Dec. 20, 2004, at A29; Hockstader, supra note 206; Ricks, supra note 206; see also Editorial, Ill-Serving Those Who Serve, N.Y. Times, July 6, 2004, at A18; Thom Shanker, Military Plans to Call Up Soldiers Who Left Service, N.Y. Times, June 30, 2004, at A10.
n327. See, e.g., Stephen Peter Rosen, Societies and Military Power 268 (1996) (noting how the U.S. military takes steps to keep its soldiers separate from the civilian society at large).
n328. See Bruce D. Grant, U.S. Military Expertise for Sale: Private Military Consults as a Tool of Foreign Policy, in Essays 1998, at 89, 91 (National Defense University Press 1998), available at http://www.ndu.edu/inss/books/books%20-%201998/Essays1998/ESSAY98.pdf (last visited Dec. 9, 2004) (noting that military privatization has a corrupting effect on the U.S. military and creates a dispirited army). Introducing money differentials and separate housing installations may further contribute to a sense of alienation and breakdown in morale. Bianco & Forest, supra note 30, at 71, 72, 78 (noting that members of the military have expressed doubts whether contractors would possess the loyalty to support frontline soldiers in times of crisis).
n329. See, e.g., Priest, supra note 47, at 44 (noting that the joint chiefs, including Chairman Colin Powell, would have resigned if President Clinton "pursued his campaign promise to allow gays to serve openly in the armed forces"); David Hackworth, Editorial, The Case for a Military Gay Ban, Wash. Post, Jun. 28, 1992, at C4; Tom Morganthau, Gays and the Military, Newsweek, Feb. 1, 1993, at 52. But see Nathaniel Frank, Editorial, Why We Need Gays in the Military, N.Y. Times, Nov. 28, 2003, at A43 (indicating the ban on gay soldiers is counterproductive, harms morale, and undermines national security).
n330. Jeffrey W. Anderson, Military Heroism: An Occupational Definition, 12 Armed Forces & Soc'y 591 (1986); Karst, supra note 286, at 573 (focusing on the extent to which bonding and camaraderie in military units engenders acts of heroism and self-sacrifice); Osiel, supra note 291, at 1053-55 (commenting on how the cohesive bonds of military communities help prepare soldiers for the difficulties of battle and fortify their courage so as not to disappoint their colleagues); see also Craig M. Cameron, American Samurai 192 (1994) (noting that small military units foster a shared sense of purpose that helps individuals perform well under intense duress).
n331. Singer, supra note 83, at 536-37; The Baghdad Boom, supra note 103 ("The rising profitability of private sector [military] work is tempting unprecedented numbers of [Britain's elite soldiers] to leave."); Dao, supra note 4 (noting that private military firms "are offering yearly salaries ranging from $ 100,000 to nearly $ 200,000 to entice senior military Special Operations forces to switch careers. Assignments are paying from a few hundred dollars to as much as $ 1,000 a day"); Eric Schmitt & Thom Shanker, Big Pay Luring Military's Elite To Private Jobs, N.Y. Times, Mar. 30, 2004, at A1.
n332. See Addicott & Hudson, supra note 245, at 154 ("The American military has an incredible reservoir of noble and fantastic figures to draw from - men whose military proficiency and ethical conduct in combat have maintained an impeccable American reputation for both battlefield excellence and strict adherence to the laws regulating warfare."); Osiel, supra note 291, at 955-56 (describing the military's efforts to instill an ethos of honor and dignity in its soldiers); see also David L. Englin, Troop Movement, New Republic, Aug. 18, 2004, available at http://www.tnr.com/doc.mhtml?i=express&s=englin081804 (last visited Dec. 12, 2004) (describing how the U.S. military's "mandatory briefings, military public service announcements, and admonishments from commanders and teachers [serve] constantly [to] remind [soldiers and their families] that they are ambassadors of all things American").
n333. Craig S. Smith, The Intimidating Face of America, N.Y. Times, Oct. 13, 2004, at A4.
n334. See Walter E. Boomer et al., Facing My Lai: Moving Beyond the Massacre 153 (David L. Anderson ed., 1998) (describing the U.S. military's use of moral teachings gleaned from failures in Vietnam); Addicott & Hudson, supra note 245, at 154.

The United States military can take full credit for its commendable record in adhering to the law of war largely because of its commitment to institutionalizing the lessons learned from My Lai. Accordingly, every American soldier must understand the significance of the My Lai massacre and steadfastly must keep it in the forefront of his or her conscious.



Id. at 160-61 (describing the government's attempt to punish such transgressions by way of military investigations and courts-martial); McCaffrey, supra note 318, at 232 (emphasizing the important lessons inculcated in soldiers to prevent any reoccurrences of human rights violations such as occurred in My Lai); Steve Sheppard, Passion and Nation: War, Crime, and Guilt in the Individual and Collective, 78 Notre Dame L. Rev. 751, 779 (2003) (noting that "the only saving grace from this sordid passage [in My Lai] is that the U.S. military ... established training regimes to enhance compliance with the laws of land warfare"); see also Colin Powell, The Day We Stopped the War, Newsweek, Jan 20, 1992, at 18 (suggesting that it would be "un-American and unchivalrous" to attack retreating Iraqis during the first Gulf War).
n335. See, e.g., Peter Singer, Editorial, Beyond the Law: The Abuse of Iraqi Prisoners by US Personnel Shows that Outsourcing Military Jobs Has Gone Too Far, Guardian (London), May 3, 2004, at 16 ("We're appalled [by the prison abuse scandals]. These are our fellow soldiers ... they wear the same uniform as us ... these acts may reflect the actions of individuals but, by God, it doesn't reflect my army.") (quoting Brigadier General Mark Kimmit); see also Addicott & Hudson, supra note 245, at 180 (noting that "civilized societies will not provide the necessary homefront support for an army that it perceives to be acting in violation of the law of war"); Cox, supra note 298, at 10-11 (noting that during World War II, over two million courts-martial were commenced, indicating the importance of the UCMJ in regulating military behavioral patterns).
n336. See supra note 109 and accompanying text.
n337. See, e.g., Tom Bowman, Soldier Guilty in Iraq Abuses, Balt. Sun, Oct. 21, 2004, at 1A; Dexter Filkins, G.I. Pleads Guilty in Court-Martial for Iraqis' Abuse, N.Y. Times, May 20, 2004, at A1; Thom Shanker & Dexter Filkins, Army Punishes 7 with Reprimands for Prison Abuse, N.Y. Times, May 7, 2004, at A1; Jackie Spinner, MP Gets 8 Years for Iraq Abuse, Wash. Post, Oct. 22, 2004, at A20; see also Hendren & Mazzetti, supra note 22 (noting the ease with which soldiers can be punished relative to contractors).
n338. See Fay Report, supra note 107; Schlesinger Report, supra note 108; Taguba Report, supra note 106; see also Ann Scott Tyson, US Military in Afghanistan Overhauls Prison Procedures, Christian Sci. Monitor, June 23, 2004, at 7 (noting the number of official reports generated and suggesting that the "commanders' willingness to exercise their prerogative to undertake investigations demonstrates how seriously they take any hint of wrongdoing").
n339. See Editorial, Abuse by Outsourcing, Wash. Post, May 26, 2004, at A26 (noting how much quicker the Pentagon could act to prosecute the accused soldiers at Abu Ghraib than it could work to dismiss the private contractors); Avant, supra note 109; Joel Brinkley & James Glanz, Contract Workers Implicated in February Army Report on Prison Abuse Remain on the Job, N.Y. Times, May 4, 2004, at A6; Farah Stockman, Civilians ID'd in Abuse May Face No Charges, Boston Globe, May, 4, 2004, at A1; see also Adam Liptak, Who Would Try Civilians From U.S.? No One in Iraq, N.Y. Times, May 26, 2004, at A11 (characterizing how difficult it would be to prosecute civilian contractors for even the most flagrant of violations overseas).
n340. See supra note 83 and accompanying text.
n341. Singer, supra note 83, at 538; see also Crewdson, supra note 83.
n342. See supra note 312 and accompanying text.
n343. See, e.g., Addicott & Hudson, supra note 245, at 180-81 (characterizing how easily a few transgressions threaten the confidence and assuredness of the entire military forces); see also Sherri Day, Near Reservists' Base, Disappointment at Accusations of Abuse, N.Y. Times, May 3, 2004, at A11.
n344. See Thomas L. Friedman, Editorial, Restoring Our Honor, N.Y. Times, May 6, 2004, at A35 (noting that the Bush administration must take decisive steps to regain the trust and confidence of the world community); Paul Krugman, Editorial, America's Lost Respect, N.Y. Times, Oct. 1, 2004, at A27 ("Both the revelations and the cover-up [in Abu Ghraib] did terrible damage to America's ... authority. To much of the world, America looks like a place where top officials condone and possibly order the torture of innocent people, and suffer no consequences."); Editorial, The Roots of Abu Ghraib, N.Y. Times, June 9, 2004, at A22 (blaming civilian leaders in Washington for the prisoner-abuse scandal); Thom Shanker, At Iraqi Prison, Rumsfeld Vows To Punish Abuse, N.Y. Times, May 14, 2004, at A1; cf. Dao, supra note 317 (characterizing the court-martial of a soldier allegedly ordered to commandeer a car as designed to "send[] a message to both American troops and Iraqi authorities that [the military] will not tolerate soldiers who violate the rights of Iraqi civilians").
n345. Although the tangible harms may manifest themselves in ways similar to what we expect (and observe) in more conventional privatization realms, underlying those harms in the military context are deeper, structural concerns that are qualitatively unlike those found in domestic domains. Again, this point turns on an appreciation of the constitutional distinctiveness of the military community - and of how the legitimacy of the military in good part depends on its unique status in the larger American legal and social order. Accordingly, whereas profit motives may equally distort the incentives of private sanitation workers as well as military privateers, only in the latter case do those distortions threaten to undermine the entire architecture of civil-military relations.
n346. Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, U.N. ESCOR, 50th Sess., Agenda Item 9, at 15, U.N. Doc. E/CN.4/1994/23 (1994) (noting that financial considerations may motivate paid combatants to prolong the war); Paul W. Mourning, Leashing the Dogs of War: Outlawing the Recruitment and Use of Mercenaries, 22 Va. J. Int'l L. 589 (1982); Sapone, supra note 50, at 4 ("Because the business of mercenaries is war, they have no incentive to encourage the peaceful resolution of the conflict.").
n347. See The Baghdad Boom, supra note 103 (describing the upsurge in demand for privatized military services since the outbreak of conflict in Iraq); Singer, supra note 28.
n348. See Singer, supra note 20, at 232 (noting how privateers have viewed the events of September 11 as both increasing demand for their services and increasing the public's willingness to accept contractors undertaking national security responsibilities).
n349. See id. at 157 (noting how contractors tasked with clearing minefields are likely to ignore rural roads that involve greater danger, expense, and effort); Grant, supra note 328 (suggesting that military privatization has a corrupting effect on the U.S. military and creates a dispirited army). Moreover, as Professor Howe describes, soldier-of-fortune "pilots for Nigeria during the Civil War (1967-1970) deliberately failed to bomb Biafra's single airport: since their salaries were based on months and not results, their prolongation of the war procured financial gain." Howe, supra note 44, at 4. Of course, this moral hazard exists in any contractual relationship - but usually does not take on a life-and-death gravity.

There also may be an impulse toward self-preservation at play: in the late 1990s, when the Ethiopians hired a Russian firm to conduct aerial offensives in its war with Eritrea, the fighters would bomb civilian targets, but would studiously avoid engaging the Eritrean air force in combat. See Singer, supra note 20, at 158.


n350. See Cooper, supra note 22.
n351. See Singer, supra note 20, at 151-57 (describing how particularly difficult it is to monitor contracts when the assignments are complex and standards of performance are not easily designed).
n352. See id. at 158 (noting that a client's interests may be subordinated when the private firm has some commercial incentive to create more work for itself or for an affiliated private firm).
n353. Enrique Bernales Ballesteros, UN Press Release 5 Nov. 1996, U.N. Doc. GA/SHC/3376 (1996); see also G.A. Res. 47/84 U.N. GAOR, 47th Sess., Supp. No. 84, at 165, U.N. Doc. A/47/84 (1992).
n354. Blum, supra note 309 (characterizing proposals to make military contracting more open-ended by giving military commanders authority to change the terms of a military contract).
n355. See Savas, supra note 3 (suggesting that the more difficult a task is to define clearly and authoritatively, the more difficult it will be for there to be effective oversight); Trebilcock & Iacobucci, supra note 8, at 1444-45 (indicating that it is very difficult to design contracts that effectively constrain contractors' behavior when the assignments call for a broad delegation of responsibilities).
n356. See Freeman, supra note 6, at 161.
n357. See, e.g., Selective Draft Law Cases, 245 U.S. 366, 367 (1918) ("The very conception of a just government and its duty to the citizen includes the duty of the citizen to render military service in case of need and the right of the government to compel it."); Morris Janowitz, Military Conflict 70-88 (1975) (characterizing military service as a constitutive right and duty of citizenship); Sebastian De Grazia, Political Equality and Military Participation, 7 Armed Forces & Soc'y 181, 185 (1981) ("The possessor of equal political rights, ... the citizen, was in origin a soldier... ."); Karst, supra note 286, at 501 (noting the special, privileged place the Armed Forces occupy in the United States); Linda K. Kerber, "A Constitutional Right To Be Treated Like ... Ladies": Women, Civic Obligation and Military Service, 1993 U. Chi. L. Sch. Roundtable 95, 119 (noting the ancient connection between arms-bearing military service and citizenship).
n358. See U.S. Const. art. I, 9 ("No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any ... Office, or Title, of any kind whatever, from any King, Prince, or foreign State.").
n359. As Gordon Wood notes:

George Washington, of course, was the perfect Cincinnatus, the Roman patriot who returned to his farm after his victories in war... . The greatest act of [Washington's] life, the one that gave him the greatest fame, was his resignation as commander in chief of the American forces... . Washington stunned the world when he surrendered his sword to the Congress on December 23, 1783, and retired to his farm at Mount Vernon.



Gordon S. Wood, The Radicalism of the American Revolution 205 (1991).
n360. McCullough, supra note 27, at 102-04, 142-43.
n361. See John Withrop Hackett, The Military in the Service of the State, in War, Morality, and the Military Profession 107, 110 (Malham W. Wakin ed., 1979) (noting the ethos within democratic nations that the military exists to serve the state rather than for any other self-aggrandizing purpose); Clark, supra note 45 (describing the American military across generations as a citizen army that achieved victory and then "wanted to go home").
n362. Indeed, unlike elsewhere across Europe as well as across the developing world, American soldiers have not used their military resources and popular appeal to seize control over the political institutions of government and stage a coup.
n363. See, e.g., Linda Kerber, No Constitutional Right To Be Ladies 236 (1998) (citing the toast proposed by John Jay's wife, Sarah: "May all our Citizens be Soldiers, and all our Soldiers Citizens."); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition 544 (1975) (describing the American tradition of intimately connecting citizenship and military service); see also Philip Gold & Erin Solaro, Editorial, PMCs in the Arsenal, Wash. Times, Sept. 2, 2003, at A14 (noting strong historical link between citizenship and participation in the national defense).
n364. See Richard Hofstadter, Anti-Intellectualism in American Life 194 (1963) (citing Theodore Roosevelt as suggesting the "good American" would possess the hardy virtues of a soldier: "the virile fighting qualities without which no nation ... can ever amount to anything"); id. at 195-96 (indicating the principal demonstration of patriotism and heroism is through military service); Kerber, supra note 363.
n365. See Dan Balz, Citing His Vietnam Service, Kerry Assails Cheney, Rove, Wash. Post, Apr. 17, 2004, at A4; Adam Nagourney & Jodi Wilgoren, Kerry Questions Bush Attendance in Guard in 70's, N.Y. Times, Apr. 27, 2004, at A3; Katharine Q. Seelye, Cheney's Five Draft Deferments During the Vietnam Era Emerge as a Campaign Issue, N.Y. Times, May 1, 2004, at A1; see also Michael Duffy, How Well Did He Serve?, Time, Feb. 23, 2004, at 22 (describing the potential importance of President George W. Bush's military record in his reelection bid).
n366. Kerber, supra note 363 (describing how women's lack of military experience disadvantages them in the workforce and more dramatically in their quests for elected office); William N. Eskridge, Jr., The Relationship Between Obligations and Rights of Citizens, 69 Fordham L. Rev. 1721, 1744 (2001) ("Like prior exclusions [by the U.S. Armed Forces] of women and people of color, the exclusion of GLB people in effect disrespects them as second-class citizens. All citizens should be able and obliged to serve and help defend this country."); Karst, supra note 286, at 500, 516-18, 525, 545-49 (noting the larger symbolic effects of excluding women, minorities, and homosexuals from full participation in the U.S. military); Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, 7 Women's Rts. L. Rep. 175, 190 (1982) (noting how not giving women opportunities to be drafted and to serve in combat details deprives them of taking part in some of the principal responsibilities of citizenship); see also Mimi Kelber, Combat in the Erroneous Zone, Nation, July 25-Aug. 1, 1981, at 71 (describing a NOW legal brief that detailed how women's exclusion from the draft and combat duty "injures their self-perception, reinforces the stereotypes of women as weak" and also noting how failing to serve in the military diminishes women's social and economic standing in the United States).
n367. See, e.g., Dunlap, supra note 184, at 365-66 (noting that since Congress ended the draft, service is no longer considered to be a near-universal obligation); Mazur, supra note 307, at 606; Eliot A. Cohen, After the Battle: A Defense Primer for the Next Century, New Republic, Apr. 1991, at 19; see also Charles Moskos, From Citizens' Army to Social Laboratory, Wilson Q., Winter 1993, at 83, 86-87 (insisting that military service is no longer a rite of passage for American politicians).
n368. See, e.g., Mazur, supra note 307, at 569 (suggesting that as the military shifts toward being an all-volunteer outfit, Americans' admiration for it may actually grow); Pamela Paul, Attitudes Toward the Military, Am. Demographics, Feb. 2002, LEXIS, News & Business, News; Robin Toner, Trust in the Military Heightens Among Baby Boomers' Children, N.Y. Times, May 27, 2003, at A1 (noting Americans' close symbolic and emotional connection to the military).
n369. See, e.g., Singer, supra note 20, at 204. Singer writes:

In the United States, the military is the most respected government institution in the American public's judgment, consistently ranking among the highest esteemed professions. This stems from the perceived integrity and values of the soldiers within it and the spirit of selfless service embedded in their duty on behalf of the country.

Id. (internal citation omitted); see also Gallup Organization, Military on Top, HMOs Last in Public Confidence Poll (July 14, 1999), available at http://www.gallup.com/poll/releases/pr990714.asp (last visited Dec. 9, 2004); Dunlap, supra note 184, at 354 (quoting a Harris poll spokesperson reporting in 1993 that "no other major institution, profession, or interest group comes close to the military" in terms of public approval ratings); Dunlap, supra note 146, at 101 ("To Americans, those wearing uniforms collectively are the most trusted part of the citizenry well ahead of organized religion, universities, and every branch of government."); Mazur, supra note 307, at 569 (describing how Americans "romanticize and idealize the military" and reserve a "special pedestal for those who serve in uniform"); Marano, supra note 320 (describing the unsung heroism of military cooks during the Vietnam War as something unique to the Armed Forces); Steven V. Roberts & Bruce Auster, Colin Powell, Superstar, U.S. News & World Rep., Sept. 20, 1993, at 48 ("At a time when a growing number of Americans are disillusioned with government ... the military stands in singular counterpoint to that disillusionment.").
n370. See, e.g., Peter Karsten, The Naval Aristocracy: The Golden Age of Annapolis and the Emergence of Modern American Navalism 64-68 (1972); Christoper McKee, A Gentlemanly and Honorable Profession: The Creation of the U.S. Naval Officer Corps, 1794-1815, at 296 (1991); Nicholas Parrillo, Deprivatization of American Warfare (June 2004) (working draft, Yale University) (on file with author).
n371. For an examination of the connections between military service and civil rights, see Mary L. Dudziak, Cold War Civil Rights (2000); Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America (1999). For an examination of political rights, see Kerber, supra note 363. And, for an examination of economic rights, see Theda Skocpol, Protecting Soldiers and Mothers (1992).
n372. See, e.g., Keyssar, supra note 285, at 14, 46, 342-43; Karlan, supra note 282, at 1346-48; Scarry, supra note 267, at 1304.
n373. See 1 Bruce Ackerman, We the People 75 (1991); Keyssar, supra note 285, at 32-52; Chilton Williamson, American Suffrage from Property to Democracy 190 (1960).
n374. As W.E.B. Dubois said: "Nothing else made Negro citizenship conceivable, but the record of the Negro soldier as a fighter." W.E.B. Dubois, Black Reconstruction in America 104 (1935). As Linda Kerber has stated:

The Emancipation Proclamation itself merged emancipation and arms-bearing, welcoming into the armed service of the United States the people whom Lincoln declared free. For enslaved blacks, arms-bearing for the Union was an experience that came before citizenship and helped to set the terms for it. Black men risked their lives for the Union long before the Thirteenth Amendment, and the claim that they had bought their rights with their blood suffused constitutional debate and also the discourse of Reconstruction.



Kerber, supra note 363, at 243; see also Keyssar, supra note 285, at 88 ("General William Tecumseh Sherman himself noted, "when the fight is over, the hand that drops the musket cannot be denied the ballot.'"); Vikram David Amar & Alan Brownstein, The Hybrid Nature of Political Rights, 50 Stan. L. Rev. 915, 932 (1998) ("Blacks as individuals had earned the right to vote by their participation in Union armies during the war. No country with integrity could accept a person's service in arms to save the nation and then repudiate that same individual by denying him the right to vote."); Karst, supra note 286, at 513 ("The moment was ripe for a triumphant ending in which the wartime sacrifices of black men vindicated the claims of black people to full citizenship... . After the war three constitutional amendments and a package of Reconstruction civil rights acts not only abolished slavery, but promised black Americans equal citizenship, including the equal right to vote.").
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