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



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n375. Dudziak, supra note 371, at 9-10, 87-88 (describing how the moral messages associated with fighting for the freedom of other peoples and the exemplary service of black soldiers pushed the Civil Rights Movement forward); Karlan, supra note 285; Karst, supra note 286, at 502 ("The issue of full citizenship for black people was never far below the surface of the question of black participation in the Army and the militia."); id. at 518-20 (describing civil rights advancements linked to participation in World War II and the Korean War).
n376. Kerber, supra note 363, at 221 (describing how the political laurels of military service fell disproportionately on men and noting how even when women volunteered to serve, their participation was understood outside the bounds of the normal civic republican narrative).
n377. Amar & Brownstein, supra note 374, at 963 (characterizing President Wilson's support for the Nineteenth Amendment as grounded in part in his appreciation of women's service during World War I); Karlan, supra note 282; see also Kerber, supra note 363 (describing the legal battles fought by Helen Feeney to be treated on the same footing for employment opportunities as those who served their country in the Armed Services).
n378. See, e.g., T.H. Marshall, Citizenship and Social Class (1950); William E. Forbath, Constitutional Welfare Rights, 69 Fordham L. Rev. 1821 (2001); Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964); Jon D. Michaels, Note, To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights, 111 Yale L.J. 1457, 1485 (2002).
n379. During World War II, Congress passed the G.I. Bill and rewarded veterans with pensions, housing and education subsidies, as well as health-care benefits. See, e.g., Servicemen's Readjustment Act of 1944, Pub. L. No. 346, 58 Stat. 284 (1944) (providing education stipends, favorable loans for home and business purchases, and generous unemployment benefits). And prior to that, Civil War veterans were offered "an entire edifice of honorable income supplements and institutional provisions." Skocpol, supra note 371, at 7. Indeed, even the National School Lunch Program - and improving the nutrition of low-income families more generally - was championed by General Hershey, who was the director of the Selective Service during World War II, to help soldiers. See Susan Lynn Roberts, Note, School Food: Does the Future Call for New Food Policy or Can the Old Still Hold True?, 7 Drake J. Agric. L. 587, 593-94 (2002) (noting that America's war efforts were severely hampered by high rates of malnutrition among entering conscriptees). But see Stephen Barr, Advocates for Activated Guards, Reserve Troops Renewing Calls for Pay Relief, Wash. Post, Nov. 11, 2004, at B2; Barbara Ehrenreich, Bush's Odd Warfare State, Progressive, Apr. 2004, at 24 (noting that many soldiers require food stamp supplements to make ends meet and indicating that President Bush had suggested the possibility that he would propose cutting soldiers' combat pay); Ian Williams, Bush's War Against the Military, In These Times, Nov. 15, 2004, at 22 (noting the Administration's recent cutbacks in disability benefits and pensions for veterans).
n380. See Halberstam, supra note 119, at 111-12 (describing Senator Bob Kerrey in 1992 as an ideal presidential candidate because of his war record, which included a Congressional Medal of Honor); James M. Perry, Touched with Fire: Five Presidents and the Civil War Battles that Made Them (2003); John Wheller, Coming to Grips with Vietnam, Foreign Aff., Spring 1985, at 74 (noting how important military service in Vietnam has been to office-seekers despite the fact that the Vietnam War remains politically divisive and unpopular); Frank Bruni, There's Something About a Candidate in Uniform, N.Y. Times, Oct. 24, 1999, at D3; James Carney, Playing the POW Card, Time, Sept. 6, 1999, at 44; Sheryl Gay Stolberg, A War Is Nice on the Resume, But It May Not Get You the Job, N.Y. Times, Sept. 28, 2003, at D3; see also The Search for the Perfect President, Economist [H.W.], Nov. 18, 1995, at 93. The Economist writes:

In all, seven generals have reached the White House. At least ten have been declared papabile by the population at large. A raft of presidents, besides, have used a stint of soldiering to burnish their resumes. Teddy Roosevelt's jungle-hopping imperialism was much enhanced by his earlier adventures with the Rough Riders and his charge up San Juan Hill. George [H.W.] Bush derived what profit he could from being the youngest American pilot on second-world-war service in the Pacific. Bob Dole's withered arm, shot up in Italy, is his most reliable campaign credential. The reason is clear. Soldiers do difficult things despite appalling danger; they, above all others, should be able to cut through the tape of bureaucracy and take faint-hearted nations by the scruff of the neck. When they are heroes, they are charismatic to the level of film stars.



Id.
n381. Stolberg, supra note 380; see also Kaplan, supra note 293 (noting the importance politicians place on securing the endorsement of retired military leaders).
n382. See Adams, supra note 325 ("A military force that is drawn from the people of a given nation and dedicated only to the defense of that nation is seen as an expression of the consent of the governed. They legitimize their government by their desire to defend it."); Karst, supra note 286, at 501 ("Our popular culture repeatedly confirms our attachment to this democratic, unifying ideal [of the U.S. military]. Consider the typical war movie, in which the soldiers' faces tacitly represent our ethnic diversity, and the roll call reminds us more explicitly that our many cultures add up to one nation: Abrams, Anderson, Arenella, Crenshaw, Dukeminier, Garcia, Graham, Matsuda, Munzer, Warren."); Paul, supra note 368; Toner, supra note 368; World News Tonight with Peter Jennings (ABC News television broadcast, Apr. 30, 2004) (quoting a spokesperson for the Veterans of Foreign Wars as saying that "we need to memorize those faces [of the killed soldiers], know their names ... America should get down on their hands and knees and give thanks for them.").
n383. See Rosky, supra note 6, at 922-23 (emphasizing the salience of symbols and rituals within citizen-military culture); Clark, supra note 45 (capturing the moral symbolism of America's all-volunteer army as "citizens first, soldiers second"); Michael J. Sandel, What Money Can't Buy: The Moral Limits of Markets, in The Tanner Lectures on Human Values 89, 112-14 (1998), available at www.tannerlectures.utah.edu/lectures/sandel00.pdf (last visited June 27, 2004) (contending that there are great civic virtues in citizen armies that cannot be replicated when armies become for-hire institutions).
n384. See Dunlap, supra note 146, at 100 ("The persisting ideal of the American-at-arms is the altruistic yeoman farmer who lays down his plow to take up arms for the duration, always nevertheless intending to return to the responsibilities of family and farm at the very first opportunity. It would be a great mistake to underestimate how deeply embedded this archetype still remains in American culture.") (emphasis added).
n385. See Singer, supra note 20, at 216 (noting that private soldiers "directly benefit from the existence of war and suffering; it is a precursor to their hire"). Of course, this is a difficult proposition because one would suspect that many American privateers would identify themselves as patriots of the first order, and who signed up with DynCorp or Blackwater to get another chance to see combat duty. The differences between soldiers and contractors, then, may be largely perceptual: We can, after all, imagine some contractors being infinitely more "gung-ho" about an additional tour of duty than members of the volunteer Army - ostensibly the epitome of the patriot-citizen - who may be second-guessing their decision to sign up for military service mainly to get the government to pay for their schooling.
n386. To an extent, we can draw a parallel between the idealization of the citizen-soldier and the family farmer. Like the soldier who protects both our ideals and physical security, the farmer feeds our people and nourishes our psychic connections to our agrarian, Jeffersonian roots. The farmer too, is often given special and preferential economic and political treatment. The decline of the family farmer, and his replacement by commercial, corporate agro-businesses, such as Archer Daniels Midland, is greeted with a similar sense of frustration and a felt loss of something that had previously been more pure. Cf. Jedediah Purdy, The New Culture of Rural America, Am. Prospect, Dec. 20, 1999, at 26; George Scialabba, How the Other Half Votes, Nation, June 14, 2004, at 50; Joseph Weber, Will Agribusiness Plow Under the Family Farm?, Bus. Wk., Oct. 23, 2000, at 50.
n387. See Richard Gabriel, To Serve with Honor: A Treatise on Military Ethics and the Way of the Soldier 58 (1982) (noting that "the military's loss of some of its traditional values and their replacement with the values of the economic marketplace can lead to the abandonment of ethical precepts ... to the point that combat effectiveness itself is affected."); Sapone, supra note 50, at 5-7 (describing the inalienability and non-commodification of military power as exercised by the State and by actors serving the State); see also W.E.B. DuBois, The Crisis Writings 259 (1972) (describing the preeminent obligation of blacks to serve in World War I even though many were not afforded the equal rights of American citizenship).
n388. Pape & Meyer, supra note 2 (quoting Col. Thomas Dempsey); see also Singer, supra note 20, at 204 ("Armed forces' professionalism must not be associated with or compromised by commercial enterprise. To do so potentially endangers the fabric of community loyalty."); Sapone, supra note 50, at 6-7 (comparing the military's extensive connections to the national community against those of the private industry).
n389. See, e.g., Dirk Johnson & Andrew Murr, A Heroic Life, Newsweek, May 3, 2004, at 26 (reporting on the heroism of slain soldier Pat Tillman); Bill Pennington, Ex-N.F.L. Player Is Killed in Combat, N.Y. Times, Apr. 24, 2004, at D1 (same); Gary Smith, Code of Honor, Sports Illustrated, May 3, 2004, at 40 (same); Mike Wise & Josh White, Ex-N.F.L. Player Tillman Killed in Combat: Army Ranger Turned Down Millions To Serve His Country in Afghanistan, Wash. Post, Apr. 24, 2004, at A1.
n390. See Singer, supra note 20, at 226 (noting that with the increase in a private market for military services, perceptions about power belonging to the rich - rather than righteous - will multiply); Mourning, supra note 346; Chaffin, supra note 109 (acknowledging the possibility that private soldiers will perform certain acts that would not be asked of soldiers); Grant, supra note 328, at 106 (opining that when retired soldiers sell their military skills in the marketplace, the entire profession loses the high moral ground).
n391. See Addicott & Hudson, supra note 245, at 154 (highlighting the proud traditions of military service and military restraint that characterizes the U.S. Armed Forces and noting that the "military proficiency and ethical conduct in combat have ... [earned American soldiers a] reputation for both battlefield excellence and strict adherence to the laws regulating warfare"); McCaffrey, supra note 318, at 233-34 (describing honorable values of American soldiers to protect and promote human rights); Sheppard, supra note 334, at 777-78 (characterizing military traditions in America dating back to the Union Army as fighting to uphold and preserve dignity). But see Singer, supra note 20, at 204 (suggesting that the traditional ethos of the military as an honorable calling rather than just a job may be waning in the United States as soldiers increasingly view the military as a stepping stone for private sector opportunities).
n392. See, e.g., Rosky, supra note 6, at 969 ("Sometimes, private purposes exist within a larger institutional framework of public purposes and public responsibility ... . Our ... soldiers are not drafted, and they do not work for free. They are a volunteer corps that applies to work and gets paid for it. Presumably, these payments introduce some private purposes into our public ... armies. [But, a]s a society, however, we dismiss these [self-interested] purposes as culturally irrelevant."). But see supra note 385.
n393. See Grant, supra note 328, at 91 ("Ultimately, the privatization of US military services under direct foreign contract corrupts our military both in the eyes of society and from within the ranks.").
n394. See Singer, supra note 20, at 205 ("Those in service also fear that the military pension system might be called into question; profit is being incurred from the very same service for which the public is paying retired personnel back.").
n395. Already, even before the advent of military privatization, economic pressures to leave the military for the private sector were strong. The existence of lucrative contractor assignments may encourage qualified, dedicated soldiers to opt for life in the private military sector. If the best soldiers can make up to $ 250,000 a year as contractors, then they have strong financial incentives to leave the military - taking with them their expertise, commitment to service, and years of training. See, e.g., Barstow et al., supra note 4 (describing the concern that the ranks of Special Forces will be drained by the lure of private contracts); James Glanz, Modern Mercenaries on the Iraqi Frontier, N.Y. Times, Apr. 4, 2004, at D5 (noting the comparative salary boost private military firms can offer members of the U.S. Armed Forces).
n396. We have seen this happen at other moments in time, when faith in the military was low, and thus America retreated from an interventionist posture. Cf. Dunlap, supra note 184, at 349-51 (describing deep disillusionment and anti-militarism in America in the wake of Vietnam); George C. Herring, America and Vietnam: The Unending War, Foreign Aff., Winter 1991, at 104 (emphasizing the "extent to which Vietnam continued to prey on the American psyche [for many] years after the fall of Saigon" and suggesting that only with the victory in the first Gulf War did the disillusionment that accompanied the morass of Vietnam begin to abate).
n397. Cf. Richard A. Posner, An Army of the Willing, New Republic, May 19, 2003, at 27 (highlighting the benefits of a market-based army system as opposed to one based on coercion and conscription).
n398. See supra notes 153-57.
n399. Tepperman, supra note 13, at 12; see also Ghafour, supra note 94 (noting growing concerns about how DynCorp employees' brash behavior in Kabul is damaging the Afghan people's perceptions of Americans, describing how these contractors drive their vehicles aggressively and randomly point their weapons at onlookers, and suggesting that "when American private contractors behave aggressively, it confirms the worst suspicions in the minds of some Afghans").
n400. Alan Cowell, Powell, on Trip to Mideast, Vows Justice on Iraq Abuse, N.Y. Times, May 16, 2004, at A18; Neil MacFarquhar, Arab Meeting Expected To Produce Mostly Criticism of U.S., N.Y. Times, May 22, 2004, at A3; see also Friedman, supra note 344 (recommending that President Bush convene a summit of world leaders at Camp David to apologize for what transpired in Abu Ghraib).
n401. See, e.g., Carlos H. Conde, Manila Starts Withdrawing Troops from Iraq; U.S. Criticizes Step, N.Y. Times, July 15, 2004, at A7; David E. Sanger, Blow to Bush: Ally Rejected, N.Y. Times, Mar. 15, 2004, at A1.
n402. See also Alan Cowell, Bush's Words Do Little To Ease Horror at Prison Deeds, N.Y. Times, May 7, 2004, at A12; Christine Hauser, Many Iraqis Are Skeptical of Bush TV Appeal, N.Y. Times, May 6, 2004, at A16; Neil MacFarquhar, Revulsion at Prison Abuse Provokes Scorn for the U.S., N.Y. Times, May 5, 2004, at A18.
n403. See supra notes 341-44.
n404. See supra notes 294-319.
n405. See Priest, supra note 47, at 44-47, 112-13 (describing military personnel during the Clinton administration serving, in addition to their conventional responsibilities, as diplomats, guides to improve civil societies, overseers of de-mining, disarmament, and humanitarian projects); see also Englin, supra note 332 (characterizing American military families stationed overseas as "front-line ambassadors of American values and culture," and arguing that moving American soldiers out of Western Europe will further strain relations with long-time allies because "there is no easy public-relations substitute for 100,000 Americans ... serving as ambassadors to and from their host countries"); Robert D. Kaplan, The Man Who Would Be Khan, Atl. Monthly, Mar. 1, 2004, at 55 (describing the role of a U.S. Army colonel in forging strong military and political ties with Mongolia). But see Smith, supra note 333 (quoting a former DynCorp employee as calling DynCorp "the worst diplomat our country could ever want overseas").
n406. See Singer, supra note 20, at 236; see also Dexter Filkins, A Prison Tour with Apologetic Generals, N.Y. Times, May 6, 2004, at A16 (describing the disillusionment and shame felt by members of the U.S. Armed Forces in the wake of the Abu Ghraib scandal); Smith, supra note 333 (noting DynCorp's bullying tactics in Kabul and suggesting that "these days ... belligerent men with sunglasses and guns are America's most visible civilian representatives in some parts of the world"); supra note 163 and accompanying text.
n407. See, e.g., Robert Kagan, America's Crisis of Legitimacy, Foreign Aff., Mar./Apr. 2004, at 65 (noting widespread European distrust and opposition to the war in Iraq and to American foreign policy in general); see also Priest, supra note 47, at 386 (describing the military objective to win the "hearts and minds" of the people of Iraq and Afghanistan).
n408. See, e.g., Editorial, The Anger of Arab Youth, N.Y. Times, Aug, 15, 2002, at A22; Thomas L. Friedman, Editorial, Under the Arab Street, N.Y. Times, Oct. 23, 2002 at A23 (describing the hostility against American and Western interests); Neil MacFarquhar, Arab Protestors Focus Ire on U.S., N.Y. Times, Apr. 6, 2002, at A1.
n409. See Singer, supra note 20, at 226-27 (noting that with the introduction of private firms, "politics are now directly and openly linked with economic interests ... which can lead to breakdown of respect for governmental authority, and also delegitimizes its right to rule").

Finally, should consideration be given to the interests of the foreign nationals, on whose turf these quasi-private operations take place? Intuitively speaking, we might think foreign countries and their citizens have no say over what the status of the troops is whom we airlift into a battlefield. But, in very important ways, they do (or should). The Westphalian nation-state is a, if not the, defining feature of international relations in the modern era of world history; underlying that system is an explicit understanding that nations and national armies, not bands of mercenaries, fight wars. This understanding is reaffirmed in the modern, Weberian notion of a state possessing a monopoly over the use of force and in the Geneva Convention's definitive statement regarding who can legitimately engage in combat. Moreover, it is a central feature of the United Nations Charter that only states can lawfully take up arms (and only then under limited circumstances). To indicate that adversaries have no formal say regarding the composition of the contingent that takes up arms against them is to disregard centuries of work trying to regulate and "civilize" the course and conduct of war. For the United States to employ private agents may be for it to reprise the role of the illegitimate colonial empires and business interests that retained coercive power over other sovereignties and thus served to de-legitimate the concept of a world (and family) of nations. See U.N. Charter art. 2, para. 4; U.N. Charter art. 2, para. 5; U.N. Charter art. 51; Sapone, supra note 50, at 4 n.22 (cataloguing the array of UN resolutions condemning the use of mercenaries generally and with respect to particular conflicts); id. at 36-41 (describing the UN resolutions more thoroughly); Schmitt, supra note 47, at 1086 (describing the centrality of legal international norms even during times of conflict and war); Adams, supra note 325, at 103; see also Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S 85; Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 609; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 U.N.T.S. 3; A.P.V. Rogers, Law on the Battlefield (1996) (describing ways in which national armies are instructed and expected to preserve human life and refrain from excessively destructive practices while waging war).
n410. F.H. Hinsley, Power and the Pursuit of Peace 225-37 (1963); Hans Kelsen, Collective Security Under International Law (2001); Charles A. Kupchan, The Case for Collective Security, in Collective Security Beyond the Cold War 41 (George W. Downs ed., 1994); Fowler & Fryrear, supra note 66, at 305; Gene M. Lyons, A New Collective Security: The United Nations and International Peace, 17 Wash. Q. 173 (1994); see generally Inis L. Claude, Jr., Power and International Relations 106-07 (1962).
n411. See, e.g., Kagan, supra note 407, at 74 ("During the four decades of the Cold War, the Security Council was paralyzed by the implacable hostility between its two strongest veto-wielding members.").
n412. Inis L. Claude, Jr., The Gulf War and Prospects for World Order by Collective Security, in The Persian Gulf Crisis: Power in the Post Cold War World 23, 24 (Robert F. Helms II & Robert J. Dorff eds., 1993) ("The ending of the Cold War, creating the expectation of a United Nations Security Council no longer paralyzed by conflict between the superpowers, has inspired the suggestion that the Council can now become what it was presumably intended to be, an agency for the collective enforcement of the ban on aggression."); Thomas M. Franck, What Happens Now? The United Nations After Iraq, 97 Am. J. Int'l L. 607, 608 (2003) ("For one dazzling moment in the 1990s, the end of the Cold War seemed to revive faith in the [U.N.] Charter system, almost giving it a rebirth.").
n413. See, e.g., Lawrence Freedman & Efraim Karsh, The Gulf Conflict, 1990-91: Diplomacy and War in the New World Order (1993); Transcript of President's State of the Union Message to Nation, N.Y. Times, Jan. 30, 1991, at A12 ("Tonight we lead the world in facing down a threat to decency and humanity... . It is a big idea - a new world order where diverse nations are drawn together in common cause to achieve the universal aspirations of mankind: peace and security, freedom and the rule of law.").
n414. See Michael Barone, Taking the U.N. Seriously, U.S. News & World Rep., Sept. 23, 2002, at 43; Philip Gourevitch, The Optimist, New Yorker, Mar. 3, 2003, at 50 (describing the heightened importance of the UN in the aftermath of the Cold War).
n415. Todd Gitlin, America's Age of Empire: The Bush Doctrine, Mother Jones, Jan. 1, 2003, at 34; G. John Ikenberry, America's Imperial Ambition, Foreign Aff., Sept./Oct. 2002, at 44; John B. Judis, Two Steps Backward; Unilateralism Revisited, Am. Prospect, Aug. 12, 2002, at 10; Fareed Zakaria, The Trouble with Being the World's Only Superpower, New Yorker, Oct. 14, 2002, at 72; see also Kagan, supra note 407. For a discussion of efforts to circumvent the Security Council, see Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations To Use Force, Cease-Fires and the Iraqi Inspection Regime,
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