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



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93 Am. J. Int'l L. 124 (1999).
n416. See W. Michael Reisman, Kosovo's Antinomies, 93 Am. J. Int'l L. 860 (1999); Ruth Wedgwood, NATO's Campaign in Yugoslavia, 93 Am. J. Int'l L. 828 (1999); John R. Bolton, U.S. Foreign Policy Doesn't Require the Permission of the Security Council, Wkly. Standard, Oct. 4, 1999, at 13; Roger Cohen, Europe's New Policeman; NATO Shatters Old Limits in the Name of Preventing Evil, N.Y. Times, Oct. 18, 1998, at D3; Michael Hirsh, Washington's Self-Defeating Assault on the U.N., Foreign Aff., Nov./Dec. 1999, at 2; see also Jane E. Stromseth, Future Implications of the Iraq Conflict: Law and Force After Iraq: A Transitional Moment, 97 Am. J. Int'l L. 628, 632 (2003) (contrasting the legitimacy bestowed on the coalition-building efforts to liberate Kosovo with the utter lack of such approbation vis-a-vis the Iraq campaign in 2003).
n417. See Franck, supra note 412, at 617 (questioning the legitimacy and effectiveness of the Coalition of the Willing and characterizing it as including "a sizable contingent from Britain, a few hundred policemen from Poland, Romania, and Bulgaria (at least until their nations are integrated into the European Union), a few soldiers from Australia and Albania, and good wishes from Israel"); Clark, supra note 45; Ivo H. Daalder & James M. Lindsay, Bush's Flawed Revolution, Am. Prospect, Nov. 2003, at 43; Francis Fukuyama, Editorial, U.S. vs. Them: Opposition to American Policies Must Not Become the Chief Passion in Global Politics, Wash. Post, Sept. 11, 2002, at A17; Kristof, supra note 99; James Traub, The Next Resolution, N.Y. Times, Apr. 13, 2003, 6 (Magazine), at 50.
n418. See, e.g., Franck, supra note 412, at 617-19 (suggesting that the current American foreign policy's use of alternative sources of multilateral consent could effectively "disable the United Nations" and its endorsement of preemptive uses of force "stands the [U.N.] Charter on its head"); Roger Cohn, Editor's Note, Mother Jones, Jul./Aug. 2003, at 37 (noting that the United States's decision to go to war in Iraq without Security Council authorization signaled its disregard for the United Nations and dealt it a "stunning blow").
n419. See Kagan, supra note 407; see also Michael J. Glennon, Why the Security Council Failed, Foreign Aff., May/June 2003, at 16-18, 23-24 (noting that the military intervention in Iraq undermined the U.N. Charter and signaled the end of "the grand attempt to subject the use of force to the rule of law").
n420. In addition to the political rivalries among Security Council members that serve to stymie U.N. authorization, there is a general unwillingness to support intervention, out of fear (especially among non-Western nations) that such precedents will ultimately lead to further scrutiny of their own domestic situations. See Kagan, supra note 407. Other concerns that dampen enthusiasm for intervention include financial costs, danger to soldiers, and insufficient strategic interests. See, e.g., Milliard, supra note 23, at 16; Michael Scharf & Valerie Epps, The International Trial of the Century? A "Cross-Fire" Exchange on the First Case Before the Yugoslavian War Crimes Tribunal, 29 Cornell Int'l L.J. 635 (1996).
n421. See Singer, supra note 20, at 213 (noting the scandal involving Britain's use of Sandline in Sierra Leone was viewed by critics as a way to circumvent the UN arms embargo - as well as British troop limitations - and ultimately almost forced the resignation of then-Foreign Minister Cook).
n422. See Milliard, supra note 23, at 18-19; Des Forges, supra note 119, at 142 (noting that a small contingent of peacekeepers and a team otherwise assigned to evacuate westerners in Rwanda "could have deterred the killings had they acted promptly); Michael Hirsh, Calling All Regio-Cops: Peacekeeping's Hybrid Future, Foreign Aff., Nov./Dec. 2000, at 2 (suggesting that much bloodshed could be stopped relatively easily if intervention happened quickly enough); Kaufmann, supra note 119, at 143 (suggesting that "of all the genocides since World War II, this would perhaps have been easiest to stop").
n423. See Michael J. Kelly, U.N. Security Council Permanent Membership: A New Proposal for a Twenty-First Century Council, 31 Seton Hall L. Rev. 319 (2000); Stromseth, supra note 416, at 641-42 (highlighting ways in which the United States's leadership could help improve Security Council governance); Richard N. Haass, What To Do with American Primacy, Foreign Aff., Sept./Oct. 1999, at 37 (emphasizing the importance of American efforts to persuade the Security Council to be a more effective institution in enforcing collective security norms); Dmitri V. Trenin, Editorial, If the U.N. Were Being Created Today: Veto the Veto, N.Y. Times, Mar. 15, 2003, at B9 (suggesting that the dramatic types of reform the U.N. Security Council needs today must be spearheaded by the United States).
n424. This analysis is equally applicable in any multilateral context, such as in the Balkans. See supra notes 66-84 and accompanying text.
n425. See supra Part II.B.1.
n426. See, e.g., Singer, supra note 20; Howe, supra note 44; Gaul, supra note 53.
n427. See Singer, supra note 20, at 222-23 (noting that since neither the international marketplace nor home governments have effectively regulated private military firms, contractors have taken on clients "about whom the home state government or public had normative concerns"); Howe, supra note 44 (indicating that some private firms will accept offers from roguish clients, including neo-colonial groups in Africa); Singer, supra note 83, at 523 (describing how some private firms accept contracts with "dictatorships, rebel armies, terrorist groups, and drug cartels"); Gaul, supra note 53; Zarate, supra note 20, at 93-104 (characterizing non-American firms as more likely to engage in offensive enterprises and as also more likely to work for morally questionable client states).
n428. Singer, supra note 20, at 224; see Philip Winslow, Why Africa's Armies Open Arms to Elite Fighters From S. Africa, Christian Sci. Monitor, Oct. 19, 1995, at 7 (quoting South African Deputy Foreign Minister Pahad as saying "Today they're there to defend you, tomorrow those forces will be there to overthrow you").
n429. Sapone, supra note 50, at 22; Christo Johnson, Troops Foil Coup in Sierra Leone, Independent (London), Oct. 4, 1995, at 15.
n430. Singer, supra note 20, at 112-13; see id. at 115 (noting Sandline's contract to reinstate the government after Executive Outcomes left and a coup was staged).
n431. See Singer, supra note 20, at 225. In fairness, even the American-based MPRI has taken on as a client the military dictatorship of Equitorial Guinea. See id. at 132, 223.
n432. See David Leigh et al., Pentagon Link to Guinea Coup Plot, Guardian, Sept. 27, 2004, at 11; see also Michael Wines, An African Foul-Up, With an Intriguing Cast of Britons, N.Y. Times, Sept. 3, 2004, at A4 (noting that the coup was engineered by those who wanted to enhance their business prospects in the country).
n433. Id. at 170; Sapone, supra note 50, at 2-3 (noting private military firms' participation in Chechnya, Tajikistan, Azerbaijan, Georgia, Kashmir, Sierra Leone, and East Timor); Kevin Whitelaw, Have Gun, Will Prop Up Regime, U.S. News & World Rep., Jan. 20, 1997, at 47.
n434. See Singer, supra note 20, at 174-75 ("It was already difficult to access a rival's capabilities or force postures. Now with PMFs, the combination of an openly accessible military services market and the new heterogeneity of military actors makes this appraisal even more difficult. When externalized onto an ever-changing market, a rival's potential capabilities or force postures are highly variable and able to transform rapidly. Thus, seemingly predictable power balances and deterrence relationships are now made unstable."); Singer, supra note 83, at 522 (noting how private firms helped to win wars in Angola, Croatia, Ethiopia-Eritrea, and Sierra Leone).
n435. See, e.g., Singer supra note 20, at 52 (describing how all sides in the Angolan Civil War secured private military assistance); id. at 164-65 (noting that at times private firms have become so powerful that they can influence internal political decisions in the client's country); id. at 172 (positing how small, population-light countries can build up military strength overnight through contracting out); id. at 175 (predicting that the combination of heightened uncertainty regarding rival nations' forces and increased availability of military resources in the marketplace could spawn overnight arms races).
n436. Id. at 174 (noting that leasing a foreign army lowers the cost of war: "A new international market of private military services means that economic power is now more threatening."); Kurlantzick, supra note 20 (suggesting that "the fact that states could hire PMCs relatively cheaply to prosecute their battles made them less willing to come to the bargaining table and more willing to continue fighting"); see also Posner, supra note 397.
n437. See supra notes 22, 96-100, and 206 and accompanying text.
n438. I do not, however, take a strong position necessarily endorsing or rejecting any of these measures. I simply proffer them as a set of policies that might help address some of the concerns raised in this Article.
n439. See, e.g., Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, 109 Stat. 691 (codified at 2 U.S.C. 1602-1603 (2000)); see also Guttman, supra note 3, at 888 (noting that federal conflict-of-interest rules are more lax with regard to contractors than with federal employees).
n440. Moreover, the greater the degree to which privateers are incorporated into the legal architecture of congressional regulation and authorization, the less likely it is that such contractors could in any way be considered independent from the U.S. government. Hence, the status differential for purposes of exploiting legal gaps to circumvent collective security agreements would also be reduced.
n441. For strategic and political reasons, however, Congress would be unlikely to undo extant presidential deployments. See, e.g., Ely, supra note 193, at 52-53; Louis Fisher, Congressional Abdication: War and Spending Powers, 43 St. Louis U. L.J. 931, 1006 (1999); John O. McGinnis, Constitutional Review by the Executive in Foreign Affairs and War Powers: A Consequence of Rational Choice in the Separation of Powers, 56 L. & Contemp. Probs. 293, 301-06 (1993); Treanor, supra note 168, at 701. At best, and explaining away any constitutional challenges for the moment, Congress would probably have to wait for a conflict to abate and than legislate in its wake. See, e.g., Spiro, supra note 199, at 726 (noting that Congress can rarely criticize and legislate to limit the president during the course of military engagement, only afterward); see also Koh, supra note 186.
n442. See supra notes 309-18 and accompanying text.
n443. See supra note 309 and accompanying text.
n444. See Reid v. Covert, 354 U.S. 1, 35 (1957) ("[A] statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace."); see also Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960). These latter two cases hold that the UCMJ applies to contractors only in instances of congressionally declared wars. See Perlak, supra note 309, at 97-100. Hence, in Vietnam, contractors were not held subject to the Uniform Code even though the United States was in a de facto state of war. See Latney v. Ignatius, 416 F.2d 821 (D.C. Cir. 1969); United States v. Averette, 19 C.M.A. 363 (1970).
n445. Efforts to do so may run afoul of a contractor's constitutional rights not only on procedural grounds (soldiers are not entitled to a grand jury indictment, a jury trial, or an Article III judge), see Gibson, supra note 44, but also some substantive ones. To criminalize the breach of contract per se would pose an interesting challenge to the long-held anti-peonage jurisprudence of the Thirteenth Amendment. See, e.g., United States v. Reynolds, 235 U.S. 133 (1914); Bailey v. Alabama, 219 U.S. 219 (1911); Hodges v. United States, 203 U.S. 1, 20 (1906); Perlak, supra note 309, at 118-19; Schmidt, supra note 313 ("Because the UCMJ does not apply to contractor employees (except potentially in a declared war), and because the [Military Extraterritorial Jurisdiction] Act addresses only civilian criminal statutes, it appears there is no relationship that could result in "discipline' over a contractor. Clearly, the options that the government has to ensure proper performance by contractors do not include any actual ability to punish individual contractor employees.") (emphasis added).
n446. See, e.g., Grisham, 361 U.S. at 278; McElroy, 361 U.S. at 281; Averette, 19 C.M.A. at 363; Perlak, supra note 309, at 98. Note that in many situations it would simply be imprudent to declare war, and certainly not worth the status-reveling advantages.
n447. Freeman, supra note 3.
n448. See id.
n449. See supra notes 332-38 and accompanying text.
n450. But see Donahue, supra note 5, at 37-56; Beermann, supra note 57, at 1736; Freeman, supra note 3, at 1339. These scholars suggest that there is some argument to be made that, as Professor Freeman puts it, "Adherence to public law norms might be costly for private providers, and those costs might undermine the potential for efficiency gains to some extent." Id.
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