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



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B. Transitioning to Combat-Related Privatization

But, of late, a radical new development in military privatization has quietly and slowly begun to take hold - adding new complexity to the military-industrial dyad. Confined for decades strictly to commercial functions, defense-oriented privatization over the past ten years has expanded in directions that would seemingly belie any stock assurances [*1019] that "inherently governmental" responsibilities would remain untouched and unaffected by the current privatization revolution. n40

1.

"They are not just running the soup kitchens." n41



Today, the U.S. military contracts out more than just catering and laundry responsibilities; and more than just billion dollar infrastructure or fighter-jet contracts. The federal government now also outsources a host of combat-related tasks and responsibilities in zones of conflict. For example, it is becoming increasingly commonplace to find private agents at the situs of conflict as communications specialists, intelligence operatives, target selectors, surveillance pilots, armed security and peacekeeping agents, hostage rescuers, interrogators, and weapons systems operators. Additionally, contractors serve as strategic planners and military advisors in the field, in the Pentagon, for foreign armies, and across the United States as ROTC instructors. n42 As such, their places in sensitive positions of authority and policy discretion and their pivotal roles in lethal engagements often set them apart from mere commercial contractors and, moreover, have the effect of blurring the distinction between commercial contractor and battlefield soldier, n43 in ways civilians staffing the mess halls or designing submarines never did.

In a word, then, we are witnessing the emergence of contemporary "mercenaries" carrying out the assignments that were previously and exclusively reserved for uniformed American soldiers entrusted with combat-related responsibilities and disciplined through the military chain-of-command. For what it is worth, today's military contractor operating in the United States has come a long way in shedding the baggage of and disavowing kinship to his predecessors, largely known as pirates and scoundrels who would offer their murderous service to the highest bidder. n44 But, however civilized, skilled, and professional he may be, he is [*1020] still not an American soldier, sworn to uphold the Constitution and governed by the Uniform Code of Military Justice; instead, he is a private agent, principally motivated by profit. n45

2. The Advent of Combat-Related Privatization

Combat-related military privatization arose in the 1990s at a time when considerable cutbacks in the size of the U.S. Armed Forces were underway, n46 when technological and geostrategic changes transformed [*1021] national security practices, n47 and when traditional types of covert operations, utilized in Southeast Asia in the 1970s and Latin America in the 1980s, had fallen into serious disfavor. n48

[*1022] Today's contractors, for their part, have taken considerable steps to upgrade the image of what has historically been an unsavory profession, thus helping to make the outsourcing of combat responsibilities more palatable. Indeed, contemporary American outfits are not dyed-in-the-wool bands of ruthless warriors, but rather they are incorporated businesses often headed by retired generals and colonels who have traded in their fatigues for pinstripes and left the barracks for the Beltway. Their employees, in turn, are not a rag-tag lot pulled from the ranks of society's denizens like the French Foreign Legion of yesteryear, n49 but are likewise often recruited from among the most decorated echelons of the American military establishment. n50

For example, one notable contractor, MPRI, a major participant in the Balkans during the war-ridden 1990s as well as in the Latin American drug wars, boasts of having "more generals per square foot than the Pentagon." n51 Indeed, MPRI's veritable "dream team" includes General Carl Vuono, former Army chief of staff during the invasion of Panama and the first Gulf War, Lt. General Harry Soyster, a onetime director of the Defense Intelligence Agency, n52 and General Crosbie E. Saint, the former commander of the U.S. Army in Europe. n53 MPRI advertises a breadth of competency that includes airborne operations, the provision of air support for ground troops and convoys, counterinsurgency work, force integration, tactical and strategic intelligence, reconnaissance, security assistance, and weapons control. n54 Another contractor, SAIC, a corporate giant with annual revenues topping $ 1 billion, boasts of a blue-ribbon directorate that [*1023] includes two former defense secretaries (William Perry and Melvin Laird) and two former CIA directors (John Deutch and Robert Gates). n55 Other notable - and influential - firms such as Blackwater USA, DynCorp, Ronco, CACI, and Titan, are also led by former high-ranking military officers. n56 The presence of distinguished leaders and reputable ex-soldiers impresses upon government decisionmakers that these businesses will be responsible, professional partners.

In addition to their all-star rosters, these firms have gained credibility and legitimacy because of their corporate ties. Many of the major contracting firms have close connections not only to the Pentagon but also to Wall Street, and are actually divisions or subsidiaries of such prominent businesses as Northrop-Grumman, Booz Allen Hamilton, the Carlyle Group, and Bechtel. Hence, corporate oversight and shareholder pressure may provide external sources of discipline and conformity. n57

[*1024]

3. A Survey of Recent Combat-Related Private Contracts

As mentioned above, in recent years, private military firms have protected the Karzai administration in still-unstable Afghanistan, secured American civil and military installations and served as interrogators in Iraq, bolstered and then counterbalanced the military capabilities of both the Bosnians and Croats in the Balkans, engaged in surveillance, reconnaissance, and coca-crop destroying as well as in counter-insurgency missions in Latin America, staffed security details for American officials in, among other areas, the Middle East, and attempted to bring some stability to war-ravaged Rwanda. This policy of federal contracting with private forces to serve in an array of critical zones of conflict to support American national security and foreign policy interests involves the delegation of not simply commercial responsibilities and accordingly represents a startling departure from previous partnerships with the private sector. In an effort to provide more specific details, I discuss six case studies.

a. Latin America

The United States's lukewarm commitment to fighting the War on Drugs at its sources has set the stage for the introduction of military contractors. With stringent limitations imposed by Congress regarding the number of U.S. Armed Forces personnel and the scope of their activities in Colombia, n58 and therefore only a relatively modest contingent of U.S. [*1025] troops and officials present on the ground, the Clinton administration turned to contractors, awarding them over $ 1.2 billion in contract work to slow down the production and exportation of narcotics. n59 In this capacity, private agents, notably from DynCorp and MPRI, have helped train local enforcement agents in counter narcotics work; but they have been more than just advisors: these contractors have flown sensitive reconnaissance missions, patrolled the skies to turn back (under the threat of force) smugglers, and piloted crop-dusters to destroy coca fields. n60 Their efforts have not gone unchallenged and, as a result, military contractors have at times been drawn into firefights with narco-traffickers and even leftist rebels, n61 some of whom had no direct connection to the drug trade. n62

In the course of their dangerous work, a number of American contractors have been killed; n63 these casualties have largely escaped public notice, media attention, and congressional scrutiny. n64 Indeed, relatively little is known about the extent of America's involvement in Colombia, let alone details regarding the delegation of specific activities to private firms. And, although the GAO rated DynCorp's performance in Latin America as [*1026] "unsatisfactory" over several years, the State Department repeatedly renewed the firm's contract. n65

b. The Balkans

In the Balkans during the mid-1990s, the bloody contests between and among Serbs, Croats, and Bosnian Muslims produced unspeakable carnage and threatened to destabilize the entire region. The Clinton administration, hamstrung by U.N. arms embargos, n66 hesitant allies, n67 wary adversaries n68 - not to mention internal White House indecision and congressional opposition n69 and, also, its desire to retain the appearance of an honest, neutral broker in the region n70 - was militarily limited in its ability to help quell the violence. Nevertheless, the Administration actively wanted to resolve the conflicts and chose, in part, to augment the relative military strength and self-sufficiency of the Croats and, later, the Bosnian Muslims to counter Serb aggression. n71

Unable, for the reasons mentioned above, to provide direct assistance through much of the years of fighting (but also unwilling to remain fully on the sidelines), the United States turned to private solutions. First, it [*1027] sought to bolster the fledgling Croatian state and arranged for the American firm, MPRI, to provide strategic and tactical military training as well as instruction in modern weaponry. n72 In working "under the guise of a private commercial enterprise, MPRI could achieve what would otherwise be impermissible military objectives." n73 Since directly supplying training and materiel to the Croats would have violated the U.N. arms embargo, and perhaps prompted Russia, in turn, to fortify its traditional ally, the Serbs, n74 the United States's use of MPRI effectively permitted it to remain neutral yet still pursue its unilateral humanitarian and geostrategic interests in the region. n75

Then, later, to entice the Bosnian Muslims to accept the Dayton Peace Accords, the need arose to strengthen their position, too, vis-a-vis the Serbs. n76 Again, the United States - intent on remaining ostensibly neutral - played matchmaker and, interestingly, recommended MPRI's services. n77 As a matter of fact, the Bosnians ultimately conditioned their [*1028] signing of the Dayton Accords on the State Department's promise to secure for them "the same guys who helped the Croatians." n78 So, while the United States committed thousands of troops to the region as neutral peacekeepers (to enforce the Dayton agreement), it also helped the Bosnian Muslims acquire additional support: n79 Privatized intervention thus allowed Washington to have its cake and eat it too.

In both Croatia and Bosnia, the training allegedly exceeded what one might expect a purely advisory engagement to entail. In fact, some reports of the contractors' involvement invited comparisons to what had transpired in the early years of America's "advisory" involvement in Vietnam. n80 The training in the Balkans included practical instruction such as strategic planning and targeting enemy locations, skills that were soon utilized in actual offensives. In one particularly bloody campaign, in which the Croatian leaders in command were ultimately charged with international war crimes for their brutality, n81 it has been alleged that MPRI was intimately involved in all stages of planning. n82

[*1029] Fortunately, while the participation of such advisors did not lead to an escalation of America's entanglement, as was the case in Vietnam, the story of private soldiers in the Balkans nevertheless gets worse. DynCorp, the same company employed to protect President Karzai, the same company that received unfavorable performance ratings in Latin America, and the same company that is now spearheading a good deal of security-oriented contracting work in Iraq, was (along with MPRI) also providing security services in Bosnia. While there, DynCorp personnel were accused, by colleagues and by the British government, of operating a full-fledged sex-slave operation involving young female war refugees. n83 Given the vagaries of the contractors' legal status and the jurisdictional limitations of American criminal law, n84 there was little the United States could do, that is, short of refusing to contract for DynCorp's services in the future. As explained above and below, however, the United States has not even taken that modest step. n85

c. Afghanistan

As referenced in the Introduction, in the Fall of 2002, the United States withdrew its elite Special Forces team assigned to protect President Karzai and, in its stead, contracted (yet again) with DynCorp to provide security. n86 Ensuring the stability and safety of the pro-Western Karzai regime, I need not add, is widely considered absolutely critical not only to rebuilding a free Afghanistan, but also to waging a successful war on global terrorism. n87 Nevertheless, though the decision to privatize came at a [*1030] time when Kabul remained incredibly unstable and threats on the new president and his cabinet were tangible and ever-present, n88 Defense Secretary Rumsfeld insisted that privatization was a necessity: He simply could not spare the handful of troops any longer. n89

This justification may not seem totally satisfying. The military detail originally assigned to Karzai numbered approximately forty Special Forces soldiers. To put that number in perspective, conservative estimates suggest that, at the time, the total number of active U.S. Special Forces personnel was between 40,000 and 50,000 strong. n90 And, moreover, there were tens of thousands of additional regular American soldiers stationed throughout Afghanistan carrying out all sorts of duties, from protecting the construction workers building roads to rooting out Taliban and al-Qaeda operatives in the caves along the Pakistani border. n91 Finally, as mentioned above, DynCorp has received abysmal performance evaluations ranging from poor service in Latin America to horrible human rights violations in Bosnia. More recent reports, from Fall 2004, have described DynCorp employees as alienating and intimidating locals in Kabul. n92 Nevertheless, despite the obvious significance and importance of protecting Karzai and [*1031] the apparent option of diverting a handful of regular U.S. soldiers to relieve the outgoing Special Forces team, the Bush administration preferred this private alternative.

As an additional note regarding contractors in Afghanistan, it has also recently come to light that private contractors working as interrogators in American military prisons in Afghanistan have been deemed responsible for brutal beatings (and even deaths) of al-Qaeda and Taliban inmates. n93 There is even evidence of Americans running "private" detention centers, possibly - but not definitively - in some loose affiliation with the CIA, purportedly to acquire information regarding terrorism. n94

d. Iraq


With hundreds of thousands of contractors involved in the liberation and occupation in Iraq, in jobs ranging from cooking and construction to armed security and intelligence, no combat venue has witnessed a greater influx of American private agents. Among them, many perform traditional commercial services. But a sizeable number, estimated between 20,000-30,000 contractors, carry out many of the core security functions typically understood to be inherently governmental - and inherently soldierly. n95 The difficulties of the occupation, n96 coupled with the relative shortages of U.S. troops, n97 an unwillingness to contemplate a military draft, n98 and only [*1032] minimal assistance from foreign allies n99 have made contractors close to indispensable. n100 Along the way, of course, many contractors have been killed. Casualties among contractors, to date, are not insubstantial, but of course they are not as high as the number of reported casualties among members of the U.S. military. n101 Yet comparatively speaking, rarely are those contractor-casualty numbers tallied with such care, publicity, and despondency as soldier-casualties are. n102

In the interests of providing some descriptions of the type of private military-security work undertaken in Iraq, I offer three representative illustrations.

First, both the Coalition Provisional Authority ("CPA") and the U.S. government have contracted with private military firms to provide security for key American and CPA positions, important Iraqi locations (such as banks, museums, and oil fields) as well as for American and CPA officials, including Ambassadors Paul Bremer and John Negroponte. n103 These contractors often carry automatic weaponry and, at times, have been provoked into exchanging fire with insurgents. For example, in early April 2004, Shiite militia forces attacked the CPA's headquarters in Najaf. Eight employees of Blackwater, unaided by members of the U.S. military - or by any other national army participating in the liberation and occupation - had to fend off the siege until they were ultimately supported by reinforcements. The cavalry, so to speak, came by way of a helicopter crew, comprised of additional Blackwater agents, not American military [*1033] personnel. n104 Similar battles, waged principally by armed contractors (with more or less success), have been fought in such places as Mosul, Kut, and Fallujah since the occupation began. n105

Second, private contractors have assumed now infamous roles as intelligence agents, translators, and supervisors in Iraq's most notorious prison, Abu Ghraib. In the weeks following formal investigations by General Taguba, n106 General Fay, n107 and former Defense Secretary Schlesinger, n108 it became apparent that employees of Titan and CACI, who devised interrogation techniques and supervised the military police, were central participants in the horrific prisoner-abuse scandal. n109

Third, contractors working for DynCorp helped stage and raid Ahmed Chalabi's personal compound as well as his offices at the Iraqi National Congress in Baghdad. This raid - which occurred soon after the Pentagon suspected that Chalabi had passed along U.S. national security secrets to Iran - is indicative of the fact that military contractors in Iraq have [*1034] undertaken offensive missions. n110 Within the industry, which vociferously contends that it only accepts "defensive" assignments, this example signals a major evolution in contractor responsibilities and protocols. n111

With extreme stress on the active U.S. Armed Forces, n112 the withdrawal of troops by Coalition partners, n113 a lack of faith in Iraqi security teams, n114 and no end in sight to the insurgents' hostilities, one would have to assume that the demand for (and utility of) military contractors, in spite of the notoriety they received at Abu Ghraib, will only increase. n115

e. Rwanda

Another interesting but not widely reported case of military privatization involved the United States supporting the very limited use of private agents in Rwanda. In the midst of that horribly brutal genocide campaign, n116 an extremely small (and admittedly insignificant) group of private agents under the employ of the Ronco firm were dispatched to protect some villages, to provide some humanitarian relief, and to offer training to the fledgling Rwandan Patriotic Army. n117 Contrasting the magnitude of the travesties against the modest deployment of private agents, it is safe to conclude that Ronco did not make much of a dent in stopping intertribal violence. n118 It is even safer to say, that the United [*1035] States, like most other nations, did almost nothing else to stop the genocidal massacre. n119 Indeed, General Dallaire, a Canadian commander of U.N. peacekeepers in Rwanda who condemned his own leadership as well as that of the entire Western world, said:


I haven't even started my real mourning of the apathy and the absolute detachment of the international community, and particularly the Western world, from the plight of Rwandans. Because fundamentally, to be very candid and soldierly, who the hell cared about Rwanda? ... Who is grieving for Rwanda and really living it and living with the consequences? n120

Nevertheless, despite its extremely limited scope and even more limited success, the Rwanda-Ronco project provides a powerful if incomplete model of possibilities. Irrespective of any U.N. hesitancy, n121 it is doubtful that the American public would have countenanced U.S. servicemen and women being sent to Central Africa to stop internecine tribal violence - especially on the heels of the recent debacle in Somalia. n122 On the other [*1036] hand, the public might be more comfortable with - or less aware of - dispatching contractors, who specifically agreed to sign up for such a dangerous mission, than with sending over regular U.S. soldiers whose defense of American sovereignty and interests does not (as the public might believe) legitimately extend to humanitarian police actions. n123 Dangerous humanitarian work such as what may be warranted today in the Darfur region of Sudan n124 may, accordingly, prove to be a new growth industry of assignments for contractors who consent to enter dangerous situations well outside of the scope of what is conventionally understood as core American national security interests. n125

f. Gaza Strip

A final, recent illustration of military privatization on a very small scale involved the terrorist attacks on U.S. consular attaches in Gaza. n126 In October 2003, a caravan of U.S. diplomats was shepherded through a virtually lawless area of Palestinian-controlled Gaza by DynCorp security forces, not State Department Diplomatic Service agents or U.S. Marines, who otherwise often guard embassies and overseas diplomats. n127 The [*1037] killing of three American contractors on the security detail did make the news for a day or so, n128 but it did not become a serious media or diplomatic story, and little was ultimately made of the attack in terms of creating an impetus for a counter-strike, or even a rethinking of U.S. Middle East policy. Perhaps, for better or worse, if it were American soldiers killed, a different response would have been forthcoming. n129

C. Conceptualizing Tactical Privatization

Without having looked at these specific case studies, one might readily assume that economic efficiency, the sine qua non of privatization, explains the evolution and expansion of military outsourcing. n130 But these examples, which paint a vivid though still inchoate and fragmentary picture of military privatization, actually suggest that there might be alternative (or at least additional) reasons why policymakers employ contractors. Examining the six examples above, we begin to realize that not only must we grapple with the implications of the dynamic transformations from outsourcing strictly commercial functions to ones involving the exercise of considerable discretion of the sort normally considered "inherently governmental;" we must also come to terms with the possibility that conventional, economic justifications do not explain the full breadth of normative reasons for soliciting private soldiers.

Traditionally, the lens of privatization scholarship has focused on economic efficiency, how competitive market forces and profit incentives can inject cost-savings and quality-enhancing measures into the provision of government services and functions. n131 Scholars have also examined ways in which contracting out may generate additional cost-savings benefits. For example, contractors are not subject to the costly and time-consuming notice-and-comment requirements of the Administrative Procedure Act or to the disclosure mandates of the Freedom of [*1038] Information Act. n132 Nor are they necessarily deemed "state actors" for purposes of Bivens or 42 U.S.C. 1983 liability. n133 Finally, employees of contracting firms are less likely to have union protection, and thus they can be made more responsive to market incentives (and more easily fired) than can civil servants. n134 Accordingly, the lower costs associated with contracting out are thus a function not only of competition and innovative business planning, but also of public-private status differentials. Even though they provide cost-savings too, these incidents of privatization, which permit contractors to bypass channels of accountability and to use more "casualized" labor, are, especially since the government is outsourcing increasingly sensitive functions, a growing source of concern. n135

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