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



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In the military context, non-economic status differentials can emerge as all-important in (rather than incident to) decisions to privatize. Private actors qua private actors may be sought - not because they are situated in a more efficient market or even because they command lower market wages, but because legally, politically, and symbolically they are not soldiers. Military privatization can allow the government to achieve national security and even humanitarian ends that would be more difficult, if not impossible, to accomplish using American soldiers. n136 Perhaps, at [*1039] various times, a desire, however latent, to avoid instituting a draft, to lessen public awareness, to dilute casualty counts, to bypass congressional troop limitations, and/or to evade international arms embargoes, entice policymakers to outsource because private actors are not regulated, controlled, or even mourned to the same extent that public soldiers are. But, if a decision to outsource does reflect "tactical" aims to circumvent political and legal obstacles associated with the conventional deployment of regular, U.S. troops, an entire set of problems for constitutional principles and democratic virtues - independent of any actual, tangible misdeeds that privateers may perpetrate in a zone of conflict - must be anticipated. It is these structural problems, deeper than just accountability concerns, which command my attention. n137 Indeed, these structural problems are so great in the context of military privatization that even absent any express intent by the Executive to leverage or exploit status differentials between contractors and soldiers, many of the chief constitutional and democratic harms would still arise.

Economic privatization is, ostensibly speaking, ideologically agnostic. Its advocates may have particular agendas, but efficiency-driven privatization per se mainly creates an alternative process for carrying out government contracts that strive to replicate government provision - only at a fraction of the cost (and perhaps with less government red-tape). On the other hand, "tactical" privatization, which may seek to exploit status differentials, is predicated on substantive rather than administrative or bureaucratic reform. Privatization, in this latter case, could be used to achieve objectives materially different than those that could be - for a number of reasons - achieved within the public sector. For example, a conflict may prompt an outsourced response if it would otherwise be difficult for the president to secure congressional and/or international support to deploy members of the U.S. Armed Forces. In such scenarios, it is not the cheaper price tag, but rather the status of the private actors (as distinct from U.S. military personnel) vis-a-vis congressional oversight, [*1040] public attention, and international law that may motivate policy planners to hire contractors.

In this Section then, I focus on the structural challenges posed by forms of military privatization that leverage status differentials, purposefully or even inadvertently. This is not to say that there are not instances where "tactical" aims may influence outsourcing patterns in domestic policy contexts. n138 Nor is it the case that the lessons and insights we can glean from the already rich, nuanced, and comprehensive scholarship on economic privatization would not be immeasurably helpful here. I nevertheless leave much of that conventional, scholarly analysis to the side for now in order to explore some of the deeper concerns that are triggered when privatization can be undertaken for purposes of limiting political and legal oversight. Thus, for instance, I do not consider the potential economic gains and efficiencies associated with military privatization, though such an exploration would, no doubt, prove quite interesting.

Instead, I briefly discuss how the "optics" of privatization as well as how the legal and political differences between using private troops and American soldiers could create opportunities for national security policymaking that would not be possible were the Executive limited to deploying only members of the U.S. Armed Forces. This short discussion, in turn, helps lay a framework for examining in Parts III, IV, and V, how status differentials not only threaten effective service provisions, but also may disrupt the democratic and constitutional workings of the federal government.

1. Using Private Troops To Minimize Political and Legal Contests

As will be explored at length in the course of the discussions in subsequent parts of this Article, privatization expands the horizon of executive policymaking discretion in the context of military affairs. Using privateers, whose legal status differentiates them from regular, U.S. soldiers, could help enable the president to bypass congressional oversight and even international collective security arrangements. Indeed, outsourcing may be undertaken to exploit this legal gap between what is the official state policy (say, non-intervention, limited involvement, or limited troop deployment) and what military goals can actually be accomplished through private channels. If contractors operate within these interstices, the president can presumably satisfy national security aims [*1041] without expending the time and political capital to secure formal approval at home or internationally.

First, pursuant to the U.S. Constitution, customary practice, and statutory framework laws such as the War Powers Resolution, the president shares many warmaking powers with Congress. While retaining exclusive jurisdiction over command decisionmaking, the president must nevertheless seek, inter alia, authorization and funding from Congress to deploy U.S. troops into zones of hostility. But, many of Congress's powers over military affairs are keyed to its Article I authority over the Armed Forces per se. Congress can, for instance, regulate the use and number of servicemen and women abroad, curtail funding for operations, and withhold support for a military engagement. Hence, as it stands, the president must often seek congressional approval in some form or another.

If the Executive were, however, to deploy private troops in lieu of U.S. soldiers, it might be able to evade much of Congress's oversight jurisdiction - at least temporarily. Without having to seek authorization and funds from the national legislature, the president can more easily engage in unilateral policymaking and dispatch private contractors who are not part of the regular U.S. military. In so doing, objectives can perhaps be achieved more swiftly and with less political wrangling and opposition. This privatization agenda is discussed further in Part III.

Second, an additional - and this time constitutionally exogenous - check on presidential discretion comes by way of the United Nations Security Council. In the post-Cold War era, the Security Council has reemerged as a, if not the, legitimate source for the authorization of military intervention in the name of collective security. Without the endorsement of the Security Council, any one nation's decision to intervene in the affairs of another sovereign state is subject to criticism and charges of illegality and illegitimacy. But although the Security Council attempts to regulate the behavior of nation-states and their national militaries, it (like international law more generally) has comparatively less influence over the activities of private agents. n139

If a country were to utilize the services of private contractors, it could bypass a Security Council vote - or possibly evade an already passed resolution prohibiting intervention by member states. Thus, the use of private troops in lieu of the U.S. military may free the Executive from having to depend on the support of the Security Council in order to initiate [*1042] a foreign deployment. This privatization agenda is explored at greater length in Part V.

2. The Optics of Military Privatization

Beyond leveraging the legal status differentials between U.S. soldiers and private actors to evade oversight by Congress (and maybe even the U.N.), the Executive might further, or alternatively, resort to privateers precisely because they may have a different social or symbolic status in the American consciousness. Privateers do not, so it appears, occupy the same special place in the hearts and minds of the American public as do its citizen-soldiers. n140 By contrast, it is that special regard for soldiers, well-understood by military and political leaders alike, that often constrains the government from readily sending public troops into harm's way. n141

Conversely, it is doubtful also that privateers go overseas with the symbolic "baggage" that U.S. soldiers tend to carry - as exemplars (at least in the minds of many) of hegemony and coercion.

Hence in either or both scenarios, the use of private agents may prove more palatable (or at least more discreet) than sending in the Marines. Dispatching private contractors may not trouble and worry the American people as profoundly as if their boys and girls in uniform were sent into battle. And, likewise, dispatching private troops - who do not even wear the uniforms of the U.S. military and are not as likely to hoist an American flag in celebration on foreign soil n142 - may accomplish goals more readily and with less resistance than if U.S. soldiers were actually deployed.

Below I posit that differences between soldiers and contractors, based on (a) normative value judgments and traditional affinities for U.S. servicemen and women, and (b) sensitivities of foreign hosts, may lead policymakers to prefer private contractors in certain situations. The harms [*1043] associated with exploiting these sets of status differentials will be addressed more fully in Part IV.

a. Public Opposition Grounded in an Expectation of Zero-Casualties: A Focus on Soldiers' Deaths

Americans' general distaste for war is a significant factor circumscribing the government's ability to deploy and use force abroad. But that aversion is not necessarily grounded in pacifist or even isolationist sentiments; another significant factor is a low tolerance for casualties: the squeamishness associated with watching soldiers arrive home in body bags and with tallying the rising casualty counts in the morning newspapers. Indeed, though the United States has not necessarily been shy about military interventions in principle, it has often been hyper-vigilant about minimizing soldiers' casualties in any way possible. Billions of dollars expended for stealth fighters, cruise missiles, unmanned drones, and smart bombs aim to ensure that harm to American soldiers is kept to an absolute minimum. n143 In fact, key military decisions are at times made with the public's concerns in mind even at the expense of sound national security policymaking. For instance, in his efforts to galvanize domestic support for intervening in Kosovo, President Clinton publicly and repeatedly promised not to engage in a ground war. n144 His pledge not to put troops in harm's way may have secured the public support at home necessary to liberate Kosovo, but it also reduced the strategic discretion the Pentagon would have otherwise possessed were no such promise made. n145

An attitude of risk-aversion and faith in what is the now-popularized "zero-casualty," force-protection military paradigm n146 constrains the [*1044] effective exercise of military power - but not as much as if the overriding concern among Americans were purely pacifist in nature. This distinction between a zero-casualty and pacifist mentality may be less meaningful in the context of sending American troops into a conflict zone: either way, the public would be reticent to support a combat-related engagement. But, in the context of employing private troops who may not have the preternatural connection to the American people that U.S. soldiers enjoy, n147 this distinction might make all the difference in how a president conducts foreign policy.

Enter the contractor. Tim Spicer, founder of Sandline, a prominent British military firm, believes military contractors can "fill the gap" left in the wake of the debacle in Somalia more than a decade ago. n148 Recall that America's low tolerance for casualties, perhaps a by-product of Vietnam, n149 was tragically tested in Somalia, where the sight of American soldiers dragged through the streets of Mogadishu was televised stateside for all to see. n150 Indeed, "the live footage on CNN of United States troops being killed in Somalia has had staggering effects on the willingness of governments to commit to foreign conflicts." n151

Private firms can undertake dangerous missions on behalf of the U.S. government without the attention, media coverage, or official sponsorship; [*1045] if things go wrong, the line of blame to the government is more attenuated and the casualties would not be patriotic American soldiers serving under (and being carried home under) the American flag, but rather defense contractors whose deaths are not officially reported. n152 As former U.S. Ambassador to Colombia Myles Frechetter noted: "If the narcotraffickers shot American soldiers down, you could see the headlines: "U.S. Troops Killed in Colombia.'" But when three DynCorp employees were shot down during an anti-drug mission in Peru, their deaths "merited exactly 113 words in the New York Times." n153 And, as Doug Brooks, a private military industry spokesperson explains, if an American soldier is killed overseas, it is front-page news. If he is not a soldier, and instead is a private contractor who "is shot wearing blue jeans, it's page fifty-three of their hometown newspaper." n154 Journalist Kevin Myers has come to a similar conclusion: If a private military contractor is "killed in action, the tabloid sob-industry cannot then move into tearful action, wondering about our brave boys perishing on a foreign field." n155 In the hearts and minds of the people, private actors "are excluded from such hand-wringing." n156 Indeed, although ABC's Nightline recently devoted an entire episode to a solemn reading of the names of the slain American servicemen and women in Iraq, it is highly doubtful that it or a similar show would allot comparable time to fallen contractors. n157

Thus in conflict zones, or areas of potential conflict, such as Colombia, Afghanistan, Iraq, and Rwanda, the use of private agents rather than [*1046] American soldiers does not lower the likelihood of death. But their acting in lieu of soldiers does perhaps lower the likelihood of the unacceptable imagery of American soldiers coming off cargo planes in bodybags draped with the flag. n158 It is possible that, at least in terms of small-scale operations (such as in Rwanda or Sudan), this gives the president greater discretion to place troops on the ground for humanitarian peacekeeping or even hostage-rescue assignments that the public would deem too remote an interest to justify jeopardizing American soldiers. n159 And, in high-profile interventions, such as in Iraq or Afghanistan, the use of contractors can lower the number of soldiers who have to be called into or kept in service, dilute the tally of official casualties, and lessen the need to cultivate a broader international coalition. The U.S. government may, in turn, exploit this gap in how contractors are valued vis-a-vis soldiers and place privateers in harm's way at a lower political cost.

Perhaps these observations overstate the difference, especially in light of the Bush administration's ongoing War on Terror and the war in Iraq. After September 11, the force-protection theory of warmaking may seem more of a nave luxury than a sustainable national defense strategy. n160 Casualties to American troops struck down in the caves of Afghanistan or [*1047] the streets of Iraq may be considered acceptable in ways they might not have been in Kosovo or Colombia. And, in Iraq, as contractors become more commonplace on the battlefield and more closely associated with the American commitment there, the symbolic differences between them and soldiers may lose some currency. n161 Accordingly, to the extent the differences lose meaning, however, so does the policymakers' perceived flexibility to employ privateers as less politically costly stand-ins (and hence contractors may become less useful). n162

Nevertheless, the public's sense of the differences may endure - and may even become more acute in instances where national security interests are not implicated. In other words, the loss of military lives in a humanitarian intervention - conducted contemporaneously as "real" wars are being fought on the frontlines of American security interests - may become even less acceptable. But, as often is the case with trying to glean meaning from dynamic trends, this discussion is speculative, of course, and any statements proffered here would benefit from further empirical analysis and/or a longer period of time to gauge cultural changes brought about in the post-September 11 climate.

b. Lowering the American Profile Abroad

Moreover, at times U.S. expertise and strength may be warranted - and even solicited by foreign leaders - but the symbolism of inviting American troops may prove too problematic for the host country, and the decision to dispatch them may do more harm than good. One need only consider the level of hostility shown toward U.S. GIs in countries with complicated histories of an American military presence, such as Japan, Saudi Arabia, and the Philippines, n163 to appreciate that in some circumstances private [*1048] contractors not wearing uniforms and not waving American flags may be much more effective agents of foreign policy than would soldiers, whose presence often invites anti-American sentiments. n164

Contractors, even if they are all Americans, may not exhibit any telltale signs of nationality. Hence, they may be especially valuable in places where the willingness of foreign leaders to help the United States fight the War on Terror exists but is offset by strong domestic opposition to U.S. forces on the ground. After all, one of Osama bin Laden's principal reasons for threatening Saudi Arabia remains the Kingdom's willingness to host American military bases in the "Holy Land." n165 And, on the flip side, the deaths of American contractors overseas (as opposed to U.S. soldiers) may be less likely to lead to a public outcry at home, which then might require the United States to respond with even greater force in defending its interests.

III. Threatening the National Security Constitution

While the immediate benefits of cost-savings, economic efficiency, and greater political maneuverability provide strong incentives for policymakers to consider employing private contractors, a full accounting of the concomitant harms is also in order. In the parts that follow, I focus on structural harms and catalogue the depth and breadth of the potential dangers brought about when core governmental responsibility over military engagement is delegated to privateers. Indeed, whether explicitly seeking to evade political and legal constraints - or even inadvertently doing so in the course of trying to save money - the enhanced discretion associated with military privatization may: (1) subvert the constitutional imperatives of limited and democratic government, (2) diminish the effectiveness of the U.S. Armed Forces, and (3) undermine the already weak diplomatic and moral standing of the United States abroad.

[*1049] In this Part, I focus on how private contractors may enable the Executive to conduct military policy with relatively few constraints. To the extent that Congress's authority over warmaking is principally tied to its Article I powers over the U.S. Armed Forces, a president seeking more unilateral control might deploy private troops instead of U.S. soldiers. By bypassing congressional authority, the president violates the two chief constitutional imperatives: limited government - by circumventing Congress and limiting its ability to rein in the power of the president - and democratic government - by acting covertly without the national legislature's and, by extension, the People's consent. Problematically, even if the Executive had no such insidious aim - and was instead seeking primarily to maximize efficiency gains - simply and even inadvertently operating outside of the constitutional framework of shared military policymaking has the effect of limiting Congress's and, again, the People's formal and informal involvement in national security affairs, a limitation that, of course, is harmful to the proper functioning of government. For the most part, over time, Congress should be able to recover and reassert much of its authority by actively legislating to impede or, perhaps just counterbalance, the president's unilateral activity. Therefore, presidential discretion by way of outsourcing may not create an insurmountable constitutional crisis, but can, at the very least, create a critical imbalance that has yet to be satisfactorily anticipated.

And, in the subsequent two Parts, I discuss, first in Part IV, how military privatization damages the institutional integrity and effectiveness of the U.S. Armed Forces and, also, how it may threaten the normative standing of the American soldier as an embodiment of the patriot-citizen; and then in Part V, I characterize how military privatization, by undermining the legitimacy and vitality of collective security agreements, provides additional fodder for those already suspicious of American foreign policy.

Some of these harms identified in this Part as well as Parts IV and V, lend themselves to amelioration through more procedural transparency, through legislation mandating greater coordination with Congress, and through more candor with the American people. Other harms, however, are more intractable and, for constitutional and cultural reasons, not as easily remedied. A discussion of an agenda for reform - and the limitations of reform - will be reserved for this Article's conclusion.

[*1050]

A. Military Privatization's Threat to Limited and Democratic Governance

Although, we might think of the call to Philadelphia in the Summer of 1787 as a concerted effort to redistribute power away from the national legislature and toward a strong Executive, n166 the Founders nevertheless retained for Congress a sizable bulk of the Republic's warmaking powers. n167 Scholars have suggested that the motivation for the Convention lied principally in addressing the Articles of Confederation's defects in domestic governance (as well as in its misallocation of powers between the states and the Union), rather than any shortcomings in the nascent country's perceived abilities to take up arms in defense of its sovereignty. n168 Indeed, perhaps centuries of Old World tyranny and scores of bloody wars instigated by petulant European kings sensitized the Founders to the dangers of entrusting the sword and the decision to wield that sword in the same set of hands. n169

Vesting warmaking decisions - to authorize war, fund war, and supply and regulate the personnel involved in war - in Congress advanced, as I have intimated above, the two chief aims of the American experiment in constitutional democracy. The United States would be a limited government: its Commander-in-Chief would be constrained by sets of laws, deliberative processes, and by other, equally ambitious leaders in [*1051] coordinate branches. n170 And the United States would also be a great democracy: its decisions would reflect the will of the citizenry. n171 Hence, Congress as the most direct representatives of the People, would necessarily be involved in military policy, simultaneously promoting the virtues of limited government by checking the perceived natural inclinations of the strong Executive n172 and upholding the ideals of democracy by remaining the true servants of the People. Moreover, decisions by the president to wage war could not be undertaken without first benefiting from the deliberative insights of a legislative assembly and [*1052] without concomitantly securing the tacit blessings and consent of the citizenry. n173

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