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



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Military privatization threatens this framework of coordinate decisionmaking. The potential to outsource combat roles necessarily carries with it opportunities for the Executive to wield powers unimaginable were it limited to the use of regular, U.S. troops. By shifting responsibilities away from America's armed forces and delegating them to private contractors, the president can circumvent constitutional obligations to share warmaking authority with Congress. Privatization, therefore, may destabilize the delicate balance of powersharing built into what Dean Harold Koh calls the National Security Constitution, n174 by weakening a critical check on presidential power - a failure of constitutional governance - and also by engendering a level of distrust and sense of disenfranchisement among the population writ large - a failure of [*1053] democratic legitimacy. In the process, the People lose effective control over the helm of national security policy; and, institutionally speaking, once lost, such control will take time and considerable effort for Congress to regain.

B. The Fallacy of Imperial Warmaking and the Reality of Coordinate Powersharing

Were Congress unquestionably subordinated by an Executive authorized to assert exclusive powers to engage troops in combat unilaterally, then any separation-of-powers concern stemming from military privatization would fall to the wayside: Regarding the deployment of U.S. soldiers in zones of hostility, without any obligation to consult with Congress, let alone seek its approval, it would make no difference at least from this perspective if the Executive outsourced military responsibilities to private contractors. Although other constitutional and prudential harms would still ensue, the structure of powersharing between the elected branches would not be destabilized as a result of privatization. But despite actions and rhetoric suggesting that the Executive possesses unrivaled warmaking authority, the Constitution does not grant the president those exclusive powers, n175 and hence in order to grasp the very real threat privatization poses to the equitable and prudent allocation of war powers, we must appreciate Congress's important role in military affairs.

The exact contours of congressional-presidential powersharing need not be explored here; nor need we debate which branch, if either, has a preponderant say in decisions to commit troops. Those critically important questions are beyond this inquiry's ken. The more modest aim is simply to establish the existence and persistence of a strong congressional role in military affairs both as a vital check on the Executive and as a necessary conduit to ensure the continued informed consent of the American people. In what follows directly below, I describe the principal ways in which Congress typically plays a prominent role in shaping military policy and, concomitantly, in constraining presidential unilateralism. Then, in Section C, I will discuss how privatization allows the Executive greater leave to [*1054] bypass congressional oversight and authorization in those key domains. I do note at the outset, however, that congressional authority over the affairs of the U.S. Armed Forces is not perfect; nor is Congress entirely unable to oversee the activities of military contractors. Accordingly, though I do want to highlight the important differences between Congress's influence over the Armed Forces and its influence over military contractors (both in theory and in practice), I recognize that at times these differences are ones of degree, rather than of kind.

Congress tends to exercise its authority over military policy along three key axes: its power to regulate military personnel, to appropriate funds to the military, and to authorize the deployment of U.S. combat troops in conflict zones. First, through its authority to regulate military personnel, Congress can constrain presidential warmaking by limiting the size of the U.S. military, n176 by imposing restrictions and regulations on how and where soldiers can be deployed, n177 and by structuring the chains of command to limit an Executive's ability to politicize the military leadership. n178

Indeed, by possessing power over the conscription of American civilians n179 and by regulating the standards of reserve activations, n180 Congress can potentially limit the size of a conflict and its relative [*1055] duration. Without the prospects of an unlimited, fresh supply of troops as replacements and reinforcements, the president may feel constrained in initiating and continuing unilateral engagements. n181 Also, Congress can impose rules regarding the internal governance of the military, set terms for the conduct of war, and establish restrictive guidelines for engagement. n182 In the absence of this set of Article I powers, the president - as Commander-in-Chief - presumably would possess the exclusive authority to determine the acceptable contours of soldierly conduct. n183 And finally, still within this first set of powers, Congress can limit the politicization of the military by legislating hierarchical promotional guidelines n184 and by organizing units around civilian and [*1056] military leaders whose positions require Senate confirmation pursuant to the Appointments Clause. n185 In all, this first category of checks constrains the exercise of unbridled presidential warmaking and adds layers of transparency vis-a-vis fixed rules of military conduct and decisionmaking that ensure greater public awareness of military policymaking.

Second, another critically effective axis-of-constraints check on executive-driven military policy is Congress's power of the purse, perhaps its ultimate trump card. n186 Appropriations decisions, which belong to Congress and within the context of U.S. military spending must be constitutionally revisited at least every two years, n187 are often "conceived of as lump-sum grants with "strings' attached ... binding the operating arm of government." n188 This power was notably employed in the Vietnam era, when Congress cut off all funds for use in operations in Cambodia; n189 then, a decade later, Congress again tightened the purse strings to limit the [*1057] president's efforts in Nicaragua; n190 and, in the present, post-Cold War era, Congress has used its appropriations power with some regularity to limit presidential power and narrow the scope of military engagements in Haiti, Somalia, the Balkans, and Rwanda. n191 As will be discussed below, for a number of reasons it is much more administratively difficult to regulate the funding that ultimately flows to privateers, because contractors are often paid through more discreet, even convoluted bureaucratic channels (if they are even paid through the U.S. Treasury at all). Of course, it could be the case that Congress, in making its appropriations, begins with the foundational assumption that executive agencies - even ones not directly involved in national security n192 - employ military contractors. But while this may very well become a commonplace assumption among future congresses, it is doubtful that previous and even the contemporary congresses, which appropriated war spending in Afghanistan and Iraq, contemplated the scope (and complexities) of private military funding.

Third, there is Congress's most direct (but also most contested) power: to authorize military deployments even short of a formal declaration of war. n193 Today, pursuant to the War Powers Resolution, n194 a statutory [*1058] [*1059] rule n195 ensuring that the collective judgment of both elected branches will apply to military intervention in a manner consistent with "the intent of the framers," n196 the president must consult with Congress and ultimately seek its approval to deploy and retain U.S. military forces in zones of combat. n197 Despite opposition to this statutory framework and a refusal to concede that Congress has any role to play in military engagements short of formal war, n198 recent administrations have nevertheless consulted with [*1060] Congress - and sought formal authorization - before deploying troops for combat duty abroad. For example, both President George H.W. Bush in the Gulf War and President Clinton in the Balkans and Iraq aligned

themselves with, rather than against, the powerful argument that Congress should take responsibility [in war decisions]. Each President submitted his defining military action to Congress along with a request for congressional approval in advance. Thus ... highly publicized congressional debates characterize the present arena for resolving questions about putting the military in harm's way. n199

[*1061] And notwithstanding otherwise embracing the pretensions of vast executive prerogative, n200 President George W. Bush has followed his predecessors' deferential lead by seeking congressional votes of support and authorization before taking up arms in both Afghanistan and Iraq. n201

[*1062]

C. Bypassing Congress Through Privatization: An Attack on Constitutional, Limited Government

Privatization, accordingly, creates unprecedented opportunities for the Executive to circumvent Congress and act unilaterally in military affairs. By opting to employ private contractors - rather than members of the U.S. Armed Forces - the president can avoid triggering many of Congress's commonly exercised war powers, which are by-and-large specifically linked to constitutional authority over America's military branches. n202 Hence, the utilization of private agents has led scholars such as Professor Jules Lobel to suggest engagement without U.S. troops could be a shortcut around "democratic decisionmaking that distorts the democratic process and is fundamentally incompatible with the demands of our constitutional system." n203 Whether bypassing Congress is an intentional aim of privatization or an inadvertent byproduct (perhaps, the Executive sought to reap cost-efficiencies), this damage to the tenets of separation of powers, even if temporary - until Congress can revise its background assumptions and seek to establish formal authority over privateers - could compromise the strategic and physical security of the nation, the well-being of individuals inappropriately endangered, and the confidence of the People in the democratic practices and institutions of this nation. Below, I describe how privatization enables the Executive to bypass many of the avenues through which Congress typically exercises its constitutional authority over military affairs.

1. Denial of Congress's Regulatory Role

a. Size of Military

As mentioned above, Congress can preemptively constrain the excesses of a hawkish president by limiting the number of available troops. n204 With a finite-sized public military, the president must deploy troops judiciously, or otherwise be forced to ask Congress to authorize a draft, liberalize [*1063] reservist activation policies, or slowly expand through recruitment and retention programs. n205 Any such request by the president to Congress would invite questions and criticisms of current strategies and priorities. n206 The president's expectation of political opposition provides crucial ex ante checks on executive adventurism and thus has the effect of counseling caution in how soldiers are deployed around the world. The other option for a president constrained by the size of the military is also disastrous politically: The overextended president (unwilling to request a draft) might be forced to withdraw troops from a conflict zone prematurely, and face the inevitable criticism for starting a war that could not be successfully completed.

If on the other hand, there were some external, elastic source of troops, who could complement and supplement the U.S. Armed Forces, provide needed reinforcements, and help the president avoid having to activate reservists and/or reinstituting a military draft, the costs of not acting conservatively and judiciously are lowered. Privatization, at least at the margins, therefore presents a great alternative to lobbying Capitol Hill and the American people for permission to increase the size of the military quickly. n207 While contractors could not "discreetly" command an entire theater in a major conflict, smaller outfits can be selectively positioned to provide the president with much greater flexibility - to continue, for instance, an unpopular or unexpectedly demanding war (that neither the president nor Congress would want to bolster with fresh newly conscripted [*1064] soldiers). Hence with lower political opportunity costs for waging war, the president may be more apt to overcommit American capital - human, monetary, and diplomatic - in ways that would be less likely to occur were Congress and the American people (through their legislators) given a more direct say.

One need not ponder hypotheticals to appreciate this potential for dangerous presidential unilateralism. If it were not for the tens of thousands of private troops supporting and serving alongside of U.S. soldiers in Iraq and Afghanistan, perhaps the President would not have been so eager to invade Iraq; n208 or, perhaps, the limited number of American troops available would have compelled him to seek a broader coalition of countries willing to commit their own personnel to these endeavors at the outset. n209 By relying on external, private sources for troops, the President has, perhaps, overextended American obligations abroad, turned his back on collective security measures, and in the process drawn the ire of a great many. (Hence, these "structural" harms are independent of any accountability-related transgressions that privateers might themselves perpetrate once deployed.) n210

Accordingly, tapping into an external, elastic supply of contract personnel could breach a tacit - and, no doubt, often hard fought - agreement between the Executive and Congress on the size of the military. This harm is, immediately, a fiscal one: it might be the case that Congress and the president agreed to keep the military comparatively small to reduce expenditures and reap peace dividends after, for example, the thawing of the very costly Cold War. n211 But, the harm is also a political [*1065] and legal one: Perhaps Congress kept the military small to dissuade an overly interventionist president from participating in far-flung engagements. Moreover, Congress might have agreed to authorize specific war powers requests only with the knowledge that the engagement would be of a limited scope commensurate with the manpower resources it assumed were available. n212 Again, to the extent that the president could extend the duration and expand the magnitude of war by employing private contractors and to the extent that Congress had not been anticipating the wholesale reliance on military privateers, privatization provides opportunities to subvert these carefully arrived at arrangements.

b. Reporting and Oversight

Another key constraint on the president's conduct of war takes the form of Congress's reporting and oversight functions. n213 Consultation with, written reports to, and oversight hearings before Congress represent important ways in which military policy is subject to considerable scrutiny and accountability. n214 Typically, Congress has opportunities to debate and hold hearings on matters of national security - shedding light and imposing accountability on the Executive Branch. If any given deployment of forces would be received critically, say, as overly dangerous, destructive, or antithetical to American principles of [*1066] democracy, n215 an administration might be deterred from pursuing such ends in the first place. n216 And, even if the Executive, wanting to avoid the use of actual soldiers (because of the reporting requirements under the War Powers Resolution) used CIA operatives, n217 a framework of reporting and oversight statutes are in place to ensure a modicum of accountability and transparency over those individuals too. n218 But when neither members of the U.S. Armed Forces nor other government officials are intimately involved in a particular engagement, it is quite possible that members of Congress would not be as fully informed about the activities being undertaken by private contractors. n219

[*1067] Private firms thus permit the president to conduct military operations (especially small-scale ones not involving many, or any, U.S. troops) without having the same obligations to notify and involve Congress as would exist were American soldiers used. n220 Privateers can, moreover, be contracted into service through third-party nations, host countries, or quasi-independent agencies, as has been the case with some American-based firms operating in the Balkans and even in Iraq. In these instances, Congress has comparatively little oversight authority. Indeed, the principal federal law, the Arms Export Control Act ("AECA"), n221 which, inter alia, sets the terms by which information about American contractors working for foreign nations must be disclosed to Congress, currently requires the State Department to notify Congress only when a contract it authorizes exceeds $ 50 million. n222

And, even if the privateers were operating directly for the federal government, their contracts might (purposefully or unintentionally) have been indirectly routed through the Commerce, Interior, or the State Department, n223 rather than the Defense Department. The congressional committees that principally oversee Commerce and Interior, for example, may not be sufficiently informed or interested, and may not have developed the requisite expertise to be effective monitors of such [*1068] contracts. n224 Finally, even if the contracts were issued through the Pentagon, matters of military privatization may not arise per se - short of a massive fiasco such as the Iraq prison-abuse scandal - that would warrant congressional interest from the Armed Services committees. n225 This is, again, not to say Congress is unfailingly vigilant with respect to oversight of "public" military affairs, and entirely enfeebled with respect to overseeing military contractors. But while recognizing that the differences in congressional oversight are quantitative rather than qualitative, they are nevertheless important.

Indeed, speaking about contracting in Iraq, Professor Deborah Avant notes:

We are not even sure for whom these contractors work or worked. Nor do we know how many other contract employees were - and may still be - working at ... [Abu Ghraib] ... . We do not know precisely what roles these contract employees had at the prison or to which group or agency they were accountable. To trace that, we would need to know the contracting agent - someone representing a group within the Army, probably, but which one? n226

[*1069] And, as Washington Post journalists have recently observed:

The bureaucracy of the contracting process also complicates how contractor operations are run because it's unclear who the client is. For example, the request for contract interrogation support ... came from ... the military group that oversees coalition forces in Iraq. It was then sent to the Interior Department and processed at a federal business center ... . n227

These oversight difficulties cannot be reduced to mere accountability lapses. Rather these oversight difficulties also sound in terms of structural concerns about the architecture of American government. Even if Congress insisted on more centralization in the contracting process, because of the nature and design of military contracts and because of issues of private-sector proprietary information more generally, it is still questionable whether adequate information would readily be disclosed to an oversight committee were either a private military firm or a government official subpoenaed and asked to testify about critical details of an agreement. n228 This proprietary information concern has already become a major source of executive-congressional tension in the commercial military contracting realm. One notable example involves the Air Force invoking the principle of proprietary information to fend off repeated [*1070] requests by Congress to disclose certain information regarding its Tanker contract with Boeing. n229

Therefore, with limited congressional oversight and reporting, there are comparatively fewer political and legal checks constraining how the president conducts military affairs. The Executive's policies may not be in line with the priorities and principles of Congress and the American people, such as when, for instance, the State Department, under the AECA framework, approved requests from MPRI to perform military consulting services for the repressive regime running Equitorial Guinea as well as for the Abacha dictatorship in Nigeria. n230 It is at least debatable whether such permission would have been as readily granted were congressional consent a bona fide prerequisite. And, strategic interests and prudential policymaking aside, the lack of effective oversight deprives Congress and the People of an opportunity to debate normative concerns about delegating governmental policymaking decisions to privateers in the first place.

Accordingly, circumventing congressional oversight lengthens the leash the Executive has in conducting national security policy and, concomitantly, limits the effective transmission of information to the American public.

c. The Appointments Clause: Senate Confirmation of Military Officers

Since military officers are "appointed in the manner of principal officers [of the United States]," n231 every individual, holding at least the rank of second lieutenant or ensign must be nominated by the president [*1071] and confirmed by the Senate. n232 The Senate must also confirm the commissions of all reservists above the level of major. n233 And, each time an officer is promoted to a higher rank, another round of Senate confirmations is required. n234

Though it is rare and administratively difficult for either the president or members of the Senate to be intimately involved in, say, the promotion of any particular Army captain, n235 at the higher levels of military commissions, individual evaluations and considerations become more commonplace. n236 In those cases, where appointments are important in shaping the policy direction as well as the public image of the American military, both presidential and Senate scrutiny is evident. n237 Importantly, however, as Justice Souter noted in Weiss v. United States, many of the military officers subject to Senate confirmation are, constitutionally speaking, "inferior officers" that do not require the advice and consent of the upper house. n238 But Congress has not chosen to vest the appointment of those (inferior) officers in the president and, instead, continues to subject those officers to the "rigors" of Senate confirmation; Congress's decision not to abdicate this responsibility suggests that the Senate values and takes seriously its oversight role in this capacity. n239

If contractors carrying out American policy are not vetted through the process of presidential appointment and Senate confirmation, it is questionable whether, given the Senate's oversight of military officers' [*1072] nominations down to the level of ensigns and lieutenants, they possess the legal authority or legitimacy to exercise the lethal discretion bestowed on them. As discussed, at Abu Ghraib, private contractors with little oversight were allegedly given broad (officer-like) discretion in helping set and implement interrogation policies and, in turn, were themselves issuing to U.S. enlisted soldiers orders that included the directives - ostensibly speaking - to brutalize or humiliate detainees. n240 Whether bypassing the appointments process is a deliberate aspect of the decision to privatize or, more likely, an unintended consequence of the outsourcing objective, the fact remains that contracting out the responsibilities of active military engagement to ersatz "officers" deprives the Senate of one of its core duties - as applied both as a check on an injudicious Executive n241 and as a safeguard for continued civilian control over the military. n242

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