Presumably even if the confirmation process is not treated with the individualized attention given, for example, to Supreme Court nominees, the Senate could still insist that all prospective nominees to command positions must satisfy certain blanket requirements. Those might include an absence of any type of criminal or domestic-abuse citation to ensure that the military advances only those individuals with impeccable professional and ethical credentials. n243 Without such review processes, n244 privatization (as in Abu Ghraib) may continue to permit the advancement of a range of less desirable candidates who lack the moral virtues and skills necessary to lead by deed and example. n245
Of course, since many military officers also were intimately involved in the prison-abuse scandal, clearly the appointments process alone is not a dispositive factor. So while I do not want to overstate the importance of [*1073] the Appointments Clause, n246 I do note that it would be significantly easier to conduct more searching review processes for military officers than it would for both the House and Senate to pass - and the president to sign - comprehensive legislation regulating and, perhaps, licensing the types of employees that military contractors can hire.
d. Governance and Discipline of the Military
Finally, the Constitution authorizes Congress to establish codes of governance for members of the U.S. Armed Forces. n247 Congress sets disciplinary guidelines for soldiers and authorizes the imposition of penalties in the event that they violate their oaths of duty or engage in any other form of proscribed behavior. Civilian contractors are not (and perhaps cannot be) effectively regulated to the same extent - and thus this status differential between contractors and soldiers may provide the Pentagon with opportunities to permit practices and behaviors (such as physical abuse for the purpose of extracting information) that are otherwise off-limits to U.S. troops. n248 Leaving that insidious possibility aside, this issue of discipline via Congress is important because the [*1074] Constitution separates the command of the military from the governance of the military, presumably to prevent an aggrandizement of war powers. But military discipline is broader than a separation-of-powers matter because the president, even as Commander-in-Chief, also may not be able to control contractors to a satisfactory extent. Part of this difficulty in disciplining contractors as if they were soldiers is that the Supreme Court has given Congress virtually plenary power to regulate the behavior of military personnel, and it is at least an open question whether the Court would also permit Congress to impose similarly strict rules backed by criminal punishments on top of - or in lieu of - contractual arrangements with privateers absent a formal declaration of war. n249 Accordingly, because of its complexity and because it is not just a separation-of-powers concern, this subject will be treated at greater length and with broader sweep in Part IV.
2. Denial of the Appropriations Role
By using private contractors, the president may also reduce the likelihood of Congress easily terminating military funding. n250 The sources of funds for private guards in Afghanistan, for coca-crop dusters in Colombia, and for security forces in Iraq may be outside the formal scope of Defense Department appropriations budgets, and hence may be buried within longer-term funding sources that are not as readily apparent to Congress. As noted above in the context of identifying oversight difficulties, when contracts with privateers are scattered throughout or among executive agencies, it becomes very difficult for Congress to detect, target, and - if need be - attack particular streams of funding in order to influence policy via the purse. n251 Congress could, of course, always strike at the Pentagon's budget writ large in lieu of trying to track down discrete funding sources to privateers, but the political fallout for not [*1075] appearing to support America's troops and war effort may be too great of a disincentive. n252
And perhaps most troubling from a legal-control vantage point, sometimes military operations are funded off-shore, by host countries or sympathetic third-parties. This was the case in Bosnia, where for a variety of reasons, a coalition of Muslim nations paid the American contractors for services rendered. n253 Obviously, when engagements are financed from sources outside of the U.S. Treasury, Congress's power of the purse may not be an effective constraint. n254 This is also somewhat of the case in Iraq, where a percentage of the funding for operations (including security operations) administered through the CPA supposedly came from Iraqi oil sales and thus was disconnected from the federal fisc. n255 Hence from an appropriations standpoint, there may be occasions where Congress's influence is quite weak. Therefore, without yet another check, Congress and the American people not only have fewer means of halting operations they deem to be counterproductive, but they also have a more limited appreciation of how well-funded select operations in general may actually be.
3. Denial of the Authorization Role
Regulating military personnel and patrolling funding allocations are secondary weapons in Congress's quiver. The degree to which Congress can regulate personnel and require testimony and briefings may have a modest impact on fundamental presidential decisions to deploy and direct forces in zones of conflict. This is not to diminish the importance of these congressional powers, but rather to acknowledge their individual limitations in terms of influencing and altering executive policymaking. When aggregated, however, these powers loom larger: Congress's cumulative ability to limit troop size and to curtail funding and to insist on oversight briefings weaves a thick web of checks possibly sufficient to constrain unilateral action (and more certainly sufficient to provide incentives for the Executive to want to work closely with Congress).
When we turn to the issue of express authorization, however, Congress's power is immediately evident. While often insisting that congressional authorization is unnecessary, presidents - especially over the last decade - have routinely if begrudgingly sought congressional resolutions in support of military action. n256 Hence the authorization power does serve as a considerable constraint. As Professor Charles Tiefler notes:
The presidential request-for-approval interaction with Congress cranks up an elaborate machinery for the democratic inclusion of the nation in the military commitment decision. Hearings, news coverage, briefings, disputes over conditions or demands for assurances, and floor debate ventilate and test the propositions as to the soundness of the commitment ... . n257
Without the customary and statutory need for ex ante consultation and authorization, the president could deploy private troops in a way that otherwise would never have dared been initiated if limited to American troops and, correspondingly, beholden to the dictates of the War Powers Resolution. n258 But since the War Powers Resolution applies only to the deployment of U.S. Armed Forces n259 and, moreover, since anti-covert operations legislation requiring congressional notification and consultation [*1077] applies only to members of the U.S. intelligence community, n260 there is room to maneuver unilaterally if the president were to use privateers.
The drug war in Colombia provides an apt example. n261 Due to frustrations associated with Congress's stringent limitations on the number and responsibilities of American soldiers in Colombia in the 1990s, private military firms were utilized probably in no small part to circumvent these legislative restrictions. n262 According to P.W. Singer, the
intent of privatized military assistance is to bypass Congressional oversight and provide political cover to the White House if something goes wrong... . [So,] the United States quietly arranged the hire of a slew of PMFs, whose operations in Colombia range far beyond the narrow restrictions placed on U.S. soldiers fighting the drug war. Rather, the firms' operations are intended to help the Colombian military finally end the decades-old [rebel] insurgency. n263
Again, the structural damage is clear: through bypassing Congress - and the American people - the Executive can initiate more conflict than the public might otherwise have been willing to support. And, extending the War Powers Resolution to contractors - though possible (as will be discussed in the Conclusion) - would be politically very difficult given the troubles Congress faced trying to pass the 1973 legislation over the President's veto (and that was when antiwar sentiment and hostility toward presidential warmaking power were both exceedingly high). n264
D. Bypassing the People Through Privatization: Harms to Democracy
Having explored how privatization can short-circuit the effective workings of constitutional government as a government of checks and [*1078] balances, I turn now to the corollary harm: how privatization, by bypassing Congress, can damage the proper functioning of democratic government as one predicated on informed, popular consent. To the extent privatization permits the Executive to carry out military policy unilaterally, without consulting Congress and without seeking formal authorization, it circumvents primary avenues through which the People are informed and blocks off primary channels (namely Congress) through which the People can register their approval or voice their misgivings. n265
In short, the legitimacy of military policymaking depends not just on broad congressional involvement, but also on democratic input and popular consent. n266 In a liberal democracy, the consent of the People is necessary and
ought to be more express in entering war than at almost any other time [or in any other policy matter] both because of the adversity the war will bring (the bodies of the population are subject to the risk of great injury) and also because the existence of the nation (the elemental social pact) is itself at risk. n267
Thus, when, or even if, the public is potentially precluded from taking part in such discussions, the democratic integrity of the country is greatly compromised. n268 As Kant argued:
Every nation must be so organized internally that not the head of the nation - for whom, properly speaking, war has no cost (since he puts the expense off on others, namely the people) - but rather the people who pay for it have the decisive voice as to whether or not there should be war. n269
Privatization creates opacities that may occlude the ready awareness of events. Americans who are unwittingly kept ill-informed of their country's involvement in matters overseas cannot serve their necessary roles in keeping the State responsive and responsible. n270 Conversely, when they are made aware of such engagements, they can express opposition or consent, organize parades or protests, enlist in the military as a sign of support or burn draft cards as a sign of disapproval. n271 However inconvenient it might be for the Executive to be constrained by the opinions of the People, n272 public participation is a necessary and valued component of the republican system as evidenced in the Constitution, culture, and customs of the United States. To use privatization to limit public disclosures and curtail [*1080] public debates is to diminish popular sovereignty. But even without that intent on the part of the Executive, privatization has the effect of circumscribing not only Congress's deliberative role, but also its oversight role, and thus, it could end up limiting the information that reaches the People.
Congress's constitutional role in preserving popular sovereignty is, of course, critical - and revealing. Far from simply serving as an institutional counterbalance to the president, the architecture of congressional responsibility in warmaking bespeaks an express recognition of the imperative to keep the public informed and to keep elected officials responsive. Just as it is endowed to do in the context of presidential treaty-making or ministerial appointments, n273 the Senate, on its own, could have been exclusively entrusted to resist the tendencies of an imperial president bent on unilaterally sending troops into zones of hostility. At the Founding, however, Senators, like the president, were not directly elected by the People - only the House was. n274 So if congressional warmaking authorities were vested only in the Senate (as Hamilton originally proposed), n275 one might read the Constitution as saying that although the Executive must be kept in check by a competing branch of government, there is no corresponding responsibility to ensure that the People (through their biannually elected representatives in the House) would be given a say. But, because the entire Congress was and is empowered in matters of authorizing and funding wars, evidently there is a compelling democratic element to the allocation of war powers that complements the limited-government analysis discussed above in Part III.C. n276
[*1081] The expectation of popular ratification of war does not only follow from the fact that the Constitution gives the lower legislative house a role in decisionmaking; the Constitution provides additional support. Many believe, for example, that the Second Amendment embodies a popular-sovereignty right vis-a-vis military matters. As Professor Elaine Scarry notes:
the history of [the Second Amendment's] formulation and invocation makes clear that whatever its relation to the realm of individuals and the private uses they have devised for guns, the amendment came into being primarily as a way of dispersing military power across the entire population. Like voting, like reapportionment, like taxation, what is at stake in the right to bear arms is a just distribution of political power. n277
Indeed, the Second Amendment gave the People a physical "say" over the conduct of war by limiting the capacity of the federal executive to aggrandize central military power. In providing for the dispersed ownership of weapons by the citizens, the Founders envisioned the existence of a people's army, and thus vested decisions over matters of defense in the hands of people, and communities. n278 Since, at least in the premodern era of warfare, weapons had to "be carried onto the field by persons, the leaders [had to] address the population and persuade them to carry those guns." n279 This understanding comports with Akhil Amar's as well. Professor Amar understands the Second Amendment as originating out of Locke's recognition that "the people's right to alter or abolish tyrannous government invariably required a popular appeal to arms," n280 and as reflecting a deep anxiety about a centralized federal military. n281
[*1082] Today, of course, the role of the militia (and the relevance, at least in this context, of the Second Amendment) has been diminished by the needs of a standing professional army. But that spirit of popular sovereignty has endured and surfaced elsewhere, often at the intersection of war and voting: "Apparently it takes war to open the eyes of America to the injustice she imparts to her young men. For it is surely unjust and discriminating to command men to sacrifice their lives for a decision which they had no part in making." n282 Hence, as early as the Revolutionary War, the franchise has been expanded and enlarged at times of combat to accommodate not only the service of soldiers for their patriotic labor, but also out of recognition for their desire to have a say over the conduct of the war. n283 That tradition of expanding and protecting the franchise for soldiers has continued throughout the decades and centuries. President Lincoln insisted, for example, that the nation hold presidential elections in 1864, in the midst of the Civil War, even though he knew that his defeat would likely lead to the abandonment of efforts to preserve the Union. n284 And during World War II, the United States passed
the Soldier Voting Acts of 1942 and 1944 [that] not only guaranteed soldiers and sailors overseas the right to vote during World War II, but also served as an opening wedge in the battle for poll tax repeal and other congressional action to guarantee the voting rights of blacks more generally. n285
More recently, the democratic linkages to war have been exemplified by the Vietnam era's constitutional amendment that lowered the voting age from twenty-one to eighteen n286 and thus addressed the perceived injustice of denying young soldiers and draftees a formal voice in the direction of war efforts. n287 These tangible connections between war and democracy have prompted Professor Pam Karlan to assert that "virtually every major expansion in the right to vote was connected intimately to war." n288
Accordingly, with a built-in expectation of involvement in matters of war, any effort deliberate or otherwise to bypass Congress - and concomitantly - the People is a direct blow to the vitality of America's democratic system. The unauthorized wars in Laos and Cambodia during the Vietnam conflict and the covert operations to prop-up anti-Communist regimes throughout the 1970s and 1980s in the Americas led to great disillusionment and distrust. n289 It is the People who have been assigned the constitutional right and responsibility to register or withhold their informed consent. Anything serving to undercut that right threatens the legitimacy of the government.
IV. Undermining the Institutional Integrity and Strategic Competence of the U.S. Military
Even if Congress, and the People, were broadly informed and consulted about the shift toward privateers - and even if privatization were explicitly authorized by Congress - serious structural harms could still flow from the [*1084] delegations of military functions to the private sector. In this Part, accordingly, I describe how contracting for the services of private troops, either to serve alongside U.S. military personnel or to operate by themselves, engenders significant institutional harms, strategic liabilities, and morale problems. First, because the Uniform Code of Military Justice does not apply to privateers, there is a greater possibility that contractors would distort a mission or abandon it altogether. This harm transcends the mere accountability concerns that can be remedied through more stringent oversight and more careful contracting. Indeed, it is not so much the possibility that privateers will fail to carry out a mission that is the principal concern; rather, at issue is the weakening of military justice and discipline on the battlefield that could upset civil-military relations and delegitimize democratic warmaking. Accordingly, as I will discuss below, to ensure military contractors comport themselves with the same discipline and restraint expected of regular soldiers, absent a congressional declaration of war, constitutional reform (not simple legislation) might be required.
And, second, I also explore in this Part a concomitant harm: how privateers who participate in U.S. military operations might tarnish public perceptions of the American military and debase the iconography of soldiers as citizen-patriots. Indeed, placing contractors alongside (or in lieu) of soldiers may ultimately damage the privileged normative status the American military has historically enjoyed. This too is not readily remedied through accountability-oriented, or simple legislative reforms.
A. Harms to the Institutional Integrity - and Comparative Excellence - of the American Military
1. The Notion of "Separate Community"
Regardless of whether she is stationed in Tikrit or Fort Dix and whether she is rounding up POWs or walking her dog on the base, the American soldier - from private to four-star general - lives in a "separate community." n290 Members of the U.S. Armed Forces operate within a [*1085] unique constitutional framework of governance and discipline necessary to ensure that they serve as effective yet restrained actors in national defense. n291 Simply stated: the American people entrust to their soldiers the awesome tools of devastating destruction, as well as an equally awesome democratic authority to wield them. In return, the People insist that their delegates on the battlefield are rigidly disciplined and handle their responsibilities with great humility and humanity. n292 Professor James Hirschorn writes:
As long as the Constitution gives the President and Congress the authority to determine the ends for which military force will be used, civilian supremacy requires a system of military discipline that inculcates all ranks with an attitude of active subordination, i.e., the will to carry out the instructions of their civilian superiors despite their own disagreement. n293
Therefore, since the military has a sacred duty to carry out the directives of civilian authorities to a tee, it is crucial (not only for the success of missions, but moreover, for the enduring legitimacy of democratic warmaking) that under no circumstances will an order be ignored or distorted. n294 This degree of absolute and uncompromising [*1086] discipline requires a constitutionally separate governing infrastructure, far stricter than ordinary civil and criminal codes promulgated by civilian governments and necessarily entailing some loss of the ordinary and even constitutional rights citizens of the United States otherwise enjoy. n295 In other words, "an Army sent into combat by a democracy cannot act like one." n296
Accordingly, for generations, the American military community has been a social, legal, and economic entity onto itself; n297 systems have been in place - in one form or another - since the dawning days of the American Revolution to treat members of the U.S. Armed Forces differently (and more restrictively). n298 In 1950, Congress introduced the modern incarnation of this separate system: the Uniform Code of Military Justice ("UCMJ"). n299 The UCMJ represents an entirely endogenous value system that recognizes the weighty authority and discretion given to soldiers and attempts to control that authority and discretion more stringently than regular American constitutional and statutory law would ever permit. The code subjects to military discipline, and at times to court-martial, those individuals who are, inter alia, AWOL, disobedient, insubordinate, malingering, misbehaving, or who render faulty performances of duty. n300
[*1087] The UCMJ is more than a simple legislative enactment, but rather has the effective currency of what Professors William Eskridge and John Ferejohn call "super-statutes" n301 and what Professor Gerhard Casper describes as a "framework statute" n302 because it takes on quasi-constitutional qualities and prescribes an entire positive code of regulations and conduct, respectively. Indeed, the courts have recognized the special and distinct qualities of this governing regime and defer to Congress even when the UCMJ limits soldiers' constitutional liberties in ways unimaginable if ever applied to civilians. n303 Given the intrusive scope of the UCMJ, and the courts' emphasis on Congress's special Article I powers over the Armed Forces qua Armed Forces, it may be [*1088] unlikely that these regulations could easily be extended and applied to civilians, even ones who serve as privateers. n304
And, beyond the formal, legal structure of discipline, the military's separate community bespeaks a distinct social and moral experience. The cohesion of military units (and their detachment from the outside, civilian sphere of life) creates camaraderie and engenders an esprit de corps necessary for optimal performance on the battlefield - where it is said that individuals put their lives on the line for one another as much as for their nation. n305 This inculcation of virtue and honor is accomplished through the "personal immersion" in the ongoing "collective narrative of [the] corps," n306 a narrative that is supplemented in part by an inward-looking sense of shared culture and in part by an outward-oriented aversion to what is perceived as the lax values of civilian life. n307 Again, but for obviously different reasons than legal-constitutional ones, this esprit is difficult to extend to privateers via fiat - legislative or otherwise. n308
It is with this context and history in mind that the blithe introduction of civilian contractors into positions involving the exercise of sensitive military authority seems particularly dangerous and counterproductive - violating the carefully crafted arrangements established over time precisely to minimize the possibility that agents of combat will disobey [*1089] their principals' commands and/or abandon their comrades in the heat of battle.
2. Privatization's Harms
Civilian contractors, not similarly subject to the dictates of military law or to the constitutional oath of office, n309 cannot necessarily be expected or permitted to exercise the authority, judgment, or lethal force entrusted to soldiers. Contractors are not governed and disciplined by the same legal and socio-cultural obligations of duty and loyalty required to ensure the effective subordination of soldiers' own interests and to guarantee the success of a given endeavor. n310 No legal contract between the Pentagon and a private firm can hope to imitate, let alone replicate, this sacred relationship. n311 Otherwise, why would U.S. military personnel be treated [*1090] so differently than, say, civil servants working in the Department of Veterans Affairs? If American servicemen and women could be trusted to do their job as effectively without the UCMJ, then the entire legal and cultural architecture of the "separate community" would be largely unnecessary. The fact, however, that the separate community is so important to maintaining order and ensuring fidelity gives us a sense of why merely tightening contractual obligations and increasing contractor oversight might be all that would be needed when the government outsources commercial responsibilities at Veterans Affairs, but that those measures may not be enough when it comes to privatizing military functions.
Indeed, constitutionally speaking, it is at least questionable whether contractual penalties for violating many of the terms of a private military agreement can rise to the threat-level of an impending court-martial. n312 Thus, given, for example, the Court's historical jurisprudence invalidating laws that criminalize the mere breaking of private employment contracts, one might suppose that there would be some resistance to penalizing contractors as if they were U.S. soldiers (for all sorts of small infractions). n313
Since private agents are not controlled and disciplined by their governmental principals to the extent Congress requires and the Supreme Court allows for U.S. soldiers within the chain-of-command, it would seem inappropriate to delegate to private actors crucial military [*1091] responsibilities, which require not only the careful exercise of life-and-death discretion, but also the internalization of civilian-military protocols regarding fidelity to officers' orders. In short, contractors are not necessarily appropriately situated within the delicately woven legal and constitutional fabric that both endows the military with authority to serve as an effective fighting force and, at the same time, severely curtails soldiers' freedom to deviate in any way from their explicit charge. n314
a. Potential Strategic Liability
First, privateers may at times prove ineffective, if not harmful. As already suggested, they are bound principally by contractual obligations to complete their missions - not by the command structure of the UCMJ nor, probably, by the ethos of honor and self-sacrifice cultivated within military units. Legal threats of punishment, or emotional appeals to fraternity or patriotism may not work to compel contractors to remain in harm's way and accomplish their assigned tasks. Though these contractors may even be decorated veterans and steadfast patriots, no threats of courts-martial or fears that they will be harshly disciplined as deserters enter into their minds and oblige them to complete the assignments. n315 As Bianco and Forest observe:
As civilians, contract employees are not subject to military command and discipline. Workers who refuse an assignment can be fired by their employers but not tossed into the brig. The Pentagon's only recourse is to sue - no comfort at all to a commander in the field who has been left in the lurch by vanished contractors. n316
Immune from the harsh measures of military justice intended to ensure no soldier will prioritize self-preservation over the good of the mission, it is more likely that key contractors, engaged in surveillance flights, responsible for caravanning necessary materiel to the frontlines, or defending key American installations in hostile territory, will simply shirk their duties. n317 Moreover, among contractors there may not be the same psycho-social urgency to display true honor as a selfless contributor in the military effort. n318
The Pentagon is not unaware of the fact that when contractors are deployed, there is a greater likelihood of desertions and refusals to obey orders. n319 As early as 1976, when tensions flared up on the Korean [*1093] peninsula, a number of Defense Department civilian and contract personnel (rendering commercial services) made a mass exodus. Military officers could not "order" the contractors to stay and, as a result, their absence - to the extent their services were missed - compromised American and South Korean interests. n320 More recently, the Pentagon commissioned a study that found commercial contractors might have fled the Persian Gulf theater during the first war against Iraq, were gunfire to have intensified or were Saddam Hussein to have unleashed chemical or biological weapons. n321
With this historical sensitivity to civilian desertions in mind, it seems somewhat reckless for the current Administration to have leveraged the battlefield and the post-war occupation with private contractors in Iraq - especially since this invasion was largely predicated on the U.S. government's conviction that Saddam had (and was prepared to use) Weapons of Mass Destruction. n322 As Colonel Steven Zamparelli has argued:
If death becomes a real threat, there is no doubt that some contractors will exercise their legal rights to get out of the theater. Not so many years ago, that may have simply meant no hot food or reduced morale and welfare activity. Today, it could mean the only people a field commander has to accomplish a critical "core [*1094] competency" task such as weapons-system maintenance ... have left and gone home. n323
Recently, contractors in Iraq have been put to the test and, by and large, have comported themselves quite admirably. Employees of Blackwater were besieged by insurgents and nevertheless ably defended an American installation without the assistance of U.S. troops. n324 Obviously individuals who agree to serve as privateers in conflict zones are aware of the dangers, and companies and their employees who want to be repeat players have every incentive to exhibit that type of responsible, even heroic performance. Yet, on the aggregate, the possibility of desertions, acts of defiance, or reluctance to put one's life on the line is likely to be greater when individuals outside the special confines of the military community are delegated combat responsibilities. n325
b. Perceived Strategic Liability/Morale Problem
Moreover, even if the contractors do not appreciably undermine a campaign, regular U.S. troops' misgivings may not subside - and for a justifiable reason: there's always the threat that the contractors will walk out during the next siege. For the reason expressed above, the mere belief that contractors may flee is enough to introduce uncertainty and distrust among the U.S. troops - which is probably already high given the host of other existing morale problems currently plaguing the service ranks. n326 And, the soldiers' insecurity and their misgivings about privateers must be treated seriously; the military goes to such extensive lengths to engender the appropriate level of cohesion, discipline, and camaraderie n327 that it seems inexplicable why the Pentagon would sacrifice those goals in the name of outsourcing. n328
Parenthetically speaking, there is, of course, a real irony here regarding military morale. For years, while the Pentagon has been consumed with the fear that the presence of gay soldiers might destroy morale, n329 perhaps it has failed to consider the negative ramifications of engaging non-U.S. [*1096] military personnel in essential positions alongside regular troops when those private actors have not labored through basic training nor spent years drilling and dwelling with their military counterparts. n330 Soldiers are aware that not only do privateers often get compensated at a higher rate, but that they also can leave if the fighting gets too intense - hardly factors working in favor of community-building. n331
An additional cause of concern from a morale and confidence-damaging perspective is the possibility that privateers will comport themselves in an unbecoming manner. Unhinged from the narrative of military honor, privateers may never have internalized the ethos of honor and dignity that is inculcated in American GIs. n332 (And, even if the contractors are themselves veterans, that esprit may have long since diminished and been superseded by the mores of the marketplace.) As one recent observer of DynCorp's behavior in Kabul noted, "contractors do not live by the same constraints as active-duty soldiers ... . Their blurring of the military-civilian line serves as a reminder that military discipline not only keeps up morale, but encourages moral behavior." n333 American soldiers today (though admittedly not all model citizen-soldiers themselves) are taught the lessons of, for example, the My Lai massacre, and are told that those who helped stop the bloodshed were given medals; but that those who orchestrated it (and even those who just followed [*1097] orders), were court-martialed. n334 Situating soldiers in a storied tradition of honor may not eradicate all instances of criminal or excessively brutal behavior, but that educational process may inform the soldiers of the institutional condemnation that will be affixed to any such transgressions. n335 It should not therefore be surprising that privateers, though hardly alone, were nevertheless at the center of the Abu Ghraib scandal in Iraq - involving the brutal torturing of Iraqi civilian prisoners - not just as participants, but as supervisors. n336 Whereas courts-martial quickly followed for the U.S. soldiers involved, n337 thus signaling (albeit belatedly) the government's intolerance toward such behavior, n338 it was reported that even after the news of the scandal broke and courts-martial [*1098] were being convened, the contractors were still on the job, n339 just as was the case with those DynCorp employees who ran a sex-slave operation in Bosnia. n340 In the wake of that travesty in the Balkans, the only prophylactic measure taken by the company was to insist that each employee sign a statement saying she understands "human trafficking and prostitution are "immoral, unethical, and strongly prohibited.'" n341 Recall, too, that DynCorp summarily fired rather than rewarded the whistleblower in that case. n342 Since misdeeds like what happened at Abu Ghraib redound through the regular ranks of the military and lead to disillusionment and demoralization, n343 the government, at least by staging investigations and courts-martial, can at least try to embrace a zero-tolerance policy and hope to rebuild confidence among the rank and file and offer credible reassurances to Iraqis and the global community that such behavior is not condoned. n344
c. Perverse Incentives To Prolong/Expand War
An additional harm, which I discuss even though it may seem to be simply a conventional accountability concern, is the possibility that the incentive differential between soldiers and contractors could lead to [*1099] mission distortions. Such an incentive differential (and the corresponding threat of policy distortions) is common, of course, in any number of other policy domains in which privatization has been introduced. n345 Money after all is the reason contractors show up, and monetary considerations may skew the aims of the mission. n346 Whereas presumably many regular soldiers would gladly forgo their "danger pay" to be stateside with their families and out of harm's way, contractors' livelihoods depend on the continuation - if not exacerbation - of conflict. Indeed, it is reported that military contractors have referred to the current administration's reliance on military outsourcing as the "Iraq Gold Mine" n347 and have likewise mused (quite presciently) that the fallout from September 11 would prove to be a privateer's windfall. n348
Outfits paid a per diem may prefer to prolong the engagement, perhaps not working as swiftly or efficiently as they otherwise should. n349 There have, for instance, been allegations that Halliburton has run additional but [*1100] unnecessary supply convoys through Iraq because it gets paid by the trip. n350 If true, this wasteful practice not only endangers the lives of Halliburton employees, but also U.S. troops, who may be dragged into the fray were an insurgent attack to occur. Hence, just as in other privatization contexts where monitoring is difficult or costly, private military contractors may deliberately take longer, say, to train and certify the competency of a domestic police force; or they may slow down their rate of coca-burning work to get paid for a few extra days or weeks. n351 Alternatively, instead of sitting on their hands, they may have the converse - but no more acceptable - agenda: to be as destructive as possible. In this scenario, there may be an impulse to level rather than preserve since oftentimes it is the same (or related) firms providing security services in a zone of conflict that are also key players in physical reconstruction. n352 A particularly devastated area may create the need for a government to issue contracts for road-building, public works projects, and security-training. As Enrique Bernales Ballesteros, a high-ranking official with the United Nations, has noted:
Once a greater degree of security has been attained, the firm apparently begins to exploit the concessions it has received by setting up a number of associates and affiliates which engage in such varying activities as air transport, road building, and import and export, thereby acquiring a significant, if not hegemonic, presence in the economic life of the country in which it is operating. n353
Again, this is not to say perverse incentives are unique to a military-contracting context. But because flying surveillance missions, destroying coca-fields, and providing security details abroad are not linear tasks that lend themselves to precise contractual regimentation and oversight, the agreements between the government and the firms must necessarily be somewhat open-ended; n354 recognizing the uncertainties of dangerous assignments and crediting the service providers with the ability to adapt [*1101] and change course when exigencies require doing so leaves the government vulnerable to more than economic abuses of the contractual relationship. (Among such non-economic concerns would be (1) the erosion of confidence among regular, U.S. soldiers, who do not trust the motives or reliability of self-interested contractors, n355 and (2) extra violence, if it is profitable but otherwise unnecessary to be more violent.)
B. Debunking the Normative Iconography of the Citizen-Soldier
The introduction of private contractors - and their attempted integration into the American fighting forces - may also create a gap, a breach in America's storied civic republican narrative such that now, perhaps, military service to the State will be even more disassociated with notions of citizenship than it already has begun to be in this era of an all-volunteer military; indeed, taking up arms will be viewed even more widely as yet another commercial relationship, not totally unlike catering or maintaining public grounds. n356
Historically, Americans have looked to the moral authority of their country's foreign policy and based it, on no small part, on the willingness of its citizens to put down their ploughshares and fight (and die) for a cause. To disaggregate that connection and commodify the role of a soldier as for-profit contractor may further separate the bounty of citizenship from the obligations that membership entails. That is, at a time when that connection is already tenuous - due in part to the replacement of a universally conscripted military with one comprised of volunteers - further disassociation through the practice of contracting out may prove quite disruptive.
1. First Among Equals: Traditional Laurels for Citizen-Soldiers
Many believe that military service is inextricably linked to citizenship, and vice versa. n357 Accordingly, although this nation's conception of [*1102] service has changed over time, American soldiers and veterans have almost always enjoyed a preeminent status in our society. In a country of equals, founded on the rejection of titles, inherited or even merited, n358 U.S. military officers are, perhaps uniquely, addressed by their command ranks long after their tenure in the military ends - a testament to their esteem in the eyes of the State and its citizenry as well as to the value of those titles above all others. True patriots from generals like Washington n359 to grunts like Truman n360 have taken up arms when their country has needed their service. And, like the ancient Cincinnatus, they returned home to civilian life when the fighting was done. n361 This restraint, this willingness (if not eagerness) to beat their swords back into ploughshares and resume the business of ordinary living, has marked the American military as exceptional and amateurish in the noblest sense of that latter term. n362
Thus, in many circles, to be an American citizen is to be an American solider. n363 Anything short of that demonstrated commitment to the safety [*1103] and security of the Republic relegates one to a lower rung of society, n364 especially if one is an able-bodied male who intentionally avoided military service. n365 Among other reasons, it is the reality of this socio-political hierarchy in America that makes the Pentagon's refusal to permit gays into the military and to permit women into combat (not to mention a bitter history of discrimination against blacks) particularly painful and debilitating to those excluded. n366
I do not want to overstate this point as "soldier-worship," especially in the post-Vietnam climate, when military service has lost some of its imperative and much of its status as an intuitive obligation of citizenship. n367 But, throughout the longer history of this country (and perhaps increasingly again today n368), it is undeniable that the military "man" - be he a patriot-planter of the Eighteenth Century, a universal [*1104] conscriptee in World War II or Korea, a draftee in Vietnam, or a volunteer from today - has been treated as a paragon of civic virtue for dutifully embracing this gravest of responsibilities of citizenship. n369 For their patriotism and sacrifices, they have been duly rewarded, not through the currency of the marketplace, but rather through the currency of the polis. Hence, in addition to the honorific awards associated with rank and merit, n370 military service has also been directly rewarded with the wholesale expansion of the franchise, the furthering of civil rights, and the development of a welfare system that in part predates and in some instances has even outclassed that afforded to America's widows and children. n371
In the Founding years of the Republic, it was non-property holding veterans of the War of Independence who sought and were given the franchise n372 - well before the Jacksonian Revolution ushered in an era of universal (white) manhood suffrage; n373 it was black soldiers' service in the [*1105] Civil War that, at least in part, paved the way for many of the rights associated with Reconstruction; n374 and it was the battlefield contributions of the great-grandchildren of these freemen soldiers, again, in the Second World War, Korea, and Vietnam that helped spark and sustain the Civil Rights Movement. n375 Moreover, despite generally lagging behind men in the achievement of political rights, a lag attributable to some extent to their lack of military service, n376 it was women's participation and sacrifices as part of the war effort in World War I that helped solidify support for female voting during critical stages of the suffrage movement. n377 And, importantly from the social-citizenship perspective, n378 the range of public-benefits programs created for servicemen and their [*1106] families have often been more comprehensive and popularly supported than those designed to aid the country's poor and infirm. n379
These servicemen have also been feted and elevated to the highest ranks of political prestige: on the hustings, a congressional medal of honor, a purple heart, or even an officer's title often trumps the biggest campaign war chest. n380 Being a war hero is not just a proxy for possessing acuity in foreign policy and national defense, but it also is a marker of unparalleled service and self-sacrifice. As Professor Ross Baker has noted, "It's the aura of heroism, the idea that this is someone who is prepared to sacrifice, someone who has demonstrated bravery ... those are qualities [*1107] that are esteemed by Americans, and these qualities can be transferred to politics." n381
In short, the normative treatment of the soldier is as a public figure and hero. Victorious or slain, he (and increasingly she, too) is one of our "boys" (or "girls") in the field. n382 The military of today may no longer be comprised of citizen-militias, but the resonance of its members' public service cannot be ignored. n383 Empirically speaking, it is of course still unclear how privateers will affect this conception of citizen-soldiers; but one might presume, as a starting point, that profit-seeking contractors would diminish the normative standing of soldiers in general.
2. The Marketplace Debases the Polis
We do know (or rather, we think we know) this: Contractors are not per se battling for their country and their countrymen. They are not fighting to defend some ideal, vindicate some set of rights, or achieve national honor. As mentioned earlier, they are not even looking to lay down their weapons and go home. n384 Instead, when objectives are achieved, privateers almost by definition look forward to the next lucrative engagement. n385 Hence, to [*1108] transform and possibly dilute n386 the public service of national defense by introducing profit-motivated contractors may very well debase and commodify what has been the highest civic calling this or any other republic has known. n387
Whether it actually does so or not, privatization appears to weaken this connection between soldier and citizen - a connection that might, as suggested above, already be tenuous in a military era characterized by an all-volunteer fighting force, which includes many who enlist, at least in part, for financial reasons. Simply stated, the outbreak of war constitutes an economic windfall for contractors. With this profit-motive comes a perversion: As Colonel Thomas Dempsey has put it, when an American soldier kills, it is ""because [his] president told [him] to'... . If a contractor shoots someone, it's for another reason: "to get paid.'" n388 This distinction, though perhaps overstated here, may not be lost on the American people, especially given the tenor of the news coming out of Iraq in 2004. During the same week that Pat Tillman, a former NFL standout died in Afghanistan, n389 news broke of the central role privateers [*1109] had in abusing Iraqi prisoners. The contrast between an All-American gridiron hero who gave up millions of dollars and his prime years as a professional athlete to enlist in the Army and an unscrupulous contractor brutalizing Iraqi detainees could not be starker.
The damage here could run beyond morale concerns just on the frontlines; Americans' pride in their "boys and girls" may be dampened not just by the dismay felt at the appalling acts of brutality perpetrated under the American flag (by soldiers and contractors alike), but also by what they may view as the commodification of war, killing for money. n390 In large part, the laurels bestowed on soldiers are premised on their endangering their lives to promote an ideal, preserve justice, or introduce freedom. n391 Even knowing that, for many, their service is economically driven, i.e., performed with an eye toward learning trade skills or seeking the military's help to pay for further education, we still consider today's soldiers to be citizen-patriots. But we do not as readily reconcile economic self-interest and public service when it comes to contractors. n392 If soldiers serve as liberators while incurring great personal sacrifices, then they are heroic; if they instead do so for profit, then they might tarnish the entire enterprise. n393 Moreover, if the country's pride and respect for its military [*1110] wanes, perhaps more than the stature of GIs will fade. Perhaps veterans' benefits will be cut - justified by the somewhat cynical expectation that those who serve in the armed forces are likely to find gainful employment afterwards as military contractors (even if many veterans consider the idea of private combat anathema). n394
Thus, strangely, a public disillusioned by military privatization might end up forcing citizen-soldiers into post-military careers as privateers. n395 Even more significantly, American support for idealistic military endeavors, if those endeavors are perceived as being "corrupted" by the presence of profiteers, might similarly wane - and the notion of American intervention, humanitarian or otherwise, would then become less popular domestically as the public takes stock of who is fighting and for what reasons. n396
Or, returning to a point made earlier in this Article, a transition toward using greater numbers of private troops might engender the opposite result - more indifference to casualties and the lowering of the public's apprehensions about waging war. If those fighting are not America's boys and girls risking their lives to defend core interests of the State, but rather agents who voluntarily contract to perform explicitly dangerous missions, maybe the libertarianism of the market will outweigh the paternalism felt toward America's soldiers and thus ultimately lower inhibitions against armed conflict. n397 But in either case - if Americans are disillusioned with [*1111] military action as illegitimate or if they become desensitized to combat losses - privateers could tarnish the luster of American foreign policy and spark immoderate feelings that may not match the goals and values of balanced, reasoned foreign policy. Again, tighter regulations or other reforms aimed at curtailing contractor discretion and contractor mismanagement are not, by themselves, capable of addressing these broad symbolic and cultural incidents of military privatization.
V. International Law/Diplomacy Harms
Having canvassed the constitutional, legal, and democratic harms in Parts III and IV, I turn now to the international/diplomatic harms privatization may cause. These harms pose considerable consequences for American foreign policy, for American credibility abroad, and for the interests of containing the proliferation of even less well-regulated military profiteering practices around the world.
A. Alienating Friends and Foes Alike
Contracting out allows the U.S. government to purchase strategic outcomes at a much lower political cost than if the boys and girls of America's volunteer army were dispatched. Indeed, an overseas engagement involving contractors might, accordingly, produce neither an official body count nor much political opposition. n398 But, the security and flexibility the United States gains without expending domestic political capital and/or the lives of servicemen and women may, however, serve to validate the perception that the American agenda is driven by dollars rather than ideals; that decisions are made in private, smoke-filled backrooms rather than openly on the floors of Congress. It also invites concerns that the United States is represented in zones of hostilities by individuals who are not subject to the same standards of legal conduct and ethical restraint that this nation and the international community expects of the U.S. Armed Forces.
Among America's allies, when the private cavalry is dispatched instead of the U.S. military, they may think that their particular crisis is outside of core American interests. This suspicion or sense of being slighted can [*1112] breed resentment and a weakening of ties, a response not altogether lost on American leaders. Congressmen Tom Lantos and Henry Hyde had this precise concern in mind when they questioned the wisdom of contracting out President Karzai's security detail. In a joint statement, they noted: "The presence of commercial vendors [protecting Karzai] would send a message to the Afghan people and to President Karzai's adversaries that we are not serious enough about our commitment to Afghanistan to dispatch U.S. personnel." n399
Other allies too may be dissatisfied by the conduct of military engagements by private troops. No doubt the Bosnians would have preferred to receive the help of DynCorp contractors, without their extracurricular involvement in sex-trafficking operations. Moreover, perhaps pro-American leaders in the Middle East similarly feel betrayed, today, by the conduct of American privateers toward Iraqi prisoners. n400 Leaders who endorse American foreign policy aims, often at great domestic peril, n401 are then placed in an even more difficult situation at home when forced to defend their support in the face of American acts of brutality. n402 Of course, transgressions by American soldiers certainly do occur. But, at least those acts can be reported up the chain of command and, in turn, can be swiftly punished, thus demonstrating the U.S. government's commitment to justice and self-restraint; n403 as we have discussed, comparable firmness with contractors is much more difficult to achieve. n404
2. Would-Be Allies
Let us also not forget that American military personnel are, increasingly, serving as diplomats, humanitarian providers, political consultants, and "liberators." n405 Their conduct on such missions could leave as large of an impression on their hosts as would any tangible project or aid package they deliver. Therefore, if the United States is dispatching private actors, who are not comporting themselves well, the conduct of these privateers will inevitably be imputed to all soldiers, if not all Americans, and the goods and services they provide will be, in the long run, devalued. As P.W. Singer notes, a "key realization of contracting is that a firm becomes an extension of government policy and, when operating in foreign lands, its diplomat on the ground. As such, the firm's reputation can ... implicate the government['s] as well." n406
And, finally, America acts not just as an intervenor or liberator, but also as an occupier. While on the ground, in Kabul or Baghdad, the U.S. personnel must work to win the hearts and minds of the locals. n407 If American contractors were to act in an undignified, or offensive manner, it would only hamper the process of gaining the trust of the people. (Again, this assumes that because of the UCMJ and because of the military's ethos of honor, soldiers are less likely to act inappropriately.)
And, among those who already consider America a corrupting force in the world, the privatization of military might, especially in efforts to circumvent U.N. agreements and arms embargoes, only further fan the flames of international dissent and discontent. n408 The maniacal bombers of September 11 undertook diabolical deeds purportedly in the name of the disgruntled who viewed the World Trade Center and the Pentagon as the West's twin evil exports. Amalgamating and conflating those formerly distinct entities via privatized war makes it that much harder to disabuse the world of its perceptions of the United States as an evil economic-military imperialist. n409
B. Flaunting the Ideals and Undermining the Institutions of Collective Security and Global Governance
The U.N. Security Council is widely viewed as the principal venue for deliberating on matters of collective security. n410 Though hamstrung by internecine fighting among the permanent members during most of the Cold War, n411 the Security Council emerged as an authoritative and relatively effective body in the early 1990s, n412 serving as the centerpiece of what the first President Bush dubbed the "New World Order." n413
For the most part, this renewed faith in the Security Council has been affirmed by member nations; n414 but not entirely. Facing opposition on a proposal to intervene in Kosovo in 1999 and again, in 2002-03, on a decision to invade Iraq, the United States has forsaken the imprimatur of the Security Council and sought legitimation elsewhere. n415 For Kosovo, [*1116] America secured NATO's approval; n416 and for Iraq, the United States cobbled together a band of allies, euphemistically called the "Coalition of the Willing." n417 In the process of circumventing the United Nations, however, the United States has damaged the Security Council's authority and called into question the credibility of collective security writ large. n418
Privatization only makes bypassing the U.N. easier and even more insidious than patching together an alternative source of collective authorization. At least with respect to small-scale interventions, where private troops could act in lieu of public soldiers, the United States could nominally remain a good global citizen and nominally recognize the supremacy of the Security Council, while still achieving those desired aims that the Council refuses to endorse. This would allow the United States to avoid the political backlash it felt (vis-a-vis Kosovo and especially Iraq) when it publicly eschewed the Security Council in favor of a more compliant authorizing community. n419 For instance, say the United States or another member proposes a resolution in support of intervening in a small country, perhaps besieged by a humanitarian crisis or laboring [*1117] under civil war. Such a resolution fails. n420 The United States can abide by the decision not to intervene formally, yet can still make available to the country in question a private American outfit to carry out the objectives that the Council rejected. n421
While this avenue of clandestine circumvention is, probably, unavailable in most instances where an effective force would have to be quite large, there are still opportunities in certain situations where small, discrete units would suffice. For example, small forces might prove especially useful in the nascency of attempted coups or during the early stages of civil unrest in the likes of Liberia, Sierra Leone, Sudan, or even Rwanda, where experts have now suggested that if intervention had occurred early enough, a crack outfit could have helped prevent genocidal civil war without the need for an overwhelming show of force. n422 With the use of contractors, therefore, the U.S. government could also achieve some of its foreign policy ends, while not taking any responsibility for promoting them.
But the problem with contracting to avoid a Security Council veto is bigger than the mere issue of avoiding responsibility in any particular engagement: What is worse is that the nation would be turning its back on the legitimate collective security apparatus it helped found and promote, and would not even be doing so in a transparent way, i.e., calling for reforms to the Council's procedures and operations or publicly shaming obstinate members. It would be more honest and responsible for the United States, if it were dissatisfied with some aspect of the Security Council, to seek direct reform. n423 Such reform efforts would demonstrate [*1118] the United States's faith in the system of collective security and international law. But, to continue to operate outside its bounds, either via makeshift coalitions or private operations, while still purporting to respect the institution is to make a mockery of the Security Council and, moreover, to jeopardize the integrity of America's foreign policy. n424
C. Setting Bad Precedents and Encouraging the Global Growth in Private Military Forces and Capabilities
Compared with foreign mercenaries operating elsewhere around the globe, U.S.-based privateers are relatively restrained. To satisfy both the generals in the Pentagon and the investors on Wall Street, American private military firms maintain a level of professionalism and decorum n425 not always shared by their counterparts operating in other regions of the world. n426 According to those who have surveyed privateers from a comparative perspective, there are major military firms based overseas, that lack the professional scruples that American companies appear to possess; simply stated, those firms are more likely to work for despotic or repressive regimes. n427
For example, major international military firms such as Executive Outcomes, Stablico, and Omega Support have each worked at various times on both sides of the Zaire-Congo conflict in the late 1990s. n428 [*1119] Executive Outcomes also helped the Sierra Leone government fend off rebel advances in 1995-96, n429 and then had a hand in appointing an interim head of government - one reportedly with whom the South African-based firm could "work." n430 Evidence also points to the fact that Executive Outcomes considered the possibility of assisting the Rwandan Hutu government in 1994 - not too far in advance of the time that the Hutus were planning to unleash their murderous campaign against the Tutsis - and that Sandline came similarly close to working for the Mobutu regime in Zaire, despite its widespread notoriety as repressive and corrupt. n431 More recently, a failed military coup in Equatorial Guinea involved privateers financed by, among others, the son of Margaret Thatcher. The goal, apparently, was to install a more business-friendly leader as head of the oil-rich state. n432
Private military firms help prop up rogue regimes, resist struggles for self-determination, and contribute to the proliferation and diffusion of weaponry and soldiers around the world - axiomatically a destabilizing and thus undesirable phenomenon. n433 The existence of armaments held by stateless groups complicates the task for responsible countries who (for purposes of self-defense and collective security) keep track of and seek to contain the spread of weapons. The availability and acceptability of contractors makes it more difficult for countries to assess the relative strengths of rival nations, since one phone call to a group of out-of-work Ukrainian fighter pilots could radically alter a region's balance of power. n434 Of course, the existence of one such outfit also spawns greater [*1120] demand - as every government would like the security of a few Ukrainian fighter pilots on retainer. n435 Moreover, to the extent that privateers, especially those operating in Africa, may frequently be foreign nationals, the political and human costs of war may be quite low. n436
All of these factors point toward dangerous forms of military proliferation and thus threaten peace and stability. By all accounts, this global trend should be one the United States vociferously condemns. But can it do so credibly with thousands of its own privateers under contract? Even if the United States were to draw distinctions and make exceptions for its "professional" contractors, it probably still would be unable to lead a campaign against privateers. Therefore, privatization by the United States helps set a bad, enduring precedent and lends the global practice an unwarranted veneer of legitimacy.
Given my analysis in the preceding parts, I might be tempted to conclude with the utmost of economy - and use only three letters: Q.E.D. However, despite the litany of structural (not to mention accountability-based) harms that private contractors introduce onto the national security landscape, it is doubtful that this new phenomenon - however much decried - will quickly fade away. Indeed, the combination of America's extensive overseas military commitments, its already taxed store of reservists, and its inability to stomach a universal draft will probably ensure the continued need for an elastic supply of private troops for the foreseeable future. n437 Hence, although this inquiry would rather conclude by way of proscription than prescription, realism preaches the latter approach might prove more prudent.
Appreciating the staying power of military privatization, critics and apologists alike have started to propose reforms centered on greater [*1121] contractual control and oversight. These measures should, of course, be applauded as steps in the right direction. But, on their own, these reforms do not penetrate deeply enough to reduce the battery of structural harms military privatization creates; in other words, they do not go beyond accountability. Effective reform to combat the harms identified in this Article must accordingly look beyond tightening contracting law and enforcing accountability norms. Reform instead must attack the underlying status discrepancies that distinguish contractors from U.S. troops. If there were no gaps in the way troops and privateers were governed, disciplined, and publicly perceived, then many of the institutional, legal, and symbolic distortions that threaten the vitality of America's democratic institutions, the integrity of its fighting forces, and the legitimacy of its international relations would be greatly reduced.
Accordingly, by way of conclusion, I offer just a few words in service of sketching out a blueprint for reform. n438 Irrespective of the particular details, any such blueprint to alleviate the structural problems raised in this Article must promote symmetry and parity between contractors and American troops in three distinct ways. First, reform must give Congress the regulatory and warmaking authority over privateers that is commensurate with what it enjoys over the U.S. Armed Forces. Achieving parity here, of course, would help minimize the democratic and constitutional harms that may exist today in situations where the legal status differentials between private contractors and U.S. troops can be exploited to circumvent Congress and the American people. Second, reform must enable the federal government to exercise the same amount of control and discipline over privateers as it does over members of the Armed Forces. Eliminating this disparity would help alleviate the concern that private troops representing American interests are - unlike public soldiers - not effectively constrained by civilian and political officials. And, third, reform must somehow serve to lessen the symbolic differences between contractors and soldiers, differences that currently can be leveraged to deploy privateers in zones of hostility where the American people would not as readily commit public soldiers.
The crucial questions this reform agenda ultimately invites, then, are two-fold. Can these status disparities actually be eliminated? And, if so, does achieving parity reduce, if not altogether destroy, military privatization's raison d'etre?
A. Achieving Parity: Leveling the Asymmetries Between the Public and Private
1. Restoring Equilibria in the National Security Constitution
For Congress to establish similar levels of control over privateers to that which it possesses over public troops, it must draft a comprehensive framework statute. Such a statute would both assert Congress's authority over privateers and formalize the processes by which the national legislature is kept informed of their activities. This statute, for instance, might create a department within a federal agency, e.g., the Military Privatization Office of the Department of Defense ("MPO"), that Congress designates as the focal point for all military contracts and that has one assistant secretary in charge. The MPO would be guided by a set of clear regulations, one of which would necessarily be: no federal money can be disbursed to any contractor whose employees carry or fire guns overseas unless (1) the corresponding contract is routed through the MPO and (2) the recipient registers (like a lobbyist would n439) and discloses information about its employees, its clients, and its engagements. The MPO would be required to share this data with Congress and the public, as well as to report more generally - on, say, a quarterly basis - on the location, number, and activities of all contractors serving abroad as part of federal contract work. Moreover, the assistant secretary would have to advise Congress within 48 hours if any of the contractors engage in gunfights and/or if there are any contractor casualties abroad.
Concomitantly, the statute would formalize a process by which Congress can officially authorize privateers to participate in conflicts. This could be achieved simply by extending the application of the existing War Powers Resolution beyond members of the Armed Forces to include contractors. Such a measure would work both to ensure congressional authority over privateers commensurate with the powers it possesses over U.S. military personnel and to increase the level of public awareness and transparency required not only for prudential, accountability reasons, but also to comport with the normative imperatives of democratic governance and popular sovereignty. n440 Obviously, such legislation would probably be [*1123] imperiled by the threat of a presidential veto and, perhaps, even a constitutional challenge (at least with respect to congressional insistence on its power to authorize contractor-led military engagements). n441
2. Disciplining Contractors As Soldiers
The next step would be for Congress to reduce the status disparities between U.S. troops and private contractors in the context of military discipline and control. Currently, these disparities generate reliability and dependability gaps: the government cannot impose the requisite discipline and penalties on privateers to ensure that they do not deviate from, undermine, or otherwise jeopardize a military mission through acts of insubordination and desertion. Such conduct disparities also spawn broader, structural concerns for the effective control and subordination of the U.S. military to the civilian federal government. As discussed at length in Part IV, whereas the UCMJ creates for U.S. troops an entire framework of discipline, under pains of severe punishment, there are no comparable disincentives that exist in the realm of contract law. The threat of a civil breach, even if its consequences ever run to the breaching privateer (and not just to the firm), cannot compare to the threat of being thrown in the brig. n442
Congress, of course, can extend the jurisdictional reach of the codes of American criminal law to contractors overseas - and has already done so with the Military Extraterritorial Jurisdiction Act of 2000. n443 But for a variety of constitutional reasons, it may have more difficulty extending some of the unique rights-infringing provisions of the UCMJ to private contractors, or to any other civilians for that matter (at least in the absence of a concomitant congressional declaration of war). n444 I have in mind here [*1124] those behaviors or practices such as insubordination, criticism of military policy, and desertion that alone are not criminal acts (and arguably could not, constitutionally speaking, be criminalized) if applied to civilians, but which the Supreme Court has allowed Congress, in essence, to criminalize vis-a-vis active members of the Armed Forces precisely because of the military's special, subordinated positioning in the architecture of American governance. n445
To narrow this gap, therefore, would probably require more dramatic measures than could be achieved through ordinary legislation. Perhaps, a constitutional amendment limiting the rights of overseas military contractors, an explicit step to "deputize" contractors and incorporate them into the larger fold of the American military community, or a congressional declaration of war, which definitely extends military law to contractors working overseas with members of the Armed Forces, n446 would be required to achieve effective control on par with what currently disciplines U.S. military personnel.
3. Cultural Conflation: Publicization of Contractors
The final step, then, would be to smooth out the symbolic differences between public and private troops. This would require (1) instilling in contractors a sense of their public charge (what Professor Jody Freeman has called "publicization" n447) and (2) conveying to the American people the sense that soldiers and contractors, symbolically speaking, are one and [*1125] the same. Accomplishing these twin aims might increase morale among public troops worried that their private compatriots will not perform ably and reduce the status disparities that currently allow the president to overcommit forces for a given engagement, respectively.
In some ways, of the three sets of reforms, this is the most difficult task, because it is quite difficult for policymakers to legislate a change in perceptions (either among the contractors or among the American public more generally). It would be pointless, or at least inefficacious, to regulate how people go about valuing one life compared to another when any such exercise is inherently subjective and, likely, also idiosyncratic. But, on the other hand, perhaps the "publicization" follows closely - and somewhat effortlessly - on the heels of the foregoing tangible reforms. n448 Perhaps with the incorporation of private soldiers into the regulatory framework already established for the Armed Forces, with the combining and conflating of soldier and contractor casualty counts, with comparable requirements of oversight and formal authorization, and, moreover, with some measures taken to discipline contractors like soldiers, contractors could feel more closely aligned with the American military and embrace its esprit; and the public, in turn, might begin to view contractors as more closely integrated into the American military community. Indeed, it may be the case that the symbolic differences are largely a function of status differences, and to the extent privateers are limited in their ability to act (comparatively speaking) ultra vires, they may not see themselves - or be perceived - as all that distinct from members of the Armed Forces.
Of course, some residual disparities of no small import will remain. For example, the social and emotional bonds forged while training and serving in military units, emphasized above as instrumental in fostering selflessness, valor, and an esprit de corps, n449 cannot be transmitted to privateers just because they would now be governed by the same disciplinary standards and counted as soldiers for purposes of calculating force projections and body counts. Nor can the public be immediately persuaded that contractors and soldiers are one and the same just because they are similarly regulated. Ultimately, therefore, additional affirmative steps to integrate the two distinct cultures, such as by having privateers eat, train, and live with soldiers, by minimizing salary differentials, and by circumscribing opportunities for privateers to serve foreign clients [*1126] (tereby minimizing reasons for the public to perceive them as mercenaries) would be necessary to reduce further the symbolic differences in a more meaningful way.
B. Coming Full Circle: Arriving at a Place Where Issues of Accountability and Efficiency Are (Again) Paramount
Assuming arguendo that the difficulties associated with devising and implementing the reform measures are overcome - and a comprehensive set of prescriptions do help eliminate many of the structural distortions that currently correspond with military privatization initiatives - there is an additional concern: Would closing these structural gaps destroy military privatization's raison d'etre? In other words, does military outsourcing exist principally to leverage status differentials?
Closing the status gaps would indeed add to the "publicization" of private contractors. As mentioned above, if regulated and disciplined like U.S. troops and if the American people start thinking of them as comparable to U.S. troops, contractors may not be used as readily (or successfully) to exploit legal and symbolic asymmetries. This means, however, that policymakers could not rely on them to accomplish military objectives otherwise difficult to obtain, if not unobtainable, using U.S. soldiers. Yet room would still exist for private actors on the national security landscape: The economic-efficiency virtues of privatization would largely remain unaffected by the structural sets of policy reforms. Indeed, it is possible that contractors from the private sector could still offer the Pentagon high-quality services and lower prices. They could also provide the Defense Department with force-multiplying and specialization capabilities if additional troops are needed. n450
Arriving at that point, where the principal reasons for privatization center on economic efficiency gains, would, actually, permit scholarly analysis to come full circle as well. Once military privatization is stripped of its potential to be structurally damaging, it could then be scrutinized principally on accountability and efficiency grounds. That is, once the legal, constitutional, and symbolic concerns are allayed, we can be in a position to evaluate the true economic virtues of privatization (and the "inherently governmental" tradeoff), an inquiry I expressly bracketed for [*1127] the purposes of this Article. It is then - and perhaps only then - that conventional discussions centering on costs and benefits, transparency, and accountability (all of which are very important) should resume in earnest.