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



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n31. See Terence O'Hara, Carlyle Disavows Plan to Get Kuwait Business, Wash. Post, Oct. 14, 2004, at E1; Steven Pearlstein, Defense Contractors Lobbying for Increased Sales to Countries in the Persian Gulf Area, Wash. Post, Mar. 9, 1991, at C1; Eric Schmitt, Arms Makers' Latest Tune: "Over There, Over There," N.Y. Times, Oct. 4, 1992, at C5; Katharine Q. Seelye, Arms Contractors Spend To Promote an Expanded NATO, N.Y. Times, Mar. 30, 1998, at A1; Tim Smart, Fighting for Foreign Sales: Arms Firms Increasingly Dependent on Deals Abroad, Wash. Post, Feb. 17, 1999, at E1; Ralph Vartabedian & Tyler Marshall, U.S. Defense Industry Heeds Call to Arms - by Foreigners, L.A. Times, Nov. 30, 1993, at A1. See generally Morton H. Halperin, Bureaucratic Politics and Foreign Policy (1974) (characterizing ways in which private interest groups, including defense contractors, will seek to influence foreign policy); James M. Lindsay, Getting Uncle Sam's Ear: Will Ethnic Lobbies Cramp America's Foreign Policy Style, 20 Brookings Rev. 37 (2002); Larry Makinson, The Center for Public Integrity, Outsourcing the Pentagon: Who Benefits from the Politics and Economics of National Security? (2004), at http://www.publicintegrity.org/pns/report.aspx?aid=385 (last visited Dec. 19, 2004) (noting that the top 737 contractors have contributed approximately $ 214 million dollars to political campaigns between 1998 and 2003).
n32. See Baum, supra note 14; Bender, supra note 28; Herbert, supra note 28; Hartung, supra note 30; Keith Naughton & Michael Hirsh, Fanning the Flames: Cheney's Halliburton Ties, Newsweek, Apr. 7, 2003, at 6; Lorraine Woellert, Richard Perle Is Not Alone, Bus. Wk., Apr. 7, 2003, at 42; Editorial, War Profiteering, Nation, May 12, 2003, at 3.
n33. See, e.g., Jack M. Beermann, Privatization and Political Accountability, 28 Fordham Urb. L.J. 1507, 1522 (2001). Professor Beermann writes:

No business produces all the goods it uses, and the same reasons that lead firms to contract out should lead government to contract out. Government may, for example, shut down a heating plant used to heat government buildings and purchase heat from private sources... .

In my view, contracting out of support goods and services does not raise serious accountability issues since the source and quality of such goods and services are not normally something the public cares much about. Of course, corruption in the procurement process may be an issue, and obviously procurement fraud does not exist without procurement, but government officials remain accountable for overspending on goods and services, and the savings from competition to sell to the government is likely to dwarf any increased potential for fraud that procurement entails.

Id. (citations omitted).


n34. See id. (noting that "contracting out of support goods and services does not raise serious accountability issues"); Guttman, supra note 3, at 896 (indicating that "where [contractors] are relied upon solely for "commercial' products or services (e.g. janitorial service, office supplies, utilities, weaponry) there is logic to their governance by distinct sets of rules"); Rosky, supra note 6, at 906 (emphasizing that "early defense contractors were [not] private military institutions ... They did not fight wars; they produced military equipment and supplies"); see also Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105-270, 2(a), 112 Stat. 2382 (requiring executive agencies to submit lists of non-inherently governmental jobs to the Office of Management and Budget to have them earmarked for potential outsourcing); Circular No. A-76, supra note 1; John J. DiIulio, Jr., Response Government by Proxy: A Faithful Overview, 116 Harv. L. Rev. 1271 (2003); Freeman, supra note 3; Minow, supra note 19.
n35. See infra Part II.C; see also Savas, supra note 3, at 118-20 (describing the overwhelming motivation driving privatization initiatives as being grounded in a desire for greater efficiency and cost savings).
n36. See, e.g., Guttman, supra note 3, at 873, 888 (highlighting the problems that may arise when entities outside of the government possess technical and technological expertise that the government itself no longer possesses); Stan Crock, Editorial, The Way the Military Does Business, Wash. Post, July 22, 1997, at A15 (noting that when there is limited competition among private sector contractors, the government may become dependent on one or a handful of companies); Michael Hirsh, The Great Technology Giveaway?, Foreign Aff., Sept./Oct. 1998, at 2 (noting how consolidation of the defense industry has left the United States with very few suppliers of essential governmental goods and services); Makinson, supra note 31 (detailing the scope of sole source, no-bid contracts); cf. Dru Stevenson, Privatization of Welfare Services: Delegation by Commercial Contract, 45 Ariz. L. Rev. 83, 89-92 (2003) (describing how a single contractor operating in a market with high start-up costs can exert a great deal of pressure on its governmental clients); Jonathan Rabinovitz, In Connecticut, A Privately Run Welfare Program Sinks into Chaos, N.Y. Times, Nov. 24, 1997, at B1 (underscoring the difficulties for government agencies to reform a program once they come to rely on a private contractor).
n37. See Guttman, supra note 3, at 891-94; Stevenson, Government, supra note 1; see also 48 C.F.R. 7.301 (1999) ("It is the policy of the Government to ... rely generally on private commercial sources for supplies and services" except with regard to inherently governmental functions); Gen. Acct'g Office, No. GGD-92-11, Are Service Contractors Performing Inherently Governmental Functions? (1991); Office of Federal Procurement Policy: Policy Letter on Inherently Governmental Functions, 57 Fed. Reg. 45,096 (Sept. 30, 1992); Freeman, supra note 6, at 172 (characterizing a set of core governmental functions - including national defense - as inherently governmental and not easily outsourced); Stevenson, supra note 36, at 83 (describing the Bush administration's order for federal agencies to take inventory of their functions and determine which ones should be subject to privatization and which ones should be preserved as inherently governmental); Oliver E. Williamson, Public and Private Bureaucracies: A Transaction Cost Economics Perspective, 15 J.L. Econ. & Org. 306, 322-24 (1999); Baum, supra note 14 (describing Circular No. A-76 as a Reagan administration memorandum urging outsourcing in all aspects of government programs when it is efficient to do so).
n38. See, e.g., Guttman, supra note 3, at 888 (noting that many of the key federal conflict-of-interest laws do not govern the behavior of federal contractors); Deaver Was in White House When His Firm Was Set Up, N.Y. Times, May 3, 1986, at A34; Renae Merle, Recruiting Uncle Sam: The Military Uses a Revolving Door to Defense Jobs, Wash. Post, Feb. 19, 2004, at E1; Renae Merle & Jerry Markon, Ex-Pentagon Official Admits Job Deal, Wash. Post, Apr. 21, 2004, at A1; Judith Miller, Navy Secretary Said to Keep Ties to Company Aiding Arms Makers, N.Y. Times, Dec. 27, 1982, at A1; see also R. Jeffrey Smith, U.S. Deal To Lease Tankers Criticized: Report: Procedures Waived for Boeing, Wash. Post, Apr. 1, 2004, at E1; Jackie Spinner & Thomas E. Ricks, Halliburton Unit Probed for Possible Overbilling of U.S., Wash. Post, Dec. 12, 2003, at A1; Wayne, Growing, supra note 15; Wayne, Air Force, supra note 15; Wayne, Ex-Pentagon, supra note 15. See generally Beth Nolan, Public Interest, Private Income: Conflicts and Control Limits on the Outside Income of Government Officials, 87 Nw. U. L. Rev. 57 (1992).
n39. See Beermann, supra note 33, at 1522; Guttman, supra note 3, at 921-22; Gillian E. Metzger, Privatization as Delegation, 103 Colum. L. Rev. 1367, 1462 (2003). Improper, of course, may not mean illegal or unconstitutional. The non-delegation doctrine has not been robustly interpreted, and moreover, it refers chiefly to congressional delegations, rather than executive ones. See, e.g., Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring) (noting that the non-delegation doctrine ensures that important decisions are made by "the branch of our Government most responsive to the popular will"); United States v. Robel, 389 U.S. 258, 277 (1967) (Brennan, J., concurring) (suggesting that congressional delegations are at times improper when they transfer policymaking functions to executive agencies not as responsive to the People); Arizona v. California, 373 U.S. 546, 626 (1963) (Harlan, J., dissenting in part) (describing the non-delegation doctrine as crucial to ensuring that "fundamental policy decisions ... will be made not by an appointed official but by the body immediately responsible to the people"); Field v. Clark, 143 U.S. 649, 692 (1892) ("That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."); see also Developments in the Law, supra note 6, at 1871. Hence I am not drawing a direct comparison to the constitutional principle of non-delegation, but rather I am simply suggesting that outsourcing sensitive military functions may be illegitimate to the extent it engenders an array of constitutional and prudential problems.
n40. See infra Part III.A.
n41. Wayne, supra note 2 (quoting John H. Hamre, deputy secretary of defense under President Clinton).
n42. See also Major Lisa L. Turner & Major Lynn G. Norton, Civilians at the Tip of the Spear, 51 A.F. L. Rev. 1, 22-23 (2001); Bianco & Forest, supra note 30 (describing Secretary Rumsfeld's desire to expand the military's fighting capabilities without increasing the size of the regular army); Wayne, supra note 2 (describing the extent to which the U.S. government relies on private support); Yeoman, supra note 4.
n43. Although within the vernacular of the U.S. military "soldiers" typically refers only to members of the U.S. Army (and not to Marines, or sailors, or airmen), I will, at times, use the term more generically to describe all military personnel.
n44. See James Dao, "Outsourced' or "Mercenary', He's No Soldier, N.Y. Times, Apr. 25, 2004, at D3 (contrasting less scrupulous mercenaries of earlier generations with the more professional breed that currently occupies an important role in the American military); Pape & Meyer, supra note 2 (quoting British Foreign Secretary Jack Straw as saying "today's world is a far cry from the 1960s, when private military activity usually meant mercenaries of the rather unsavory kind involved in postcolonial or neocolonial conflicts"); Yeoman, supra note 4, at 42 (describing the contractors as patriots still eager to serve their country). But see Singer, supra note 20, at 115-18 (noting how private military firms still conduct business with and help bolster repressive regimes).

Legally, most American privateers are not actually "mercenaries," at least as defined by international law. Mercenaries are a subset of contractors who fight for a nation that is not their own native or adopted one. See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 47, 1125 U.N.T.S. 3; see also Singer, supra note 20, at 42-44; Susan S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem, 148 Mil. L. Rev. 114 (1995); Herbert M. Howe, The Privatization of International Affairs: Global Order and the Privatization of Security, 22 Fletcher F. World Aff. 1 (1998); Dino Kritsiotis, Mercenaries and the Privatization of Warfare, 22 Fletcher F. World Aff. 11, 18 (1998); L.C. Green, The Status of Mercenaries in International Law, 9 Manitoba L.J. 201, 203 (1979).


n45. See Wayne, supra note 2 ("In war, while providing functions crucial to the combat effort, they are not soldiers. Private contractors are not obligated to take orders or to follow military codes of conduct. Their legal obligation is solely to an employment contract, not to their country."); Yeoman, supra note 4 ("We have individuals who are not obligated to follow orders or follow the Military Code of Conduct. Their main obligation is to their employer, not their country.") (quoting Congresswoman Jan Schakowsky); cf. Bianco & Forest, supra note 30 (quoting a U.S. Army publication acknowledging that "contractor loyalty [is] to the almighty dollar"); Wesley Clark, America's Virtual Empire, Wash. Monthly, Nov. 1, 2003, at 20 (noting how members of America's volunteer army have no passion for glory, fortune, or fame and prefer instead to accomplish a mission and return to their families).

Another category of non-U.S. military combatant is the foreign soldier working for the United States, either for money or out of a commonality of interest. These contributors, which include members of the Northern Alliance and Kurdish nationals, have been on display most recently in Afghanistan and Iraq, respectively. See, e.g., Michael Ware, Lying in Wait in Kurdistan, Time, Mar. 3, 2003, at 48; Kevin Whitelaw, War in the Shadows, U.S. News & World Rep., Nov. 11, 2002, at 48; see also Robert M. Blackburn, Mercenaries and Lyndon Johnson's "More Flags": The Hiring of Korean, Filipino, and Thai soldiers in the Vietnam War (1991) (describing the United States's use of foreign soldiers in Vietnam); Janice E. Thompson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe 94 (1994) (same). Although these actors' relationship to the United States is quite interesting, such an examination is well beyond the scope of this Article.


n46. Recall how the demise of the Soviet Union sparked a massive downsizing of the U.S. military. The absence of a large-scale nuclear threat coupled with Americans' demand for a fiscal peace dividend for winning the Cold War (which had been won at the expense of balanced budgets and low national debts) emboldened efforts to slash the U.S. military. See David A. Kaplow & Philip G. Schrag, Carrying a Big Carrot: Linking Multilateral Disarmament and Development Assistance, 91 Colum. L. Rev. 993, 1038 (1991); McGeorge Bundy, From Cold War Toward Trusting Peace, Foreign Aff., Jan. 1990, at 197; Alan Tonelson, Superpower Without a Sword, Foreign Aff., June 1993, at 166; see also Merle, supra note 13 (describing the heavy downsizing that began in 1991 as a "push to privatize anything and everything") (quoting P.W. Singer).

Between the first Gulf War and the months leading up to Operation Iraqi Freedom in 2003, U.S. Army personnel numbers were nearly cut in half, from 780,000 to 480,000; during the same period, the overall active military shrunk by 500,000. See Wayne, supra note 2; see also Tepperman, supra note 13 (noting that this shrinkage has not only "caused manpower shortages within the services [but also] ... a glut of retired officers flooding the private sector").


n47. During the 1990s, the Pentagon began shifting away from a "forward deployed" Army with sizable military forces positioned overseas to a smaller, "power projection" Army with most of its personnel stationed in the United States. This change in force size and force location created a number of sensitive military jobs that - because they are far removed from the frontlines - have the apparent trappings of commercial service provision, but actually involve the exercise of inherently governmental, lethal responsibilities. See Dana Priest, The Mission (2003); Gibson, supra note 44; Bredemeier, supra note 13 (noting that today, "logistics ... is the heart of warfare, and much of it has been privatized"); Kurlantzick, supra note 20, at 17. Simply put, no longer are the frontline soldiers with guns and grenades the only real combatants in a military campaign. See Matthew Brzezinski, The Unmanned Army, N.Y. Times, Apr. 20, 2003, at F38 (quoting a high-ranking Air Force official as saying that "it's possible, that in our lifetime we will be able to run a conflict without ever leaving the United States"); Wayne, supra note 2 (noting the sensitive work private agents perform and how critical such work is to successful combat operations); see also Michael N. Schmitt, Bellum Americanum: The U.S. View of Twenty-First Century War and Its Possible Implications for the Law of Armed Conflict, 19 Mich. J. Int'l L. 1051, 1061-64 (1998); John M. Broder, Far Behind the Front, But Not Out of Danger, N.Y. Times, Mar. 26, 2003, at B2; Vernon Loeb, An Unlikely Super-Warrior Emerges in Afghan War: U.S. Combat Controllers Guide Bombers to Precision Targets, Wash. Post, May 19, 2002, at A16. Technology has made traditional - and even modern - forms of warfare quite primitive.

If much of a given war is waged from the air or from gunships and battle cruisers hundreds of miles from the physical targets, there may be a need to extend and enlarge the conventional definition of a combat zone and of a "combatant," if only for the purposes of identifying what range of actors are being delegated responsibilities for exercising lethal force and managing national security interests. Accordingly, this possible need for a definitional expansion comes at a particularly vexing moment: The definition of combatant may be broadening just as the breadth of the citizen-soldier's role in the American military narrows; in his or her stead, oftentimes, we may find an employee of a private corporation intimately involved in operating the machinery of war. See, e.g., Major Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubicon?, 51 A.F. L. Rev. 111, 111 (2001); Turner & Norton, supra note 42, at 25-27 (2001); see also Merle, supra note 13 (suggesting that in modern warfare, the frontline is becoming an increasingly irrelevant term since actors traditionally understood as "staff" may be the ones launching the missiles).


n48. Covert operations and proxy wars, hallmarks of the extended reach of the American Cold War national security apparatus for the past half-century, were in the 1990s increasingly untenable due to a range of legislative, popular, and diplomatic constraints. Perhaps private military firms today perform some of the tasks and serve in some of the functions previously undertaken by special covert intelligence forces and/or leaders of American-supported regimes. The Pentagon and the State Department, increasingly constrained in their use of "black" operations, may instead turn to contractors, who (as will be discussed below) are regulated more loosely than American intelligence officials, to bypass public attention and, often, congressional scrutiny and carry out policy endeavors that would not be achievable if carried out through conventional or previously used "unconventional" (i.e., covert operations and proxy wars) routes. See Singer, supra note 20; Marshall Silverberg, The Separation of Powers and Control of the CIA's Covert Operations, 68 Tex. L. Rev. 575 (1990).
n49. See Anthony Clayton, France, Soldiers and Africa (1988); Tony Geraghty, March or Die: A New History of the French Foreign Legion (1986); Douglas Porch, The French Foreign Legion: A Complete History of the Legendary Fighting Force (1991).
n50. See Singer, supra note 20, at 76-78; Peter Tickler, The Modern Mercenary 71 (1987); Milliard, supra note 23, at 14; Montgomery Sapone, Have Rifle with Scope, Will Travel: The Global Economy of Mercenary Violence, 30 Cal. W. Int'l L.J. 1, 3 (1999); Bianco & Forest, supra note 30, at 74 (noting that many contemporary outfits of hired guns are "ragtag units"); Fred Coleman, Colonial Grunts No Longer, U.S. News & World Rep., Nov. 1, 1993, at 74 (describing history of rogue volunteers who joined the French Foreign Legion); David Shearer, Outsourcing War, Foreign Pol'y, Fall 1998, at 68, 71.
n51. von Hoffman, supra note 20, at 79; see also Esther Schrader, U.S. Companies Hired to Train Foreign Armies, L.A. Times, Apr. 14, 2002, at A1.
n52. See Graham, Croatia, supra note 13.
n53. See Wayne, supra note 2; see also Matthew J. Gaul, Note, Regulating the New Privateers: Private Military Service Contracting and the Modern Marque and Reprisal Clause, 31 Loy. L.A. L. Rev. 1489 (1998); Stan Crock, Trouble Is Our Business, Bus. Wk., Nov. 20, 1995, at 52.
n54. Milliard, supra note 23, at 11-12.
n55. See Silverstein, supra note 13.
n56. For detailed discussions of these firms, see, for example Singer, supra note 20; Gaul, supra note 53, at 1493-99. See also Joel Brinkley & James Glanz, Contract Workers Implicated in February Army Report on Prison Abuse Remain on the Job, N.Y. Times, May 4, 2004, at A6 (describing CACI as a 41-year-old public company that does extensive information technology contract work for the U.S. government and that has only just, in the 1990s, expanded to offer military intelligence and field work services); Shorrock, supra note 28; Barry Yeoman, Editorial, Need an Army? Just Pick Up the Phone, N.Y. Times, Apr. 2, 2004, at A19 (noting that Blackwater provides services in Iraq such as soldier training and convoy protection, and that it employs ex-Green Berets, Army Rangers, and Navy SEALs).
n57. See Wayne, supra note 2; Jack M. Beermann, Administrative-Law-Like Obligations on Privateized Entities, 49 UCLA L. Rev. 1717, 1721-22 (2002); see also Sean Creehan, Soldiers of Fortune 500: International Mercenaries, Harv. Int'l Rev., Winter 2002, at 6-7. Creehan writes: "The organization of mercenaries into corporations that function like consulting firms has put distance between them and their activities. Mercenary corporations' increasing efficiency and self-regulation is influencing the way legitimate governments view mercenaries as instruments of state policy." Id. at 6; see also Pape & Meyer, supra note 2, at 22. Notably, Lockheed Martin, poised to acquire Titan in Spring of 2004, quickly backed off once it was made public that Titan was intimately involved in the prisoner-abuse scandals in Iraq. See Greg Jaffe et al., Titan Worker Is Cited in Iraqi Scandal, Wall St. J., May 21, 2004, at A3; Renae Merle, Prisoner-Abuse Report Adds to Titan's Troubles; Lockheed Plan To Buy Firm Already Stalled, Wash. Post, May 7, 2004, at E3. But see Deborah Hastings, Use of Civilian Contractors in War Zones Is at Record Levels, AP, Oct. 19, 2004, available at http://nunnews.net/nucnews/2004nn/0410nn/041019nn.htm#329 (last visited Dec. 27, 2004) (noting CACI's considerable profits in 2004, notwithstanding its troubles related to Abu Ghraib and indicating that Titan, which also was involved in Abu Ghraib, received up to $ 400 million from the U.S. government for additional translators in the wake of the Iraq prison abuse scandals); McCarthy, supra note 29 (characterizing the lack of effective corporate control over defense firms, especially subsidiaries, in the post-September 11 contracting frenzy); Ellen McCarthy, Demand Helps CACI Profit Increase 56%, Wash. Post, Aug. 19, 2004, at E5 [hereinafter McCarthy, Demand] (describing CACI's ability to continue to reap massive profits notwithstanding the political and legal fallout from its involvement in the Abu Ghraib scandal).

There are other paths that these outfits, which work closely with the U.S. government, could have taken. They could perhaps get more business if they were to operate off-shore and sell their services to the highest world bidder. Military firms headquartered elsewhere have engaged in outright, unabashed warfare, especially in Africa, with fewer reservations. See infra Part V.C. The fact that the U.S.-based groups discussed in this Article have tied their fortunes to U.S interests does not necessarily make them morally better, but it does make them more reliable and accountable, even if the American contractors' motivations are entirely self-interested.


n58. See Catan et al., supra note 20; see also John Otis, U.S. Invasion of Colombia Urged, Houston Chron., Mar. 24, 2002, at A28 (describing long-standing restrictions against U.S. troops in counter-insurgency efforts); Yeoman, supra note 4, at 43 ("Federal law bans U.S. soldiers from participating in Colombia's war against left-wing rebels [who traffic in drugs to finance their insurgency] and from training army units with ties to right-wing paramilitaries infamous for torture and political killings."). Accordingly, there usually is never more than a small group of American military and diplomatic personnel on the ground, coordinating efforts with the local governments. See Gen. Acct'g. Office, No. GAO-01-1021, Drug Control: State Department Provides Required Aviation Program Oversight, But Safety and Security Should Be Enhanced 17-18 (2001) [hereinafter GAO, Aviation Report]; Singer, supra note 20, at 206-09 (noting congressional unease about allowing U.S. troops to work with Colombian military units with egregious human rights records and who fight rebels rather than narcotraffickers); Kurlantzick, supra note 20. But see Editorial, Sliding into Colombia's Morass, Chi. Trib., Oct. 12, 2004, at C18 (noting Congress's recent decision to authorize an increase in the number of troops to be deployed in Colombia); Eric Green, U.S. State Dep't, State Dept. Explains Need for More U.S. Personnel in Colombia (2004), at http://usinfo.state.gov/gi/Archive/2004/Oct/14-50113.html (last visited Nov. 20, 2004).
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