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



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n121. Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, United Nations Security Council, U.N. Doc. S/1999/1257 (1999). In fact, the United Nations withdrew a sizable percentage of its on-the-ground troops that had already been in Rwanda (enforcing a pre-existing truce between the Hutus and Tutsis) when the deadly tribal violence began. Barnett, supra note 116, at 62-64, 105-07 (2002); see also Jose E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int'l L. 365, 390 (1999) (describing how the United Nations withdrew most of its troops as soon as violence commenced and some Westerners were killed); Who Will Save Rwanda?, Economist, June 25, 1994, at 13 (describing the United Nations's belated efforts to commit peacekeeping troops).
n122. See Barnett, supra note 116, at 123-24, 174 (describing how the international community was reluctant to undertake another difficult peacekeeping mission so soon after what had transpired in Somalia); United Nations Peacekeeping; Trotting to the Rescue, Economist, June. 25, 1994, at 19 (noting that the Somalia disaster shaped America's apathy in Rwanda and also characterizing the United States's position on relief in Rwanda as "not a soldier, not a cent"); Who Will Save Rwanda?, supra note 121 (noting America's reluctance to engage in humanitarian intervention in the aftermath of Somalia).
n123. See Priest, supra note 47, at 52 (characterizing Colin Powell's belief that national security commitments should not extend to humanitarian relief missions); see also James Mann, Not Your Father's Foreign Policy, Am. Prospect, Apr. 9, 2001, at 28 (emphasizing the current Bush administration's embrace of the Powell Doctrine's prescription - at least before September 11 - to use military force only when "vital U.S. interests [are] at stake"); Michael O'Hanlon, Come Partly Home, America: How To Downsize U.S. Deployments Abroad, Foreign Aff., Mar./Apr. 2001, at 2 (describing efforts to conserve military resources and use them only to further national security interests).
n124. See Romeo Dallaire, Editorial, Looking at Darfur, Seeing Rwanda, N.Y. Times, Oct. 4, 2004, at A25 (noting the need for intervention and doubting whether help will be forthcoming); Jim Fisher-Thompson, State Dep't, Important Role Seen for Private Firms in African Peacekeeping (2004), at http://usinfo.state.gov/af/Archive/2004/Oct/19-30116.html (last visited Dec. 12, 2004) (quoting Congressman Royce as seeing "a role for private military contractors ... in attempting to bring stability to Africa" and noting the nascent presence in the Darfur region of Sudan of at least two private firms hired by the African Union).
n125. See infra notes 159 and 397 and accompanying text.
n126. See John F. Burns, 3 Americans Slain in Blast in Gaza Strip, N.Y. Times, Oct. 16, 2003, at A1; Mark Matthews, Bomb Strikes Diplomatic Convoy, Killing 3 Americans in Gaza Strip: Marks First Fatal Attacks Against U.S. Personnel, Balt. Sun, Oct. 16, 2003, at 1A; Molly Moore & John Ward Anderson, Bomb Kills 3 Americans in Gaza Strip: Guards Were Escorting U.S. Diplomatic Convoy, Wash. Post, Oct. 16, 2003, at A1; Rebecca Santana, Americans Killed in Gaza: Embassy Convoy Bombing Crosses a New, Deadly Line, Atlanta J.-Const., Oct. 16, 2003, at 1A.
n127. See, e.g., After Iran, Millions To Make Embassies Safer, U.S. News & World Rep., Mar. 2, 1981 at 52 (indicating efforts to bolster Marine Corps security forces); Arthur J. Goldberg, Editorial, Security of American Embassies, Christian Sci. Monitor, Jan. 23, 1984, at 12 (describing large security role played by U.S. Marines in American embassies); Smith Hempstone, Embassies at Risk, Nat'l Interest, Fall 1998, 53, 53-55 (describing the Marine Corps guards' role in the U.S. Embassy in Somalia in the early 1990s); Jim Hoagland, Miscasting the Marines, Wash. Post, Apr. 10, 1987, at A2 (characterizing U.S. Marines's expansive security responsibilities when they are assigned to an overseas embassy).
n128. See supra note 109.
n129. See infra note 159 and accompanying text.
n130. See, e.g., von Hoffman, supra note 20, at 79 ("The rationale for privatizing American war making is that corporate warriors can do the job for less.").
n131. See, e.g., Savas, supra note 3, at 118-20; Stuart Butler, Privatization for Public Purposes, in Privatization and Its Alternatives 17 (William T. Gormly, Jr. ed., 1991); Freeman, supra note 6, at 170; Metzger, supra note 39, at 1377, 1433; Minow, supra note 20, at 1230, 1242-46; Rosky, supra note 6, at 929; Trebilcock & Iacobucci, supra note 8, at 1424-30, 1436; Michael D. Wright, A Critique of the Public Choice Theory Case for Privatization: Rhetoric and Reality, 25 Ottawa L. Rev. 1 (1993).
n132. See Freeman, supra note 3, at 1302, 1305 (describing how private actors, even those responsible for providing services under government contracts, are largely exempt from APA and FOIA requirements); Guttman, supra note 3, at 895, 898 n.137, 901-05 (noting how FOIA does not apply to contractors); see also Public Citizen Health Research Group v. HEW, 668 F.2d 537 (D.C. Cir. 1981) (noting that holding private contractors to the same disclosure standards as are applied to government agents would not be in keeping with the aims of using private contractors in the first place).
n133. See Metzger, supra note 39, at 1410-37 (characterizing the legal gap between government providers disciplined by threat of 42 U.S.C. 1983 actions and private contractors who are not considered state actors for such suits).
n134. See Beermann, supra note 33, at 1523-24 (describing cost-savings associated with hiring private employees who lack the job security and civil service status that government employees enjoy); Gilman, supra note 6, at 602-03 (characterizing some percentage of the presumed savings associated with privatization as resulting from the replacement of unionized labor with non-union labor).
n135. See, e.g., DiIulio, supra note 34; Diller, Revolution, supra note 6; Freeman, supra note 3; Kennedy, supra note 6; Minow, supra note 20, at 1232-34, 1241.
n136. See Singer, supra note 20, at 133 (noting that private firms are able to go where the United States could not officially go and explaining that "direct participation could thus be denied and there [would be] no limiting public oversight or debate"); Lobel, supra note 80, at 1079 (suggesting that decisions to use private troops rather than American soldiers often are aimed at circumventing democratic decisionmaking); Eugene B. Smith, The New Condottieri and U.S. Policy: The Privatization of Conflict and Its Implications, Parameters, Winter 2002, at 104, 111 (noting that some observers believe that the use of private firms is "simply a convenient way for the executive branch to avoid congressional oversight"); Tim Spicer, Why We Can Help Where Governments Fear to Tread, Times (London), May 24, 1998, at Features Section ("It's not so much that we can do things better than sovereign governments ... it's that we can do it without any of the spin-offs that make military intervention unpalatable to governments; casualties among [private military companies] do not have the same emotive impact as those from national forces."); Yeoman, supra note 4 (indicating that privatization is a way of bypassing Congress and the American people).
n137. By structural problems, I am referring to the ways in which military privatization can bypass congressional war powers, dampen public awareness, and destabilize the delicate balance between civilian and military governance. These problems are deeper and, I will argue, more intractable than those associated simply with subpar contract performance. For instance, the danger with a contractor possibly circumventing 42 U.S.C. 1983 state-actor liability or evading FOIA disclosures runs principally to concerns of effective provision of services - not to the structural dynamics of constitutional and democratic governance. See supra notes 131-35.
n138. See, e.g., Diller, Form, supra note 6; Diller, Revolution, supra note 6, at 1166-72; Michaels, supra note 6.
n139. See, e.g., Zarate, supra note 20, at 116-44 (describing some of the successes and limitations of regulating private military actors through the United Nations and other international bodies).
n140. See infra Part IV.B; see also notes 152-57 and accompanying text.
n141. See Lawrence F. Kaplan, Willpower, New Republic, Sept. 8, 2003, at 19, 20; Wayne, supra note 2 (describing the difference in symbolic importance between U.S. soldiers and government contractors). For further discussion, see infra Part IV.B.
n142. See, e.g., Jim Dwyer, Troops Told To Carry Freedom, Not the Flag, N.Y. Times, Mar. 20, 2003, at A6 (noting that the U.S. military leadership instructed American soldiers not to raise the American flag in Iraq in order to avoid appearing as conquerors); Emily Wax & Alia Ibrahim, TV Images Stir Anger, Shock and Warnings of Backlash, Wash. Post, Apr. 10, 2003, at A41 (describing how poorly received the image of the American flag draped over a statue of Saddam was on the "Arab street"); Bernard Weinraub, Display of U.S. Flag Barred After Unfurling on Statue, N.Y. Times, Apr. 11, 2003, at B13 (highlighting the appearance problem associated with hanging the American flag in Iraq).
n143. See, e.g., Brzezinski, supra note 47 (noting that the development of unmanned flight and marine vehicles could reduce the need for Air Force pilots, thus taking many combatants out of the direct theater of combat); Kaplan, supra note 141.
n144. The combination of a nation's interventionist bent and its low tolerance for casualties reveals its preference for air campaigns over ("messy") ground wars. See Priest, supra note 47, at 53; Peter J. Boyer, A Different War, New Yorker, July 1, 2002, at 54; Brzezinski, supra note 47; Philip Everts, When the Going Gets Rough: Does the Public Support the Use of Military Force, World Aff., Jan. 1, 2000, at 91 (identifying the strong zero-casualty sentiment felt among the American public).
n145. See Priest, supra note 47, at 53-54; Boyer, supra note 144 (describing the military's frustration with Clinton's promise and characterizing the strategic difficulties this pledge created for the military).
n146. See Michael P. Scharf, Enforcing International Criminal Justice in the New Millenium, 49 DePaul L. Rev. 925, 958 (2000); Ivo H. Daalder & Michael E. O'Hanlon, Unlearning the Lessons of Kosovo, Foreign Pol'y, Sept. 22, 1999, at 128; see also Charles J. Dunlap, Jr., Kosovo, Casualty Aversion, and the American Military Ethos: A Perspective, 10 USAFA J. Leg. Stud. 95, 101-03 (1999) (noting how pervasive the concerns over casualty avoidance and force protection have become within the military establishment).
n147. See infra Part V.B.
n148. See Andrew Gilligan, Inside Lt. Col. Spicer's New Model Army, Sunday Telegraph, Nov. 22, 1998, at A1; see also Howe, supra note 44, at 5 ("Private security [forces] can enter situations where Western governments presently fear to tread, especially after the world's intervention into Somalia.").
n149. See, e.g., John Kerry & Vietnam Veterans Against the War, The New Soldier 14-18 (David Thorne & George Butler eds., 1971) (describing as senseless the mounting casualties in Vietnam and noting how the tallying of the body counts became a national obsession); Robert N. Strassfeld, How Can the Law Regulate Loyalty Without Imperiling It?: "Lose in Vietnam, Bring the Boys Home," 82 N.C. L. Rev. 1891, 1892 (2004) (calling Vietnam "almost certainly America's most unpopular war"); James Dao, How Many Deaths Are Too Many?, N.Y. Times, Sept. 12, 2004, at D1 (comparing the angst about body counts in the Iraqi conflict with that which existed during the Vietnam War).
n150. See, e.g., Brzezinski, supra note 47 (noting that "ever since Vietnam, the American public's threshold for casualties has been thought to be very low"); Nancy Gibbs, Can the Pro-War Consensus Survive?, Time, Feb. 18, 1991, at 32 (speculating that public support for military operations can rapidly dissipate once the death toll mounts, as it did in Vietnam).
n151. See Gilligan, supra note 148 (quoting Tim Spicer); see also Jonathan Alter, Does Bloody Footage Lose Wars?, Newsweek, Feb. 11, 1991, at 38 (describing the public's low tolerance level for American casualties); Brzezinski, supra note 47; Kenneth L. Cain, Editorial, The Legacy of Black Hawk Down, N.Y. Times, Oct. 3, 2003, at A27 (describing the anguish felt by the soldiers who were pinned down in the streets of Mogadishu); Clark, supra note 45 (noting America's impulse to be risk-averse after Vietnam and how that aversion was strengthened in wake of Somalia); Andrew Kohut & Robert C. Toth, Arms and People, Foreign Aff., Nov./Dec. 1994, at 47 (describing television's impact on Americans' aversion to casualties).
n152. See Shapiro, supra note 24; see also supra note 64 and accompanying text; infra notes 153-56 and accompanying text.
n153. Yeoman, supra note 4, at 43.
n154. Tepperman, supra note 13, at 12; see Marego Athans, To Make a Living, Driver Risked It All, Balt. Sun, Feb. 8, 2004, at 1A ("Americans are accustomed to hearing the military death toll in Iraq ... . But largely absent from the public consciousness are the thousands of civilians putting their lives on the line as contractors in Iraq ... ."); Bredemeier, supra note 13 (describing the media's relative indifference to the two private military agents killed in Kuwait by terrorists).
n155. Kevin Myers, Mercenaries Are Much Misunderstood Men, Daily Telegraph, Feb. 17, 2002, at 26.
n156. Id.; see also Priest, supra note 47, at 140 (indicating that the "world's terrorists and despots" believe that "killing a few American soldiers ... is enough to spook Uncle Sam" into inaction) (quoting Mark Bowden, Black Hawk Down: The Story of Modern War 355 (1999)); Shapiro, supra note 24; Editorial, Soldiers Honored, Soldiers Dishonored, N.Y. Times, May 1, 2004, at A14 (describing America's "yearning to give military casualties the honor of an individual remembrance [that] is ingrained in the modern national fabric").
n157. Bill Carter, Debate Over "Nightline" Tribute to War Dead Grows, as McCain Weighs In, N.Y. Times, May 1, 2004, at A5 (noting the prominent reporting of slain American soldiers on television and in the print media); Bill Carter, "Nightline" To Read Off Iraq War Dead, N.Y. Times, Apr. 28, 2004, at A9; Mark Steyn, Editorial, "Nightline" Demoralizes America, Jerusalem Post, May 5, 2004, at 15 (quoting Ted Koppel as saying "the most important thing a journalist can do is remind people of the cost of war").
n158. See, e.g., Sheryl Gay Stolberg, Senate Backs Ban on Photos of G.I. Coffins, N.Y. Times, June 22, 2004, at A17 (noting the Senate's support of the Bush administration's ban on photographing the flag-covered coffins of service members killed overseas and quoting Senator McCain as opposing the ban and saying "I think we ought to know the casualties of war"); Alan Wirzbicki, Show Room, New Republic Online, Apr. 29, 2004, at http://www.tnr.com/doc.mhtml?I=express&s=wirzbicki042904 (last visited Dec. 18, 2004) (citing accusations that President Bush is not releasing photographs of America's war casualties in an effort "to sanitize the human cost of war" and suggesting that "it's hard to avoid the suspicion that something other than concern for privacy drives [the] photoban"); see also Cooper, supra note 22.
n159. David Callahan, Unwinnable Wars 187-88 (1997) ("Since the United States will rarely have vital interests at stake in an ethnic conflict, it will almost always be inclined to use military force on a limited scale, if at all ... . It will seek to keep causalities low."); see also Jane E. Stromseth, Collective Force and Constitutional Responsibility: War Powers in the Post-Cold War Era, 50 U. Miami L. Rev. 145, 164 (1995) (noting that when "operations do not implicate core U.S. security interests, the American public will have a very low tolerance for casualties"); Pape & Meyer, supra note 2, at 22 (suggesting that it might be tempting to American leaders to hire a private security force to oust Liberia's Charles Taylor without having the "risk of dead American ... soldiers"); The O'Reilly Factor (Fox News television broadcast, Oct. 6, 2004) (suggesting that the United States should use contractors to do America's dirty work in order to let soldiers, reservists, and members of the National Guard go home and to spare them from "getting grinded up").
n160. See Michael Hirsh, America Adrift; Writing the History of the Post Cold Wars, Foreign Aff., Nov./Dec. 2001, at 158 (noting how the Bush administration was forced after September 11 to abandon its isolationist campaign promises and engage in multilateralism in order to jump-start the War on Terror); see also Priest, supra note 47, at 38-40 (noting the new imperative to expand military operations). But see Jeffrey Bell, Rumsfeld's Vietnam Syndrome, Wkly. Standard, May 24, 2004, available at http://www.weeklystandard.com/content/public/articles/000/000/004/097jzsnm.asp (last visited Dec. 24, 2004) (noting the enduring vitality of the zero-casualty doctrine).
n161. See, e.g., Cha & Merle, supra note 109 (noting that the Pentagon awarded - though mistakenly - honors such as Purple Hearts and Silver Stars to contractors); Richard Lezin Jones, A Family Tries To Remember a Son Killed in Iraq and His Style, N.Y. Times, May 15, 2004, at A11 (reporting on the death of civilian - but non-military - contractor, Nicholas Berg); Jay Price, The Bridge, News & Observer (Raleigh), July 25, 2004, at A1 (describing the killing in Fallujah of four American contractors whose bodies were defiled and whose deaths were very widely reported in the United States); Edward Wong, Islamist Website Reports Beheading of Second American, N.Y. Times, Sept. 22, 2004, at A11 (reporting on the death of a captured American contractor).
n162. See infra Part VI.
n163. See Gwyn Kirk & Carolyn Bowen France, Redefining Security: Women Challenge U.S. Military Policy and Practice in East Asia, 15 Berkeley Women's L.J. 229, 237-41 (2000) (describing local hostility toward American military presence in Japan and the Philippines); Rafael A. Porrata-Doria, Jr., The Philippine Bases and Status of Forces Agreement: Lessons for the Future, 137 Mil. L. Rev. 67, 68, 85-91 (1992) (characterizing the resentment among Filipinos over the long-term presence of the U.S. military in the Philippines); Toni M. Bugni, Note, The Continued Invasion: Assessing the United States Military Presence on Okinawa Through 1996, 21 Suffolk Transnat'l L. Rev. 85, 93-94 (1997) (indicating the tensions between the U.S. military and the Japanese government due to the high rate of criminal and violent behavior among American servicemen); Michael R. Gordon & Eric Schmitt, U.S. Will Move Air Operations To Qatar Base, N.Y. Times, Apr. 28, 2003, at A1 (alluding to the uncomfortable coexistence between American military personnel and Saudi citizens on Saudi soil).
n164. But see infra note 405.
n165. See, e.g., Priest, supra note 47, at 84 ("The presence of Americans on Islamic holy land in Saudi Arabia was highly controversial among Islamic states (and one reason Osama Bin Laden called for a jihad against the Saudi monarchy and the United States).").
n166. See, e.g., Paul Brest et al., Processes of Constitutional Decisionmaking 2-3 (4th ed. 2000); Max Farrand, The Framing of the Constitution of the United States 3 (1913) (characterizing the non-existence of an executive capable of enforcing the laws of the new union as a key weakness inherent in the Articles of Confederation).
n167. See 1 The Records of the Federal Convention of 1787, at 292 (Max Farrand ed., rev. ed. 1937) [hereinafter Federal Convention]; Lobel, supra note 80, at 1098-99; Charles A. Lofgren, War-making Under the Constitution: The Original Understanding, 81 Yale L.J. 672, 679-82 (1971) (describing the Constitution's vesting of key war powers in Congress).
n168. See, e.g., Brest et al., supra note 166, at 2 (cataloguing the deficiencies of government under the Articles and emphasizing the weakness of that national government in managing the economy, taxing, and printing money); Mark E. Brandon, War and American Constitutional Order, 56 Vand. L. Rev. 1815, 1860 (2003) (characterizing the chief aims of the Constitutional Convention as directed at reallocating powers from the states to the federal government); Lofgren, supra note 167, at 675, 697 (noting that although criticism of the Articles of Confederation regime prompted the call for a strong executive, that criticism did not extend to concerns that the legislature was unable or ill-suited to commit the nation to war); see also 2 Federal Convention, supra note 167, at 318-19 (documenting the rather limited discussion at the Convention regarding the placement and reallocation of war powers); William Michael Treanor, Fame, The Founding, and the Power To Declare War, 82 Cornell L. Rev. 695, 698 (1997) (indicating that the entire debate on warmaking powers occupied only a "page of the published record").
n169. Louis Fisher, Presidential War Powers 1-6 (1995); Brandon, supra note 168, at 1845; Louis Fisher, Unchecked Presidential Wars, 148 U. Pa. L. Rev. 1637, 1637 (2000); Treanor, supra note 168, at 699-702; see also Henfield's Case, 11 F. Cas. 1099, 1109 (C.C.D. Pa. 1793) (No. 6,360) (holding that the Constitution allowed no citizen, not even the president, to lift up the sword of the United States without congressional authorization).
n170. See The Federalist No. 51 (James Madison). The dominant theme of separation of powers served as one of the American republic's leitmotifs, even in the area of warmaking responsibilities. See, e.g., Harold Hongju Koh, The National Security Constitution 83 (1990) (suggesting that the Framers intended the constitutional system of checks and balances to apply equally in the domain of foreign affairs); Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L. Rev. 211, 212 (1988) (describing separation of powers as an "almost sacred article of faith in the deliberations of the constitutional assemblies of the United States"); Gerhard Casper, Constitutional Constraints on the Conduct of Foreign and Defense Policy, 43 U. Chi. L. Rev. 463, 488-89 (1976) [hereinafter Casper, Constitutional Constraints] (emphasizing how separation of powers remained a central constitutional tenet for the Founders even in the allocation of war powers); Treanor, supra note 168, at 700 (describing the Founders' recognition that a strong executive would need to be kept in check by the Congress in matters of war powers); see also Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (noting that the separation-of-powers doctrine's purpose was "not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy").
n171. See, e.g., Gordon S. Wood, The Creation of the American Republic, 1776-1787 (1969).
n172. Madison confided in Jefferson: "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature." Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 The Writings of James Madison 311, 312 (Galliard Hunt ed., 1906); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629-34 (1952) (Douglas, J., concurring) (emphasizing that the intent of a government organized around separation of powers is to deter arbitrary exercises of power); Fisher, supra note 169, at 1650 (noting that the cluster of war powers vested in Congress represented a marked break "with prevailing theories that placed war powers, foreign affairs, and judgments on the law of nations with the Executive"); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War 179 (1989) ("The legislative branch was purposely given the war power as a check upon the impulsive use of military force by the executive.").

Hamilton, for his part, acknowledged the vast war-making power of the legislature, which alone could not only declare war, but could "actually transfer the nation from a state of peace to a state of hostility... . The Legislature alone can interrupt the [blessing of peace] by placing the nation in a state of war." Letters of Pacificus No.1, in 4 The Works of Alexander Hamilton 432, 443 (Henry Cabot Lodge ed., 1904). As Professor Ramsey notes, since Hamilton was such a "vigorous advocate for presidential powers in general ... his concession that the war-initiation power lay with Congress must be counted as substantial." Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543, 1607 (2002).

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