Commentary: The State That Signed the Contract Felled a City-One Voice at the Intersection of Public War and Private Profit

Commentary: The State That Signed the Contract Felled a City-One Voice at the Intersection of Public War and Private Profit

Abstract (summary)

Despite multiple felonies, no criminal prosecutions have commenced in U.S. courts for the following: the well-documented law of war violations in the form of torture and the cruel, inhuman, and degrading treatment inflicted by Titan Corporation interpreters and CACI International interrogator contract employees of the U.S. government at Abu Ghraib (Danner, 2004:518-523; 552); numerous reports of war crimes through release of chemical weapons hi violation of international law and U.S. Department of Defense directives (Risen, 2008: 1); failure to distinguish between combatant and non-combatant targets of fire committed by mercenary armies from Blackwater (Fainaru, 2007a: 1), Unity Resources (Fainaru, 2007b: 1), and Triple Canopy (Chivers, 2006: 16), to identify only a few; and gang rapes (Ivanovich, 2007: 1) and serial sexual assaults of female employees of Kellogg Brown and Root (KBR) working in Iraq-at the hands of other KBR civilian cocontractors-(Gamboa, 2007:1). Whereas in the language of the 1775 Massachusetts Articles of War all commanders “shall keep good order, and to the utmost of his power, redress all such abuses or disorders…” (in Parks, 1973), the current Code of Conduct of the International Peace Operations Association (IPOA)-the premier global trade organization for companies providing privatized military services-states that “signatories are encouraged to follow all rules of international humanitarian law… that are applicable…[and] pledge, to the extent possible and subject to contractual and legal limitations, to fully cooperate with official investigations into allegations of contractual violations…” (emphasis added).

Full Text

THAT FORMER DEFENSE SECRETARY DONALD RUMSFELD TENDED TO CONFUSE tactics for the successful prosecution of war with strategies that produced private gain in the pharmaceutical industry was probably clear to anyone not career-captured in “yes-sir” circles of group think since at least the December 2001 failure to destroy al Qaeda leaders and their praetorian guard fanatics at Tora Bora. [Emphasis added: DI]  Regrettably, the legacy of a Rumsfeldian view of the “transformation” of public military service and his ratification of best business practices remains intractably with us today: a U.S. military dangerously under strength for the battle joined (Kagan, 2006:109) and resort to private military forces such as Blackwater. Rumsfeld’s policies did not, to be sure, usher in the use of privatized military firms by the Department of Defense (DOD). President George H.W. Bush initiated the contracting out of positions filled earlier by uniformed military members due to a confluence of factors resulting from the end of the Cold War and Clinton administration policies expanded the policy during the 1990s (Singer, 2003:49-70; 67-69). Under Rumsfeld’s watch, however, with the declaration of the global war on terror the practice blossomed in full.

Tragic consequences have resulted from the failure to increase the size of active duty military forces after the only coordinated attacks on the U.S. homeland since 1812. Exacerbating the problem was the administration’s faux Churchillian stand against transnational evil, despite express congressional authorizations for the use of military force in Afghanistan and Iraq. In 2008, as contractors outnumber active duty U.S. troops on the ground in service of the Iraq campaign (Miller, 2007: 1), neither systemic nor effective means to control the conduct of privatized warriors overseas exist-despite increasing reports of their brutal misconduct.1 Pursuant to section 4 of Coalition Provisional Authority Order Number 17 (revised), a “[sending state’s] contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto” (CPA/ORD, 2004: 5). One result is withholding from Iraq’s government the authority to adjudicate crimes committed on its own territory regardless of the offender’s nationality, as recognized under international law.

Although U.S. military courts were granted criminal jurisdiction over certain civilian contractors under the Uniform Code of Military Justice (UCMJ) in October 2006, to date only one case has been investigated and charged by a military commander and none has been brought to trial. Moreover, the Department of Justice demurred to proposed U.S. district court prosecutions after referral of some 20 suspected civilian contractor war crimes late in 2006 (Johnston, 2006: 1). The practice established has not markedly changed to date,2 making the legal status of civilian contractors serving U.S. interests beyond the nation’s shores a better example of the “law-free zone” characterization hi international criminal justice that is applied pell-mell by some, including the accepted and inaccurate use of the term “prison” to describe U.S. detention facilities that secure alien unlawful enemy combatants. At least the captured combatants ‘ cases have repeatedly seen the inside of numerous U.S. and international courtrooms. Victims of an expanding list of reported war crimes allegedly committed by contracted privatized military firms are still waiting their day in court.

Despite multiple felonies, no criminal prosecutions have commenced in U.S. courts for the following: the well-documented law of war violations in the form of torture and the cruel, inhuman, and degrading treatment inflicted by Titan Corporation interpreters and CACI International interrogator contract employees of the U.S. government at Abu Ghraib (Danner, 2004:518-523; 552); numerous reports of war crimes through release of chemical weapons hi violation of international law and U.S. Department of Defense directives (Risen, 2008: 1); failure to distinguish between combatant and non-combatant targets of fire committed by mercenary armies from Blackwater (Fainaru, 2007a: 1), Unity Resources (Fainaru, 2007b: 1), and Triple Canopy (Chivers, 2006: 16), to identify only a few; and gang rapes (Ivanovich, 2007: 1) and serial sexual assaults of female employees of Kellogg Brown and Root (KBR) working in Iraq-at the hands of other KBR civilian cocontractors-(Gamboa, 2007:1). Meanwhile, jurisdictional and statutory interpretive hand wringing by some legislators (Elsea and Serafino, 2007:16-23) and U.S. executive agencies continues.

Without restating arguments better made by noted scholars elsewhere in this special issue of Social Justice, it is incumbent on me as a member of the bar and as a trained soldier to raise fundamental questions regarding the nature of the private contracted armies that have been introduced as this most recent of long wars begins our new millennium. First, why do soldiers matter? Is there an inherent difference between uniformed volunteers who serve the state’s profession of arms, and the contracted, skilled, and deadly agent members of mercenary corporations who operate for profit? second, is waging war an inherently governmental function? What is the sovereign nature of international armed conflict that compels participation only by members of a warrior class directly answerable to the state’s executive through the rule of law? In addressing these questions, I examine provisions of the U.S. Constitution. To frame the problem, I suggest definitions and presuppose a small piece of the very world order with which we are concerned, although toward an internationalist end. As a reflection on an aspirational world order, this Commentary attempts to illuminate perhaps the most serious of the adverse ramifications wrought by extensive U.S. use of privatized warriors: the dilution of the customary international law doctrine of command responsibility for the prevention and punishment of war crimes.

Why Soldiers Matter

Erosion of state sovereignty surrounds us. Policy pundits and academicians will study the ramifications of increasing globalization: East-West (and North-South) economic shifts, world trade imbalances, market inefficiencies, and increasing migration-all potentially intensifying the “clash of civilizations.” Harvard Law Professor Martha Minnow (2005: 1026) has argued that the “growing role of private military companies is a symptom of a larger, dangerous challenge to the aspirations of order in the world represented by the system of nation-states and the rule of law.” Still, the state as the primary instrument of public order, benefactor of physical security, guarantor of fundamental human rights, and principal player on the international stage is not likely to wither away soon. Public military service remains the standard for state defense and the preservation of foreign policy paths and projection of power the world over. Of the soldier’s virtue, von Clausewitz wrote nearly 200 years ago in Vont Kriege:

Military virtue of an Army…is distinguished from mere bravery, and still more from enthusiasm for the business of War. The first is certainly a necessary constituent part of it, but in the same way as bravery, which is a natural gift in some men, may arise in a soldier as a part of an Army from habit and customs, so with him it must also have a different direction from that which it has with others. It must lose that impulse to unbridled activity and exercise offeree which is its characteristic in the individual, and submit itself to demands of a higher kind, to obedience, order, rule, and method (von Clausewitz, 1832: 254).

United States military contractors today fill positions vacated by an undermanned all-volunteer force. But private mercenary armies lack at least three central criteria that define the U.S. military at its core: (1) a constitutional foundation through the oath requirement of Article VI, clause 3, and the concomitant extension of an executive’s Article II duty to ensure that laws are faithfully executed under the Take Care Clause; (2) a personal commitment to that foundation inculcated through selective screening of membership in a regulated, responsible profession of arms; and (3) the necessary discipline in the ranks of its members that bespeaks a broader accountability to the “system” that sends them forth.

Uniformed officers of the U.S. armed forces take an oath constitutionally required of all executive officers by Article VI, clause 3, which requires those granted its commission to bear solemn allegiance to “defend the Constitution of the United States against all enemies…[to] bear true faith and allegiance to the same…[and to] obey the orders of the officers appointed over [them] according to regulations and the Uniform Code of Military Justice” (UCMJ) (5 United States Code 3331, 2007). Simply contrast the Clausewitzian model of soldierly virtue and the above longstanding legal requirement to a sample privatized warriors’ creed of contractors plying their trade in Iraq:

I am a U.S. contractor. I look out for myself, the operators on my left and right, and no one else. I will always take advantage of the fact that I can finally tell military officers to pound sand, and will do so at every opportunity…. I do this job for the opportunity to kill the enemies of my country and to finally get that boat I’ve always wanted…. I will deploy on my terms, and if it ever gets too stupid, I will simply find another company that pays me more (Pelton, 2007: i).

Though not all military contractors would be so crass and parochial, or perchance candid, the profound ramifications of these heavily armed, gun-toting companies, some of which provide their own air force of both rotary and fixed-wing aircraft, is rather chilling. It reminds us that no one appears to have thought through the outsourcing of the U.S. armed forces.

Of course, the cautious reader will observe that oaths may be trivialized and even abused by regime elites for radicalized ends. Perhaps the most famous recent example of the latter is Nazi Germany, where Wehrmacht soldiers were required to swear oaths not to the German fatherland, or even to the Third Reich as a state, but personally to Adolf Hitler (Blandford, 1996:117). This underscores the sociological impact of oaths on the institutions that compel their use and the internalized importance for an individual’s duty as a member of a given group. Anchoring the oath taken by U.S. service members in the republic’s founding document and a preceding act of the Continental Congress from as early as October 1776 (see United States Army home page) means that it cannot be dislodged easily. The confirmed skeptic may question the point of swearing an oath to the Constitution when military leaders demonstrate unfamiliarity with the document and sometimes an unwillingness to uphold the rule of law.3 Yet outliers always attach under any example, with some going quite far in their chosen fields. Still, in the long history of U.S. military service and its membership, honorable models far outnumber the dishonorable. Even when senior officers are not conversant with statutory strictures or mindful of their foremost constitutional mandate to obey and faithfully execute the law as agents of the executive branch, legally trained staff officers within the military are present to whisper in the ear of commanders what the rule of law expects of them in any setting. The U.S. Army alone employs over 2,000 active-duty legal advisors and civilian counselors whose accepted mission is to properly advise the service on legal requirements as the keystone of its broader mission accomplishment.

Institutionalized professionalism is the second necessary attribute privatized contract forces lack whenever force is applied on the scale of warfare. “The modern officer corps is a professional body and the modern military officer a professional man” (Huntington, 1957:7). Although the role of women in Western society over the last 50 years has greatly added to Huntington’s original formulation-West Point first graduated female lieutenants in 1980-the categorical observation is certainly no less true today. Military officers are members of a narrow class of society with unique expertise and responsibility, thoroughly schooled, and partners of a collective that is effectively self-regulating. “The associational professions usually possess written codes of ethics since each practitioner is individually confronted with the problem of proper conduct toward clients and colleagues” (Ibid.: 10). However, the collective bureaucratic nature of diplomatic and military services, the hallmarks that denote the professions, are self-evident hi the officers’ corps. Indeed, the commission and a higher calling to society’s greater good that it represents is for the military officer what the license is for the physician, lawyer, or architect (Ibid. : 7-18).

Businesses that operate solely to maximize profit are divorced from effective state regulation and lack an operating environment and internalized incentive for development of the institutional characteristics necessary for professions. One cannot imagine the graduate of a U.S. service academy or ROTC program wearing an officer’s rank in any branch who would proudly proclaim having selected their life calling because it provides the best opportunity to kill fellow human beings and to buy the boat of then- dreams. What happens ini the event of a conflict between promised material rewards and the responsibility toward events on the ground? Should a state’s foreign policy be based on such considerations when employing military force? Consider the issue of statutory obligations in the example of our contractor’s promise to look out for those on their “left and right” flanks, while mindful of an ability to go elsewhere provided it “pays me more.” Federal law requires exemplary conduct of commissioned officers of the armed forces and compels him or her to exercise “all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge” (10 United State Code 3583(4), 1997). Ultimately, this touchstone of professionalism for the military officer is comprised of responsibility, accountability, and discipline (Pace and Skelton, 2007: 61-71).

The third failing of contracted, civilian armed forces is that they are inherently undisciplined. This is not to suggest that individual contractors may not possess great personal fortitude, self-discipline, or physical courage. In some instances, a contracted force of elite, resolved warriors may have undergone more extensive training regimes in their tradecraft than more junior enlisted counterparts in the uniformed services. Rather, privatized military firms lack institutional discipline, the very quality that holds armies together under the stress of combat and ensures that orders deriving from constitutional sources of authority and public policy formulations, and not those governed by the marketplace and maximization of private profits, are followed. The UCMJ (10 USC 801-946,2007) provides criminal penalties for violation of common law crimes, longstanding customs of the service, acts discrediting the reputation of the armed services, and all misconduct prejudicial to the good order and discipline of military units. As noted, this rich tradition of law has simply not been applied to privatized contractors, even those who are heavily armed, performing patently military missions, and serving alongside uniformed members in theaters of combat. In fact, no source of criminal law has been applied to them effectively.

Similarly, short-cropped hair, standard dress, the hierarchy of structured ranks, the protocol of decorum, and saluted greetings serve a much deeper, regimented function for the professional military member: the inculcation and preservation of institutional discipline. The painstaking, detailed care of a class-A uniformed tunic, the hours of drill and ceremony to shouted commands, and dress-right-dress and troop-the-line precision of platoons on the march are not fundamentally about parade-ground acumen. “The aim is discipline, and to give visible form to the submersion of the individual to an organizational mode” (Milgram, 1974: 181). Milgram’s lesson on authority and obedience is a stark reminder that only professional and well-disciplined warriors ought to be giving and receiving commands when the application of military force is a lever for the state’s experiment.

The private, corporate model has no equivalent of the discipline derived from adherence to the lawful oath and select screening of state regulated, institutionalized, professional membership. Over 2,000 years ago, Sun Tzu (1963:127) stressed the import of an army’s ordered discipline, and Machiavelli (1952: 72) and Frederick the Great (1966:71) abjured the use of the mercenary army.4 We would do well to heed their sage counsel today and reverse the dangerous trend of outsourcing public armed force to profit-driven, undisciplined, privatized military firms.

Waging War as Inherently Governmental

An unintended consequence of the Federal Activities Inventory Reform (FAIR) Act of 1998 (31 USC 501) is arguably the commission of war crimes. The FAIR Act was an impetus for outsourcing to the marketplace public military positions once filled by uniformed service members. It is the common denominator in policies linking torture by contract interrogators at Abu Ghraib (Danner, 2004: 552), the use of chemical weapons in violation of U.S. treaty obligations (Risen, 2008: 1), the murder of an Iraqi soldier on Christmas Eve in 2006 (Fainaru, 2007a: A1), and the reported massacre of 17 Iraqi civilians by Blackwater’s undisciplined fire at Nisoor Square in September 2007 (Fainaru, 2007b: A1). The perpetrators of these unaddressed war crimes, civilian contract employees, can be traced to the statutory requirement that federal agencies affirmatively seek out positions for outsourcing to private industry.

Although public, uniformed service members may also commit war crimes, criminal statutes such as the UCMJ provide a ready mechanism to discipline such misconduct, uphold the rule of law, and reestablish sovereign order and responsibility for transgressions when they occur. The U.S. Army long ago institutionalized the importance of upholding law of war standards (Lieber Code, 1863). Despite the Army’s at times tepid judicial enforcement of this body of law, especially regarding suspected violations within the officers’ ranks, strong institutional pressures nonetheless serve to discourage the lawbreaker. The careers of three Army general officers came to an early end due to the Abu Ghraib catastrophe, for which, as commanders, they were responsible, with one reprimanded, fined, and permanently reduced hi grade. At the same time, numerous junior soldiers with direct culpability stood trials that resulted hi prison sentences and punitive discharges from the service. Currently, a Marine Corps lieutenant colonel faces court-martial for his alleged dereliction of command responsibility duties for failing to conduct an adequate investigation into reports of alleged war crimes by his unit at Haditha, Iraq, in November 2005 (von Zielbauer, 2007: 6).

In contrast, the FAIR Act effectively diffuses executive responsibility for the manner of performance of some of the missions with which they are entrusted. It requires heads of agencies, including DOD, to annually submit a list of activities performed by the agency that are other than inherently governmental (P.L. 105-270, 112 Stat. 2382 (2)(a)), with a view toward competition in contracting and outsourcing those functions to private industry; planning guidance is established in Office of Management and Budget (OMB) Circular A-76. In a military context, outsourcing the relationship between commanders and their “soldiers” distances the executive’s ability to exercise control over, as well as accept responsibility for, a subordinate’s function due to the interceding contract that ostensibly fulfills the task of any given job description. Inherently governmental functions (IGF) are supposedly excluded from outsourcing under the act and defined as those that are “so intimately related to the public interest as to require performance by Federal Government employees” (Ibid.: 5(2)(a)). The statute enunciates IGFs as those that “require the exercise of discretion in applying Federal Government authority or the making of value judgments in making decisions for the Federal Government…” (Ibid.: 5(2)(b)). Specifically, as related to privatization of war-fighter roles,5 the FAIR Act provides that an IGF includes positions requiring the “execution of the laws of the United States so as…to determine, protect, and advance United States economic, political, territorial, property, or other interests by military…action…to significantly affect the life, liberty, or property of private persons” (Ibid.). Purely internal, ministerial positions are excluded from the definition of IGFs, but this should include very few positions filled for the military services deployed overseas in combat zones.

The U.S. military has a long, storied tradition of using civilian contractors in key positions. However, as I have argued elsewhere, the current employment of unprecedented numbers of civilian contractors, the breadth of positions filled, and the relatively recent uncertainty concerning their legal status due to overly cautious judicial rulings have combined to produce an unacceptable policy (Peters, 2006: 376-384; 412-414). Regarding the DOD’s implementation of privatization over the last decade, Yeshiva University’s Paul Verkuil (2006) stated that cost-benefit analyses have led to the replacement of public soldiers with private contractors, yet the decision-making function, which should remain “inherently governmental,” has focused mainly on presumed dollar savings rather than on examining the working tasks of the roles being replaced.

The Department of the Army reviewed its use of military contractors on the battlefield by contracting out a report on the subject from the Rand Corporation. The Rand Report analyzed the Army Field Manual (#3-100), which instructed military officers on how and when to hire private contractors. The Report was designed to sharpen the Army’s risk assessment procedures. It viewed the question in classic make-or-buy transaction cost economics terms. The Report ignored the larger question of whether the type of job being outsourced on the battlefield was the kind that should be contracted out under any circumstances…. The irony of the Rand Report should not be ignored. When the military has to contract out the plan to deal with contracting out on the battlefield, it is demonstrating how limited its “inherent” policy making resources really are (Verkuil, 2006: 444; 445).

Both federal law and the implementing OMB circular allow for challenges to an agency’s decision that characterizes a position and its tasks as open to outsourcing. Relatively few such challenges have been made or successfully argued. Quite remarkably, in 2003, one successful challenge involved the proposed outsourcing of seafood inspector positions at the National Oceanic and Atmospheric Administration (NOAA). After the agency decided to contract out the job of inspecting fish, oysters, and similar fare to the private sector, the Department of Commerce as the cabinet level department to which NOAA reports reversed the determination. It reasoned that assuring the integrity of seafood in international trade is an inherently governmental function because other states will more readily respect such a process when a government-issued badge and state seal are part of the bargain (Ibid.: 459, 460). Hyperbole aside, how is it possible in an otherwise rational world that ensuring the quality of my Red Lobster lunch while placating Canadian fisheries is within the proper scope of U.S. public government services, but armed military intervention in foreign lands and the prosecution of all facets of the outright conduct of war is not? If only we could get U.S. Air Force pilots and crew chiefs to administratively challenge the use of Blackwater’s fleet of heavily armed aircraft outsourced for the Iraq campaign.

Some economists have argued that U.S. privatization of military force has a distinguished pedigree in the form of the Constitution’s Marque and Reprisals Clause of Article I, section 8, clause 11 (Tabarrok, 2007:576). The reasoning goes that although the conduct of war is inherently governmental, there is no meaningful distinction between the fielding of paid, uniformed soldiers and civilian contractors to accomplish the variety of missions required. Beyond the serious institutional shortcomings of this argument, the explicit congressional power to grant letters of marque and reprisal constitutes only half the analysis. Letters of marque were expressly recognized under the law of nations-as today’s international law was known in the 18th century-and authorized private shipping, crewed by privateers, to attack and capture foreign flagged vessels on the high seas during times of declared hostilities. At the beginning of the War of 1812, for example, with only eight U.S. Navy vessels seaworthy, privateers launched quickly from eastern ports and prowled the Atlantic, ultimately destroying or capturing some 2,500 British registered vessels (Ibid.: 571). However, as Tabarrok (Ibid.: 572) and Casto (2006: 678-680) have noted, constitutional authority for these historical, privatized battles was firmly grounded hi the rule of law. “The problem of regulating American businesses empowered by the American government to wage war abroad for profit is not new. Our Founders were quite familiar with the concept and created a comprehensive, three-tiered regulatory model for [exercising] control…” (Casto, 2006: 674). Professor Casto points out that contributing to the effective regulation and control of this earlier version of the privatized warrior were the establishment of federal prize courts, the criminal prosecution of privateers who exceeded the scope of their commissions (otherwise known as pirates subject to be hanged), and civil court actions allowed in admiralty for ship owners unlawfully displaced of their vessels and cargo (Ibid.: 678-680).

I do not argue for civil regulation of privatized military firms, since the legitimacy this might afford them would tend in practice to entrench otherwise unprofessional “soldiers.” The commission of war crimes ought not to be encouraged. Rather, those who identify the early practice of privateers under the Marque and Reprisals Clause with the conduct of war as business for profit as fielded today in Iraq and Afghanistan are incorrect. The former practice was grounded in the rule of law and extensive use of courts to ensure proper conduct by privateers as they sailed forth to do private battle on behalf of the executive.

Law, War Crimes, and the Subcontracting of Command Responsibility

Ironically, the goals of streamlining government services and realizing savings by outsourcing military functions to private industry have added layers of bureaucracy in critical legal respects and immense expenses in terms of restoring the standing of the U.S. in international affairs. The customary international law doctrine of command responsibility is deeply rooted in U.S. domestic law. Since 1775, the rule has been that “every Officer commanding, in quarters, or on the march, shall keep good order, and to the utmost of his power, redress all such abuses or disorders which may be committed by any Officer or Soldier under his command…” (Parks, 1973:5). Military commanders are responsible for everything their unit does or fails to do as an attribute of command. Moreover, the doctrine of command responsibility holds that commanders are criminally liable if they knew, or reasonably should have known, of law of war violations committed by their troops where they fail to act to prevent further abuse and punish those responsible (FM 27-10 the Law of Land Warfare, 1956: 178). This domestic strand in rule of law extends to international law obligations to this day. The rule appears in the Annex to the Hague Convention of 1907 at article 1, which allows that the “law, rights, and duties of war” begin with all military forces “commanded by a person responsible for his subordinates” (Hague Convention No. IV Respecting the Laws and Customs of War on Land). This was reaffirmed more recently in Protocol I Additional to the Geneva Conventions of 1949 at article 86(2), which admonishes that the fact that a violation of the law of war under the “Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility…if they did not take all feasible measures within their power to prevent or repress the breach” (Protocol 1, 1977).

In addition, the responsibility of commanders of military units “and other superiors” for the conduct of troops acting under their authority is codified at article 28 of the Rome Statute of the International Criminal Court. At The Hague, the International Criminal Tribunal for the Former Yugoslavia has also upheld and further refined this prominent international law standard in several of its recent rulings (Meloni, 2007: 624-633). The doctrine approaches that of a commander’s strict liability for war crimes committed by lawful combatant subordinates of his or her unit. By “approaches,” I mean that although not definitively resolved in reported judicial decisions, there is at minimum some element of a knowledge requirement on behalf of the commander for there to be criminal culpability. The doctrine was affirmed following World War Ð by the United States Supreme Court (In Re Yamashita, 327 U.S. 1,1946) as applied to a Japanese general officer commanding forces in the Philippines in 1945, as well as by the Nuremberg Military Tribunal convened under Allied Control Council Law Number 10 after the defeat of Nazi Germany in “the High Command cases” (United States v. Wilhelm von Leeb, et al.). The Yamashita opinion upheld the jurisdiction of a U.S. military commission that convicted the Japanese general of war crimes for widespread atrocities under circumstances of which, it was decided, he must have known. Given that contracted warriors are not held accountable for their actual, individual war crimes under current policy, how can anyone expect the process of outsourcing to private industry under the FAIR Act to hold superiors once, twice, or even three times removed likewise responsible under law?

Further tainting U.S. contracting policies over the last decade is the fact that as expansive outsourcing of military positions was pushed as part of DOD’s “transformation,” an irresponsible reduction took place in the numbers of assigned contracting officers who were adequately trained to provide oversight of this very technical and highly specialized process (Hedgpeth, 2007: D3; Pincus, 2008: 5). As early as the summer of 2004, a GAO report noted a significant shortage of personnel available to effectively monitor the largest DOD contracts for logistic support during contingency operations (Kuhn, 2005:136). Contractual legal instruments that intervene between superior and subordinate and insufficient oversight of the privatization process have combined to blur lines of command and control of outsourced war-fighting functions. From incidents recorded in this Commentary and daily newspaper reports, it is difficult to conclude that anyone is being held legally responsible for the conduct of contractors and subcontractors at war on behalf of the United States. To date, contractors responsible for misconduct, including war crimes in Iraq or Afghanistan, have simply been asked to leave the country, only to be deployed elsewhere. When a privatized military firm takes criminal transgressions seriously, the individual contractor may be fired and the service contract terminated.

After 232 years of developments in the law of war, we should expect more momentous progress. Whereas in the language of the 1775 Massachusetts Articles of War all commanders “shall keep good order, and to the utmost of his power, redress all such abuses or disorders…” (in Parks, 1973), the current Code of Conduct of the International Peace Operations Association (IPOA)-the premier global trade organization for companies providing privatized military services-states that “signatories are encouraged to follow all rules of international humanitarian law… that are applicable…[and] pledge, to the extent possible and subject to contractual and legal limitations, to fully cooperate with official investigations into allegations of contractual violations…” (emphasis added). This IPOA pledge is mildly encouraging in spirit, but means nothing in terms of accountability or of the dictates of international humanitarian law.

This Commentary does not accuse privatized military firms or their many dedicated contract employees of committing war crimes, writ large. Despite a serious and ongoing policy problem, such a charge would be irresponsible and would fail to acknowledge the contribution made by many firms to security environments across the globe. After all, civilian contractors have only filled a void in warfare allowed and encouraged by the sovereign. The legal legacy from Japanese atrocities in the Pacific during World War Ð and the Hitlerite Holocaust in Europe serves as a historical comparison for how the doctrine of command responsibility has developed judicially. Reviewing this history is not meant as a direct analogy to recent and ongoing acts of alleged privatized misconduct. Neither do I suggest that heads of U.S. government agencies have used the FAIR Act to intentionally add layers of contract to the military chain of command through outsourcing, for the purpose of avoiding accountability for criminal acts occurring in tune of war. Yet government agencies have generated interceding legal agreements between the executive’s military commander in the field and mercenaries that fulfill the sovereign’s otherwise inherently governmental functions in a given battle-space, thereby distancing all who may be responsible from potentially being held accountable when war crimes are committed.


“Great is the hand that holds dominion over Man by a scribbled name,” wrote Dylan Thomas in 1936. At that time, Western governments mostly looked the other way. Though the context differs, his words are altogether fitting today. Understrength agencies of state dominion have been permitted to contract out a superior’s potential for criminal liability hi the face of war crimes committed by subordinates. The doctrine of command responsibility, long recognized in international law, has been effectively skirted by the practice of outsourcing to private industry inherently governmental functions of a U.S. armed force at war in distant lands. The sovereign begets war. It must remain the case that the sovereign, and the sovereign’s military commanders, are held to account for all of war’s results.



1. The Department of Defense (DOD) recently proposed an amendment to the Defense Federal Acquisition Regulation Supplement that would require DOD contractors authorized to accompany U.S. armed forces outside the U.S. to undergo law of war “training” (Federal Register, Vol. 73, No. 7, Thursday, January 10, 2008). However, the mandatory training, even if approved, may be Internet “web-based” and there is no enforceable means of punishing contractors who are guilty of committing war crimes. As early as March 2005,1 argued that civilian contractors who are effectively waging public war for the United States in Iraq are subject to military courts-martial. The often assumed constitutional impediments to such trials are belied by two centuries of U.S. practice; courts-martial as a remedy are supported by numerous district and appellate court decisions that affirm military trials of civilians accompanying or serving with active duty service members in the field during time of war. My proposal to invigorate the role of military courts in enforcing fundamental norms of international humanitarian law was published in the summer of 2006 (Peters, 2006: 367-414).

2. The Military Extraterritorial Jurisdiction Act (18 U.S.C. 3261, 2000) and the War Crimes Act (18 U.S.C. 2441, 2000) were designed to extend jurisdiction of U.S. courts to substantive criminal offenses perpetrated by U.S. nationals overseas. They have proved to be woefully ineffective in practice as a means of regulating contract members of privatized military firms. Numerous amendments to broaden their scope have been proposed in recent years. Although hundreds of thousands of civilian employees and contractors have served with U.S. forces since the inception of this long war, only two convictions in civilian courts related to this essay’s thesis have resulted. One was for a criminal assault that resulted in the death of a captured unlawful combatant during interrogation by a Central Intelligence Agency contractor in Afghanistan in 2003 (White and Linzer, 2006:8) and another was for possession of child pornography files on a U.S. government computer network at the Abu Ghraib complex in Iraq in 2005 (Associated Press, 2007). Congress amended the Uniform Code of Military Justice in the National Defense Authorization Act of 2007 (10 U.S.C. 802(a)(10), as amended) to expressly allow prosecutions by military courts of Department of Defense contractors serving with an armed force in the field during periods of declared war or contingency operations. To date, no courts-martial of contractors have convened under that authority.

3. Among the numerous former military officers a skeptic could include might be Army Major General Andrew Jackson, who served during the Revolutionary War as a teenager and was later schooled as a lawyer; he was undoubtedly aware of the officer’s statutory oath to support the Constitution of die United States and of the chief executive’s duty to assure that the laws are faithfully executed. Still, when confronted as president with a Supreme Court decision with which he disagreed regarding the limits of a state’s authority to conduct relations with the Cherokee Nation under the rule of law in 1832, he refused to enforce the Court’s ruling and reportedly remarked that the Chief Justice had “made his decision, now let him enforce it” Sadly, a number of past superintendents of the United States Military Academy, Army senior officers, and leaders of the premier institutions of their times took measures so antithetical to their oath that in retrospect one could conclude they had little grasp of our Constitution’s fundamental precepts. Robert E. Lee, superintendent of West Point from 1852 to 1855, and numerous other Academy graduates and later Confederates who were former officers in the Army of the Republic, including secessionist PresidentJeffersonDavis, believed that bearing “true allegiance to the UnitedStates of America” allowed waging civil war against the Union. Ninety years later, Douglas MacArthur, West Point superintendent from 1919 to 1922, was so insubordinate in his public foreign policy statements, and so unclear on the meaning of the Commander in Chief Clause, that President Truman was forced to remind him; Truman fired MacArthur in April 1951. More recent examples of senior officers, unwilling to accept the rule of law the Constitution imports, could be cited. The 48th superintendent of West Point, Major General Samuel W. Koster, was court-martialed in 1970 for dereliction of duty and failure to obey regulations. Multiple charges stemmed from his knowing refusal as division commander of the unit mat committed the My Lai massacres to conduct an adequate investigation of the atrocities and for his failure to report war crimes as required by law. Due to a convening authority decision that ultimately served to protect senior officers culpable of the war crimes and subsequent cover-ups. General Roster’s charges were dismissed after a pretrial hearing. (Koster was ultimately censured, reduced in grade to brigadier, forced to remit award of his Distinguished Service Medal, and retired soon thereafter.) Far less blatant, but instructive as to familiarity with law. General Alexander M. Haig while serving as secretary of state famously displayed his misunderstanding of presidential succession and the control of federal government after the March 1981 attempt on President Reagan’s life by publicly announcing from the White House briefing room, inexplicably, that “constitutionally” he was “in charge” of the country. Just over 20 years ago, the U.S. national security apparatus employed in its ranks a coterie of such substandard legal bearings that their intrigues embroiled the Reagan administration in a constitutional and international scandal. A troika of U.S. Naval Academy graduates, John Poindexter, Robert McFarlane, and Oliver North, along with retired Air Force Major General Richard secord, were all convicted of lying to Congress and obstructing justice in one form or another after fallout from the Iran-Contra matter caught up with them. (On appeal, Poindexter’s and North’s convictions were set aside due to the prosecution’s reliance on evidence obtained under grants of testimonial immunity.) I concede to the skeptic this much: given the authority that U.S. military officers potentially wield, it remains a very good and necessary thing that Constitutional law is taught as a required course to all West Point undergraduate cadets.

4. It is true that “mercenary” armies of ancient times, and of concern to the rulers here cited, were primarily made up of nationals other than of the principal force afield. As a consequence, such troops were viewed as of questionable allegiance. Still, underlying concerns have always been and remain today the mercenary’s motive for participation in foreign adventure, loyalty to the sovereign’s rule, adherence to governing law, and discipline in the face of adversity.

5. I use the term “war-fighter” to include anyone serving in a theater of active combat operations on behalf of the U.S. government who is armed and presumptively prepared to do battle with enemies of the republic. This includes combat interrogators and interpreters, engineers at construction sites in hostile locales, intelligence specialists, members of security details (regardless of which executive department has contracted their services), and all the personnel providing security for, driving in, or running convoy operations over main supply routes, as well as numerous others actually accompanying military units afield subject to fact-specific determinations.



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WM. C. PETERS was appointed as Assistant Professor in the Department of Sociology and Criminal Justice, State University of New York (SUNY), Pittsburgh, for the academic year 2008-2009. The author is a lawyer and was an Army staff officer for more than 12 years. Before joining the SUNY faculty, Professor Peters taught Constitutional and International Law at West Point, where he also served as the deputy director of the Law of Armed Conflict Center. The views expressed here are solely the author’s and should not be construed as representing the position of the Department of Defense, the U.S. Army and its legal branch, the U.S. Military Academy, or any other government entity.

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