08 Jun Scott Horton’s Six Questions for Laura Dickinson
Over at the Harper’s Magazine site Scott Horton interviews Laura Dickinson about her new book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Horton begins:
Waging war and engaging in diplomacy would generally be reckoned among the most important powers of any sovereign. Yet as Laura Dickinson argues in her new book, Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs, America has been delegating these responsibilities to private companies over the past decade, and offering them lucrative contracts in exchange. Dickinson argues that this practice poses a threat to core public values of human rights, democratic accountability, and transparency.
The discussion ranges over topics including the relationship of neoconservative ideology to private military contractor (PMC) impunity, the immunity claims of PMC’s, why JAGs should be given more authority over PMC’s, and Blackwater founder Erik Prince’s new venture raising a mercenary army for the United Arab Emirates, and other important and timely issues.The relationship of international law to PMC’s has been one of Laura’s areas of expertise for a number of years (see, for example, this relatively recent article and, given Erik Prince’s latest shenanigans, it is good to see not only her new book but a wide-ranging interview at Harper’s.
Response…
Very interesting, and add the fact that the war in Afghanistan costs the U.S. taxpayers around $120 billion a year and one can understand why the longest war in U.S. history has disastrous consequences for the U.S. economy and the middle class in this country (Its the war stupid!), and a shifting of wealth even more than before to those who profit from war. And why doesn’t CNN, et al. report on the 10-year production of opium in Afghanistan and the support of organized crime in the former Soviet Union and Russia itself? The “oil” in Afghanistan is opium!
I think Gretchen Peters, who was on ABC, CNN, and elsewhere on air and in print has done a good job reporting on, and raising awareness of, the opium trade coming out of Afghanistan and its ramifications.
On this general topic, a noteworthy passage from the recent brief the Solicitor General filed in the Supreme Court in the Saleh v. Titan case (http://sblog.s3.amazonaws.com/wp-content/uploads/2011/05/09-1313-Titan-US-Br.pdf): The court of appeals appears to have focused its inquiry on whether the contractor was itself “engaging in combatant activities” (Pet. App. 15) or was “integrated into combatant activities” (id. at 19). In phrasing the test in this manner, the court may have misunderstood the circumscribed role private contractors play in war zones. Under domestic and international law, civilian contractors engaged in authorized activity are not “combatants”; they are “civilians accom- panying the force” and, as such, cannot lawfully engage in “combat functions” or “combat operations.” See DoD, Instruction 3020.41: Contractor Personnel Authorized to Accompany the U.S. Armed Forces ¶ 6.1.1 (Oct. 3, 2005); id. ¶ 6.1.5 (“Functions and duties that are inherently governmental are barred from private sector performance.”); DoD, Instruction 1100.22: Policy & Proce- dures for Determining Workforce Mix, Encl. 4, ¶ 1.c(1)(b) (Apr. 12, 2010) (“Combat Operations” are inherently governmental); 73 Fed. Reg. at 16,764-16,765 (“[T]he Government is not contracting out combat functions.”); Army Reg. 715-9, ¶ 3-3(d) (1999) (“In the context of the law of war, contracted support service personnel… Read more »
I, for one, find it difficult to conclude that security (or “protection”) in a combat zone is not a “combat function.” Of course, security is not the only role contractors play in a combat zone, but it is certainly a role they are currently playing.
DoD’s joint operations publication states that
The protection function focuses on conserving the joint force’s fighting potential in four primary ways — (1) active defensive measures (e.g., air defense) that protect the joint force, its information, its bases, necessary infrastructure, and lines of communications from an adversary’s attack;
And further,
Offensive and Defensive Operations. Major operations and campaigns, whether or not they involve large-scale combat, normally will include some level of both offense and defense (e.g., interdiction, maneuver, forcible entry, fire support, counterair, CND, and base defense).
And further still,
Antiterrorism programs support force protection by establishing defensive measures that reduce the vulnerability of individuals and property to terrorist acts, to include limited response and containment by local military and civilian forces. They also consist of personal security and defensive measures to protect Service members, high-risk personnel (HRP), civilian employees, family members, DOD facilities, information, and equipment.
Response…
Marty & John: there may be some confusion here between domestic categorizations and law of war status. Private contractors are generally civilians and are not “combatants” under the laws of war unless they are members of the regular armed forces of the United States (which, per hypo, they would not be). Thus, to the extent that they engage in hostilities they are unprivileged fighters, not “combatants” with “combatant immunity” for lawful acts of war. They are, therefore, subject to prosecution under relevant domestic law for violations of domestic law (such as laws re: murder, assault & battery). Moreover, to the extent that they directly participate in hostilities they are DPH and are targetable.