[Jeffrey K. Walker is Assistant Dean for Transnational Programs at St. John's University School of Law]
This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.
With
Outsourcing War and Peace, Laura Dickinson did a remarkable job canvassing an area of the law that has received a significant amount of attention and scholarship since the publication of Peter Singer’s landmark 2003 book,
Corporate Warriors. Laura has done the heavy lifting for those of us who haven’t been able to keep up with this burgeoning research, laying out a tightly crafted survey of the scholarship while adding a lot of value to the debate with her “now where do we go from here?” recommendations for change. So I loudly applaud her fine efforts.
Because Laura has bitten off a very big scholarship challenge with
Outsourcing War and Peace, the work does suffer a bit at the margins from being overly broad in some areas that call for deeper and more nuanced analysis and discussion. For example, in discussing the possibility of broadening the tort liability of contractor personnel engaged in direct support of military activities, she comes down on the side of allowing Federal Tort Claims Act (FTCA) immunity for contractors, albeit with the narrower test for immunity proposed by the dissent in the D.C. Circuit’s
Saleh case. While I agree that an overly broad definition of FTCA immunity is a mistake and the majority in
Saleh got this dangerously wrong, I would have liked to have seen deeper discussion of the more fundamental issues at play here. Although contractors may appear to be “integrated into combat activities” as Judge Silberman claims in his majority opinion, how truly integrated can contractor personnel be when they are not subject to military command authority with the
penal sanctions faced by military members for disobeying, can quit whenever they really don’t like something they’ve been told to do or not do, and ultimately do not enjoy combatant immunity for their otherwise criminal acts? Laura’s discussion would have benefited from drilling deeper here.
I was very pleased by her recommendations concerning enhancing the enforcement of the Military Extraterritorial Jurisdiction Act (MEJA) by establishing a DoJ entity specifically tasked with investigating and prosecuting MEJA cases. Let’s face it, these cases have no natural constituency among the notoriously parochial U.S. Attorneys unless they are generating a lot of press. In most cases, no U.S. Attorney wants the responsibility, trouble, or expense of a MEJA prosecution with its remote witnesses and evidence, expensive travel headaches, and translation difficulties. As a guy who, with the strong support of my then-boss, unsuccessfully proposed a plan to deploy collateral damage/war crimes/friendly fire investigation teams with the coalition maneuver forces in the 2003 Iraq invasion, I find her concern about the importance of investigative capacity on the ground to be absolutely spot on.
