Book Discussion “Outsourcing War and Peace”: Private Security Contractors and Public Accountability

This is the second 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.

One of the many things I like about Professor Dickinson’s book is the broad approach it takes to thinking about accountability. When I ask my law students to engage in problem-solving hypotheticals – i.e. Here’s a problem in the world, you are X individual/organization/state worried about the problem, what should we do about it? – their initial instincts are to look to the courts. Who can we sue? For U.S. trained law students, whose first year of schooling is traditionally devoted entirely to learning the judicial processes of the common law, this is hardly surprising. But Professor Dickinson’s book helps us think more creatively, and demonstrates that accountability, in the sense of deterring undesirable conduct and demonstrating consequences for it when it happens, can be achieved through many tools. Indeed, for a setting as complex as the conduct of private security contractors – who straddle civil and military affairs, public and private interests, foreign and domestic settings – it would be surprising if any one accountability tool was sufficient.

Still, part of the challenge to finding solutions to the accountability gap she identifies in this special setting is, it seems to me, that contractor accountability is part of a larger problem of waning public accountability for national security and military affairs more generally. The problem is not unique to contractors. Take the possibility Professor Dickinson raises (and I suspect will address further) of subjecting civilian contractors to the Uniform Code of Military Justice. The UCMJ is the set of federal statutes establishing penal and disciplinary rules for dealing with misconduct by members of the U.S. military. As Professor Dickinson understands, the application of the military justice system to civilians raises a host of constitutional concerns, in particular the framers’ strong concern that military rule not be permitted to bleed over into civilian life. Beyond that, though, the UCMJ system through which soldiers might be held accountable for exactly the same kinds of conduct that most concern us about contractors is also fraught with problems. As Human Rights First reported back in 2006, efforts to prosecute soldiers responsible for the worst kind of detainee treatment, resulting in the death of detainees in custody, often foundered on just the kind of investigative and evidentiary issues that appear in the contractor setting as well.

More recent is an illuminating study by a serving military lawyer studying the military’s success in prosecuting its own for crimes in Afghanistan under the UCMJ. According to the study, which describes the system as broadly dysfunctional in combat, there were no courts martial in Afghanistan for anything at all until 2004 – three years into the deployment of U.S. forces. Among the study’s many other interesting findings: of the United States’ 200-some posts of one kind or another in Afghanistan (at the time of the study), JAGs could be regularly found at 9 of them. Such findings seem to suggest we are not set up in fundamental ways to ensure accountability of our immediate agents during wartime. Under the circumstances, it is not surprising we are equally unprepared to deal with contractor accountability.

The broad gap in legal accountability seems mirrored in a similar gap – again not limited to contractors – in political accountability for military affairs. Consider the historical trajectory. As I’ve described in more detail in a recent paper, the Constitution’s framers were centrally concerned with the problem of how to keep military operators closely tied to the society it served – a relationship they understood as central to ensuring the military would remain accountable to the civilian political leadership. So they put in place a set of mechanisms they thought would serve this purpose. But the mechanisms that the framers imagined would serve to have long ceased to function. One such mechanism was by personal affiliation – we are the military, and the military is us. But the model of the citizen-soldier gave way in the 19th century to a now well established profession of military officership, able to articulate distinctly military interests and values. The engagement of state militias likewise gave way to national conscription as a means of securing adequate forces in wartime; by 1973 even this practice was abandoned as drafted armies were replaced by an all-volunteer force. Another mechanism was the framers’ decision to give Congress the power to authorize funding for the military – and require that such appropriations be voted on publicly every 2 years. But that, too, has now similarly been weakened. The explosive growth of private contractors Professor Dickinson describes has made it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments.

Professor Dickinson’s work is terrifically important, and I would like to think the solutions she proposes – many of which I strongly support – will be adequate to the task. The broader context, though, makes me fear the gap in contractor accountability is just one symptom of a long-developing weakening of all of our accountability tools for checking the use of American war power. It is one more of the ways in which we have made it easier for growing swaths of the American public to neither feel nor bear the costs of war.