Book Discussion “Outsourcing War and Peace”: Laura Dickinson responds to Steve Vladeck

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.]

This is the sixth 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.

Steve Vladeck’s post focuses on the interesting question of whether prosecutions of contractor employees abroad under MEJA might sometimes result in indictments for activities that are sufficiently unrelated to the US military mission that they are either unconstitutional or at least unwise.  Steve’s concerns are certainly worth taking seriously (though I confess to thinking that the far bigger problem related to contractors is how little prosecutorial activity there has been to date).  Nevertheless, I’m not sure I agree that the activities described from the Brehm case are so unrelated to the US governmental mission that it would necessarily be problematic to prosecute.  Indeed, as my post from yesterday indicates, one major problem of using private military contractors is that there is an insufficient rule of law culture among employees of these firms.  If that is true, then we might think that it would be beneficial to subject contractor employees to broad US governmental authority while in theater, even for acts that are unrelated to their job duties.  This extension of authority could help cement a psychological tie to the US and help develop a greater culture of compliance with US constitutional and statutory norms of behavior.  In any event, given that contractors work directly for the US Government to carry out fundamental governmental initiatives, I think it is not such a stretch to apply US criminal law to their activities, even if such activities are not directly related to the mission to be performed.