War for Hire

Mark Hemingway has a fascinating piece in the Weekly Standard on Blackwater, the nation's largest don't-call-us-mercenaries security firm.

I wasn't really sure where I stood on the privatization of much of the military before I read the article, and I'm not where I stand after having read it. It is very interesting, though, and it's pretty clear there's a major transition going on. Consider this graph:

In the first Gulf war, the ratio of private contractors to military personnel was one to sixty. This time it's approaching one to one. The Washington Post last week reported that the Pentagon counts about 100,000 contractors in Iraq. Private contractors are being used to supply everything from pizzas to porta-potties; still the decidedly larger ratio is no doubt the result of the 20,000 or so serving in a quasi-military role--almost three times the number of British military forces currently in Iraq.

What to make of this? On the one hand, I suppose that if we're going to be getting our war on, the private sector's going to do lots of things better than the military bureaucracy does. On the other, even the most ardent free marketeer in me is revolted at the thought of attaching profit to war. I can't see many net positives in the fact that there's a growing industry that thrives not just on government contracts, but that's especially profitable when we're warring with another country.

Comments

Jennifer | December 19, 2006, 11:46pm | #

There's another problem, too: I recall reading that the private contractors are basically "above the law" in the sense that they're in limbo: military law doesn't apply to them, Iraqi law doesn't apply to them, and US law doesn't apply in Iraq.

the most ardent free marketeer in me is revolted

Uh--who are you? You forgot to put your name on the post.

Jennifer | December 19, 2006, 11:46pm | #

Never mind--the name was added even as I typed. Hi there, Mr. Balko.

jb | December 19, 2006, 11:53pm | #

War, like fire departments, is one thing that's better done by altruistically-motivated, tax-paid people. Mercs are more expensive and more risk-averse than volunteer soldiers--the incentives just run the wrong way.

Lurker Kurt | December 20, 2006, 12:05am | #

What do you guys think of establishing something like the French Foreign Legion with one of the benefits of an honorable term of service being U.S. citizenship?

The troops in the FFL are technically mercenaries since they are non-french citizens fighting under a flag not their own for money.

Forgive me if this is a threadjack. :-)

El | December 20, 2006, 12:10am | #

I'm more worried by the pizzas. When an army stops eating frumentum and starts eating pizza, the end is near.

kebko | December 20, 2006, 12:13am | #

Maybe this is a pro, maybe a con. But, it seems to me that the private contractors make war more expensive & peace less expensive. Because soldiers make their military contracts on what are favorable terms in peacetime, but when war comes, they are obligated to fight on similar terms. Laborers doing the same work aren't going to step into a war zone for less than 6 figures. Although, I don't know that political discourse is rational enough to account for that in deciding when to go to war. After all, this one was going to be over in 6 months for $1 billion or something.

Pete Guither | December 20, 2006, 12:16am | #

The problem is that the private contractors have none of the market accountability of the normal private sector. When government functions are privatized under government authority and monopoly, the private activity tends to retain all the incompetence and corruption of government, often with even less oversight.

El | December 20, 2006, 12:37am | #

Laborers doing the same work aren't going to step into a war zone for less than 6 figures.

Ah, but they do. Many, many of them are from southeast asia and paid salaries much, much lower than six figures.

name | December 20, 2006, 1:20am | #

A friend of mine was considering going to Iraq as a mercenary. IIRC, the pay offered was in the low 7 figures for an 18 month contract, with the stipulation that most of the money couldn't leave Iraq for a year or so.

Godfrey | December 20, 2006, 1:51am | #

Excellent point, Pete. It's instructive to note the gap between privatization and an actual free market when the government is involved. I think I'd be okay with the support roles going to private contractors but the fighting should be done by our military.

As for the notion of profiting from a war, Radley, I suggest you put Why We Fight in your Netflix queue. There's less left-wing pap to sift through than other documentaries of its ilk and it puts the war/profit thing into perspective.

peachy | December 20, 2006, 2:14am | #

The mercenary trade is the world's second oldest profession; what we tend to think of as the 'natural' way of ordering a military, with its emphasis on national loyalty and patriotism, only became the standard in the nineteenth century. The model that had prevailed since then - of massive armies clashing in enormous conventional wars a outrance - seems to have passed; perhaps the new model (which is more likely an old model in a different guise) is more amenable to private contractors. The rules are different, but war too is a labour market.

James | December 20, 2006, 3:07am | #

Pete nails it. The insurgents are fighting something much closer to a free-market war: multiple groups buying weapons, expertise, and intelligence. Think Lebanon in the 1980's or France during the Hundred Years' War and then ask yourself how hard it is to rein these guys in-or their employers, who no longer have to pony up blood, only treasure.

I am reminded, actually, of the Star Wars movies. One side fought with robots. The other side fought with clones. Neither really had to convince their populations the war was worth sacrificing their own lives. War fought with mercenaries becomes too easy to start and too hard to stop.

At one time, such private armies were the norm, for the excellent reason that the ruling classes did not wish to give military training or experience to their subjects. The rising nation-states soon learned that it was easier to manipulate the public than try to control mercenaries. Frankly, I don't think a return to mercenary armies is a positive development for our civilization.

Mark Denovich | December 20, 2006, 4:44am | #

What is particularly galling, is that you get the feeling that the mercenaries (providing pizza & porta-potties) are being paid 6+ figures and are there of their own free will. However, the guys routinely in harms way are forced to be there for a pittance.

Caine | December 20, 2006, 5:33am | #

What is particularly galling, is that you get the feeling that the mercenaries (providing pizza & porta-potties) are being paid 6+ figures and are there of their own free will. However, the guys routinely in harms way are forced to be there for a pittance.

Not really, as that's where they get the training they'll turn around and resell later. The fallacy of the private army is that the training is done by the public army. It's primarily a dodge around 'colors' of money, which allows the govt to have X more feet on the ground without having to admit to deploying more troops.

I'd be more concerned, myself, about the fallout with all these professional merc's out of work after the fact. Out of work people who can't find a job tend to create their own at times.

Guy Montag | December 20, 2006, 6:32am | #

So, from reading this thread, if I go to the Green Zone as a database manager, with the Defense Contracting firm I am employed by, I will be a mercenary?

Does the fact that I am also a Reserve Officer make me a 'stealth soldier' too?

Do I get counted as two soldiers by Reason, TWS, TNR, The Nation, The Washington Post, NYT and The Daily Worker or would I be one soldier and one mercenary?

Are the contractors at bases in the US mercenaries too? How about all of that space leased by the military. Are those 'stealth bases'? Are the landlords mercenaries?

Sounds like many of you guys are trying to expand a definition in an identical manner that our friends on the Left extend the term 'slavery' to any situation that they don't like.

BTW, still hunting for an Executive Outcomes t-shirt if anybody can find a source. My searches have resulted in nothing.

ajay | December 20, 2006, 6:42am | #

"I can't see many net positives in the fact that there's a growing industry that thrives not just on government contracts, but that's especially profitable when we're warring with another country."

This really isn't news. Names like "Boeing" and "General Dynamics" may be familiar. Not sure there's much of a different between the manufacturing and service sectors, at least from that point of view.

Andrew Ian Dodge | December 20, 2006, 7:33am | #

What is wrong with mercenaries making money from war? I see nothing wrong with those private firms being in Iraq.

BladeDoc | December 20, 2006, 7:47am | #

I'm pretty bummed. I kinda figured that free market armies are just about the sine qua non of a libertarian utopia a la "Snow Crash" and others and no-one wants to defend them?
BTW go to the Blackwater web site and see what kind of training they offer. If your into that sort of thing it's paramilitary heaven (tactical combat courses, driving (tanks even), rappelling, parachute combat drops, etc.).

R C Dean | December 20, 2006, 8:00am | #

Just curious, other than the state sponsorship, what's the difference between a "free market"/mercenary fighting force and a volunteer army?

Aren't the members of both volunteers? Aren't they both being paid to fight? And what do any of us know about their interior motivations for joining ("altruism" v. "greed")?

Bryan | December 20, 2006, 8:23am | #

Another problem is that the soldiers leave in droves to get the big bucks in the private sector, and there has been a real brain-drain in the field, especially the Special Forces. We spend a lot of time and money on their training and it hurts our operational effectiveness when they decline to re-up.

gaijin | December 20, 2006, 8:29am | #

RC Dean has it right...

Since when did 'profit' become so narrowly defined as financial...isn;t one's self-interest a 'profit'? Isn;t 'safety' a profit? Revenge even? I think we best step away from the implicit notion that profiting from war is finanically defined and therefore somehow seedy and immoral...I think it might be a better way to avoid war if we more rigourously analyzed just how we would profit from war before we start another one...

ChrisO | December 20, 2006, 8:36am | #

At one time, such private armies were the norm, for the excellent reason that the ruling classes did not wish to give military training or experience to their subjects.

That, and the fact that most European principalities did not have the resources to maintain large standing armies. Princes had very little cash-on-hand to pay soldiers, and populations could barely feed themselves, let alone large armies of idle soldiers. Most of the medieval and early-modern mercenary armies were "paid" by allowing them to live off of occupied land and to take whatever they could sack.

Given the expense of maintaining a modern military, are we headed back in that direction? Of course, there isn't much booty to be gained in occupying useless shitholes like Iraq, except for the oil, of course, and we haven't seized that to pay Blackwater folks.

By the way, Blackwater Park is the best album by Opeth, and I won't hear any argument on the subject.

TCR | December 20, 2006, 8:47am | #

What, an entire thread about mercenaries and still no A-Team reference? You've gotta be kidding me.

TCR | December 20, 2006, 8:49am | #

If you have a problem, if no one else can help, and if you can find them, maybe you can hire...Blackwater.

Russ R | December 20, 2006, 8:55am | #

Maybe this is what the Founders had in mind when they wrote Article 1, Section 8 of the Constitution:

"The Congress shall have Power ... To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;"

Kind of rules out a standing army, and implies a preference for short-term "armies for hire".

TCR | December 20, 2006, 9:04am | #

Seriously though, I don't see the problem. They're volunteers, fighting for pay, with good training. The only difference is who is signing the checks.

War, like fire departments, is one thing that's better done by altruistically-motivated, tax-paid people.

Not necessarily. We have all kinds of private ambulance services that do just fine. And as far as "altruism" goes...feh. Despite the jingoistic B.S. you hear all the time about how much soldiers care about our freedoms and all the rest, I suspect that most people join the army because they'd like to kill people and blow things up. And if they don't feel that way when they enlist, they damn sure do when they get out of basic.

That and free college.

TCR | December 20, 2006, 9:08am | #

And by the way, if I was the type of person who wanted to shoot people outside of video games, and I had a choice between working for Uncle Sam for a pittance or for someone who's going to pay me good money for putting my life on the line...That's a major "Well Duh" right there.

thoreau | December 20, 2006, 9:17am | #

R C Dean does raise a good point about the fact that there isn't a lot of difference between volunteering to fight on the public payroll and volunteering to fight on the payroll of a firm that contracts with the feds.

I have no doubt that the vast majority of the guys working for those contractors are decent, upstanding American patriots who simply want to serve their country but get somewhat better pay while doing it. And, really, who can blame them?

The thing that disturbs me is not the guys doing the fighting but rather the institutions being built. When you have "private" firms that profit from war, well, seems like somebody has an incentive to lobby Congress for more wars. And while most of the other defense contractors can make money even without a war (just keep buying those shiny planes and park them on a base), the contractors who supply labor only make significant money if there's a war.

Also, as has been observed, government contracting sometimes gives you twice as many layers of management (the public officials overseeing it and the managers at the "private" firm), all taking their cut, without any real gains in efficiency.

Finally, while the vast majority of the contractors working for those security firms are patriotic Americans who will find more peaceful jobs when the war ends, I kind of doubt that the leadership of those firms will just fold up shop and go home. They'll find something to do, they'll recruit (and train) somebody to do it, and they might not show much discretion in their decisions. And if they make a mess? Well, maybe Uncle Sam will discover a new hotspot in need of cleanup. No worries, we already have contractors with plenty of expertise in the area, and they're ready to help out...

thoreau | December 20, 2006, 9:21am | #

Speaking of contractors with unsavory management, check out this story.

The guys on the ground in the story did the right thing, but the management was thoroughly rotten.

TCR | December 20, 2006, 9:22am | #

When you have "private" firms that profit from war, well, seems like somebody has an incentive to lobby Congress for more wars.

Maybe, maybe not. There's always a war going on somewhere. The thing about mercenaries is that they don't have to fight for the U.S. all the time. For example, why couldn't a mercenary team go and clean up Darfur? The U.S. sure doesn't want anything to do with it, but I'll bet there's somebody out there willing to pony up the dough. Maybe George Clooney?

thoreau | December 20, 2006, 9:24am | #

The thing about mercenaries is that they don't have to fight for the U.S. all the time.

True, but Uncle Sam has enough cash to pay quite handsomely, and enough resources and hardware to make operations alongside US forces a safer gambit.

Still, if George Clooney's check clears, I'm sure somebody would be willing to go to Darfur.

TCR | December 20, 2006, 9:32am | #

True, but Uncle Sam has enough cash to pay quite handsomely, and enough resources and hardware to make operations alongside US forces a safer gambit.

Point taken. I just wonder whether it would really work that way. There are a lot of companies now that "profit from war" like Northrop-Grumman for example. How often do they "lobby Congress for more wars"? I don't know that they do. For that matter, did Blackwater lobby Congress to vote for the Iraq war? I don't know if they did or not. That would be an interesting piece of information.

Bryan | December 20, 2006, 9:33am | #

I also have a problem with the US citizen paying for an army that might eventually be used against it. If Blackwater can work for the US one day, learn how we operate, learn the intelligence tricks and then later be hired by China or India or Australia, that information could be used against us.

Don | December 20, 2006, 9:45am | #

Read The Prince, if you haven't already. Then read the Discourses on Livy. Machiavelli spells out clearly and succinctly why relying on mercenary armies is a bad idea. It was certainly a bad idea for his Italy, which was, during his lifetime, the stomping grounds for the Imperial and French armies (who augmented their own forces with mercs, often to their dismay)

The problem with mercenary forces is not merely that it's morally icky that someone is profiting off war, it's that the mercenary army's profit-interest and the states strategic interest only coincide to a certain point. The point at which they diverge tends to be the point in which the nation needs the army most of all. When risk to life and limb start to outweigh montary reward, mercenary forces become recalcitrant, renegotiating contracts during war or quitting the battlefield altogether while allowing strategic opportunities to slip by.

This debate was satisfactorily resolved five hundred years ago.

Sam_H | December 20, 2006, 9:46am | #

The vast majority of the 100k "contrators" are very low skilled third nation nationals and Iraqis. We hire them to do things like put up tents and cook for $10 a day. They are hardly mercinaries.

Lortl | December 20, 2006, 9:46am | #

On the one hand, I suppose that if we're going to be getting our war on, the private sector's going to do lots of things better than the military bureaucracy does.

Hmm...would that be losing billions of dollars into thin air, or serving sewer water to our troops? Or selling arms to Iraq in the 90's?

Lortl | December 20, 2006, 9:47am | #

There are a lot of companies now that "profit from war" like Northrop-Grumman for example. How often do they "lobby Congress for more wars"?

Well, our Vice President is a former CEO of one of our biggest war profiteering companies...those dots are there for the connecting.

Adam | December 20, 2006, 9:56am | #

"There's another problem, too: I recall reading that the private contractors are basically "above the law" in the sense that they're in limbo: military law doesn't apply to them, Iraqi law doesn't apply to them, and US law doesn't apply in Iraq."

Not true anymore. The 2006 Defense Authorization Act changed the UCMJ. In the persons subject, it used to read "In time of war, persons serving with or accompanying an armed force in the field." This was changed to "In time of war or a contingency operation" which is military speak for undeclared war like OIF and OEF. Interestingly, this was inserted with no comment or legislative history and has not been used yet. Also, there is a statute from about 2000 that gives civilian federal courts extraterratorial jurisdiction over felonies in certain cases. That statute has been used against some contractors.

I'm an Army JAG and I've dealt with some of these private contractors. First, the huge majority of them are doing supply and support jobs- not anything like combat. Second, the ones who are a mostly bodyguards and do convoy security. They aren't allowed to do offensive ops. Obviously, defending a convoy can turn into an offensive operation if it's attacked, but there definitely a difference between this and conducting a patrol.

Also, some people have said that they don't do a better job that the government bureaucracy. Dead wrong. These contractors provide amazing levels of support- much better than anything we can get through regular military channels.

thoreau | December 20, 2006, 10:01am | #

I doubt that any war profiteer would come out and openly say "Help us make more money! Declare war!"

They'd probably just lobby for a generate policy of "We must be strong, we must recognize our vital interests around the globe, and we must be willing to intervene to secure those interests." Which actually doesn't sound so bad on the surface, but if you interpret it expansively then it could lead to all sorts of problems. (Similar to the way that "regulating interstate commerce" doesn't sound so bad, but an expansive reading gets us into all sorts of problems.)

David | December 20, 2006, 10:05am | #

I'm not sure what the terms of a Blackwater contract are, but some advantages for the mercenaries may be that they can quit when they want to, or demand a better salary based on the mission.

Sam Franklin | December 20, 2006, 10:07am | #

The use of mercenaries helps nations prosecute wars a lot more when the cause is unjust than when the cause of the war is just.

For that reason, the expanding use of mercenaries is a bad thing.

Another bad thing about mercenaries is that they are an expensive government program that should be cut in the interest of cutting expensive government programs that are unneccessary.

Shadow Hunter | December 20, 2006, 10:14am | #

Just a comment from Machiavelli

I wish to demonstrate further the infelicity of these arms. The
mercenary captains are either capable men or they are not; if they
are, you cannot trust them, because they always aspire to their own
greatness, either by oppressing you, who are their master, or others
contrary to your intentions; but if the captain is not skilful, you
are ruined in the usual way.

MoS | December 20, 2006, 10:23am | #

While I understand they mostly provide defensive, not offensive, security services the contractors are still carrying arms, on what looks like a battlefield, without a uniform or chain of command. Does that make them something like "unlawful combatants"? Do they have Geneva Convention rights?

Lurker Kurt | December 20, 2006, 10:41am | #

That's a major "Well Duh" right there.

Firstly, I served under Major Wellduh in the 82nd Airborne in the late 80s.



Thank you. Please tip your waitresses. I will be hear all week.

Secondly, the contractors are "openly" carrying arms. They are not hiding the fact that they are armed.

The uniform I have seen on them is a dark grey/black, swat team looking bullet proof vest.

They do have a chain of command. A manager on the ground in Iraq who answers to his bosses in the U.S. who answer to whoever signed their contract.

So yes, they do have GC rights.

Sam Franklin | December 20, 2006, 10:49am | #

Lurker Kurt (or anybody else who might know),

Do the contractors generally consent (prospectively) to "criminal" (or whatever you want to call it) jurisdiction of US military tribunals as part of their mercenary contract.

(the issue came up recently at Inactivist but nobody there knew.)

TCR | December 20, 2006, 11:04am | #

Well, our Vice President is a former CEO of one of our biggest war profiteering companies...those dots are there for the connecting.

The key word in my mind is former. I've heard this conspiracy theory before, but nobody's proven to my satisfaction that Cheney pushed for the war because of Halliburton. Not that I'm a huge fan of Cheney, but that's a heavy charge to throw around with no evidence.

I doubt that any war profiteer would come out and openly say "Help us make more money! Declare war!"

They'd probably just lobby for a generate policy of "We must be strong, we must recognize our

Sure they might. But do they in fact do so? That's my (sincere) question. Does anybody know if Northrop-Grumman, Lockheed-Martin, Smith & Wesson or even Halliburton actually lobbied Congress in such a way? More likely they just said, "Hey buy our jets!"

JParker | December 20, 2006, 11:23am | #

Perversely, Big companies like Boeing and Northrup would never want a war. Wars are places were big expensive systems that you sell during peacetime break. If anyone starts talking about we don't need that just remind them of what the other guys just bought from you. Or play the America has always been unprepared for war and had to play catch up while American soldiers died.
As far as I can tell our record is still perfect on that one.

Tom | December 20, 2006, 11:34am | #

Most of the folks commenting here seem to be making moral statements about the concept of using "mercenary forces" without taking into consideration the reasons why we are using private contractors right now.

First, the DoD is about 60% the size it was prior to 1991. The drawdown was accomplished by eliminating more support and logistics personnel than combat arms personnel. This resulted in a DoD that had more people to fight with, but was now unable to support all of them in the field at once. The result is that to continually support field operations we need to hire contractors to cook the food, fix the vehicles, transport the gas, etc.

Second, contractors often bring lots of experience and a skill level that is not available within the DoD itself on a scale that we need to support large field operations. Many positions in the intelligence analysis career field are now manned by contractors. Why? Because the DoD doesn't really need them in peacetime and the contractors themsleves wouldn't be interested in doing the work full time anyway. These people work in the private sector as managers and other white collar staff, but we can call upon them as contractors in wartime. Likewise with former Special Operations personnel. These are highly motivated, intelligent and educated people who work in SOF units for a number of years and them move on to excel in other career fields. We canot hold onto them long term in peacetime, but as contractors we can take advantage of their skills in wartime.

Third, most of the professional contractors are well above the average age of DoD personnel (late thirties to mid forties seemed to be the average the last time I was there) and are already beyond the age at which they would be serving in the DoD. They are working in the Middle East because they bring unique skill sets that the DoD really doesn't have the structure to support on a full time basis. (i.e. How many IT systems support personnel do you need in the DoD who have experience with harsh climactic environs during peactime?)

Long term solutions to the use of contractors, such as increasing the size of the DoD substantially, could help reduce the number of contractors to a degree. However, none of this would address the fact that contract personnel often provide better service and frequently have a unique skill set that is not available in the line DoD community.

Adam | December 20, 2006, 11:38am | #

"Do the contractors generally consent (prospectively) to "criminal" (or whatever you want to call it) jurisdiction of US military tribunals as part of their mercenary contract."

I talked about this in my post above. Don't know if there is anything in the contract, but UCMJ (as revised this year) gives court-martial jurisdiction over them (its unclear how this is going to play out though). A statute called MIJA gives US civilian court jurisdiction over them for felonies. (Btw, a military tribunal is a different animal and has no relevance). here.

Sam Franklin | December 20, 2006, 11:47am | #

Adam,

thanks for the info, but I am not interested in whether contractors are subject ultimately subject to military or civilian justice.

Rather, I am curious as to what kind of jurisdiction they typically consent to by contract when they sign up, regardless of how things work out when one gets caught up in some kind of alleged criminal conduct.

Lt. Milo Minderbinder | December 20, 2006, 11:56am | #

Frankly, I'd like to see the government get out of war altogether and leave the whole field to private industry.

Adam | December 20, 2006, 11:58am | #

Sam,
I can at least take a stab at your question. I doubt they do for the following reasons.
1) The contracts are signed by a corporation. The corporation then hires employees. I doubt a court looking at a contract would think that this consent by an employer to criminal jurisdiction over its employees would be good enough. In fact, I don't think you can even consent to criminal jurisdiction by contract. Usually, a court has to find a statute that gives it jurisdiction- these usually are based on the place where the crime was committed, the status accused is, or the status of the victim. I know of no statute that gives a court criminal jurisdiction based on contractual consent.
2) I'm an Army JAG and have never heard of a consent to criminal jurisdiction being in a contract (at least as a standard clause). I probably would have if it existed.
In the end though, it doesn't matter what they do or don't consent to- the law makes them subject to jurisdiction whether they want it or not.

Adam | December 20, 2006, 12:00pm | #

Oh, and that's very different than civil jurisdiction where consent is a definitely a basis.

MoS | December 20, 2006, 12:13pm | #

Thanks for the clarification, Lurker Kurt. While checking around Wikipedia, I also found this:

Under Article 47 of Protocol I ( Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war."
(from http://en.wikipedia.org/wiki/Unlawful_combatant#Mercenaries)

Would that apply to the contractors here? Or are they more like accompanying civilans, who can be POW's?

Adam | December 20, 2006, 12:26pm | #

MoS,
It might, but-
1) US is not party to the additional protocols
2) The definition is kind of restrictive and would rule out our contractors.
"2. A mercenary is any person who:
...
(b) does, in fact, take a direct part in the hostilities
...
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
...

P Brooks | December 20, 2006, 12:31pm | #

"I think it might be a better way to avoid war if we more rigourously analyzed just how we would profit from war before we start another one..."
-gaijin

I concur. Having listened to as much as I could bear of the Stammering-Idiot-in-Chief's news conference this morning, I am more certain than ever that this should be the case.

Speaking as a capitalist pig, I am in favor of competitive pricing for trained professionals' services in any market.

MoS | December 20, 2006, 12:32pm | #

Then I guess Blackwater (and other firms) are very careful not to either:

1) Use contractors who are citizens of countries which are both (a) party to the additional protocols, and (b) not already involved in the conflict. Or

2) Consult in any country which is a party to the additional protocol, if the US army isn't already there. Could they be dispatched to Darfur (as the article suggested) while retaining POW protections?

On the other hand, I suspect the various enemy forces don't have much respect for the Geneva Convention anyway, so this whole question is kind of stupid.

Sam Franklin | December 20, 2006, 12:35pm | #

Thanks, Adam. Further comments:

. . . I doubt a court looking at a contract would think that this consent by an employer to criminal jurisdiction over its employees would be good enough.

Well, this part of the issue doesn't interest me. I am more interested in what these individuals have consented to, rather than what the government actually makes of their consents. Being a libertarian, contractual consent (and its limitations) is very important to me, regardless of whether the government makes a hash out of the law in this area or not.


In fact, I don't think you can even consent to criminal jurisdiction by contract.

This seems unlibertarian to me. Why should you not be able to sell this right off to the highest bidder?

Usually, a court has to find a statute that gives it jurisdiction- these usually are based on the place where the crime was committed, the status accused is, or the status of the victim.

When I was in law school, in California, the law professor, an incredibly grumpy and acidic man, made a hapless student read the california state jurisdiction statute. The student complied. Professor Stolz, whose health seemed to be failing that semester, asked the student what he thought of the California "long arm" statute. The student (no, it wasn't me) said he did not know what to make of it. At that point, Prof Stolz boomed out in a voice improbably loud for such a frail, obviously-pained man that the statute was "GENIUS!" He then let the class fall silent for a bit, mildly surprised at the outburst before continuing, "I wrote it . . ." Here is the statute Prof Stolz wrote:

[i][b]"A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States."[/i][/b]

I think many jurisdiction statutes are both broader and fuzzier than you think they are. I know that individuals can consent to jurisdiction of civil courts. (as I know see that you have acknowledged) Criminal court jurisdiction would seem to implicate a somewhat different balance of competing jurisprudential values, but I see no reason to assume that one cannot effectively consent to criminal jurisdiction in the form of a contract.

Anyway, whether such a consent is legally operative is still less interesting to me than what these contractors have actually consented to. when one gets in a jam (like the thing they posted at Inactivist yesterday), I need to know how sorry to feel for the contractor. regardless of what the law is, the kinds of jurisdiction that the contractor has explicitly consented to by contract defines the metes and bounds of my personal symopathy (if any). You can probably see why I say this from a libertarian perspective.

I know of no statute that gives a court criminal jurisdiction based on contractual consent.

I no of no statute that excludes contractual consent as a basis of jurisdiction. When the jurisdictional question is controlled by the US Constitution (minimum contacts, trad notions of fair play, etc. etc), then i will say that I know of no case (the actual words of the Constitution aren't much help on the limits of state jurisdiction) that says contractual consent is an insufficient basis for criminal jurisdiction.


2) I'm an Army JAG and have never heard of a consent to criminal jurisdiction being in a contract (at least as a standard clause).

What about the contracts that the actual enlisted military personnel (as opposed to the mercenaries) sign? Has buck private consented to any jurisdiction contractually in his enlistment deal contract. I would have thought that they do, but have no JAG experience.

Sam Franklin | December 20, 2006, 12:39pm | #

I just looked up the standard US military enlistment online. In the contract the miltary person does indeed contractually and explicitly consent to jurisdiction of the military courts.

Why did you put that line in that contract, Adam?

Adam | December 20, 2006, 1:10pm | #

I see where you're coming from wrt consent. But I assume you realize that courts don't see things this way.
- Enlistment contracts have some form language that says things like "I understand the military has certain laws and regulations I have to follow and they are different than civilian ones...I can be tried by court-martial, etc." But this is not the basis of any potential court-martial's jurisdiction. In fact, I think it says that they aren't promising anything and that the laws can be changed at any time.
- All the minimum contacts stuff is civil jurisdiction, not criminal.
- After thinking about this a bit more and doing some surfing, I'll change my mind a bit. 18 USC 3231 is the statute usually used for federal jurisdiction. It says district court have jurisdiction over all offenses against US. Federal criminal statutes then usually have a 'jurisdictional hook' like interstate commerce, or done on federal land, or against a federal officer, etc. Courts usually read into the statute that the offense must be within territory of the US (unless it says otherwise). So a court cannot have jurisdiction unless the hook is satisfied- consent won't satisfy it since an act cannot be against the US unless all the element of the statute are satisfied. You probably don't care about this at all since it has nothing to do with consent.

Adam | December 20, 2006, 1:16pm | #

Sam,
Read it more closely. That's not what it says. It says "Many laws, regulations, and military customs will govern my conduct
and require me to do things a civilian does not have to do. The following statements are not promises or guarantees of any kind. They explain some of the present laws affecting the Armed Forces which I cannot change but which Congress can change at any time."
They probably put it in there to make sure the enlistee knows what he is getting into. That doesn't mean the basis of the court-martial's jurisdiction is contractual. In fact, there are a bunch of people who never sign contracts that are subject to UCMJ.

Sam Franklin | December 20, 2006, 1:33pm | #

Enlistment contracts have some form language that says things like "...I can be tried by court-martial, etc." But this is not the basis of any potential court-martial's jurisdiction.

No, but it looks like consent to me. I am guessing that the contracts private contractors sign have similar (maybe even more rigorous) consents regardless of the operative / non-operative nature of that consent. BTW, I suspect the consent is in there because some of the higher up JAGs think it would help in some legal disputes. I don't buy that the language is totally superfluous.

In the case of a contractor, I think similar language would be attempted to be used to stop a contractor defendant from even arguing that military court jurisdiction was somehow defective (eg, unConstitutional jurisdictional statute, use of military court fails to meet due process when applied to a contractor, etc). the contract language may or may not be sufficient to destroy such these kinds argument of defective jurisdiction, but I think that is why the lawyers for KBR and them probably do in fact put similar language in there. (but I don't know this, I have only seen the enlistment contract, not KBR's).

So a court cannot have jurisdiction unless the hook is satisfied- consent won't satisfy it since an act cannot be against the US unless all the element of the statute are satisfied.

You lost me here. I am not talking about whether a defendant can prospectively plead guilty in a contract. For example, if a defendant court be haled into a federal criminal court on a consent basis, I don't think the consent would mean that the defendant actually admitted doing all the things neccessary (eg, crossing state lines) to be found guilty on the federal charges. At best, the consent would just say that the defendant consents to have the case heard there at the Federal Court.

For example, when a civil party consents to civil jurisdiction that doesn't mean that the plaintiff is excused from proving all elements of the tort just because defendant consented to jurisdiction.

I am wondering whether consent jurisdiction in criminal courts works the same way or a different way.

Sam Franklin | December 20, 2006, 1:34pm | #

That doesn't mean the basis of the court-martial's jurisdiction is contractual. In fact, there are a bunch of people who never sign contracts that are subject to UCMJ.

At least theoretically, it is possible to be subject to jurisdiction both for contractual reasons, as well as for reasons having nothing to do with the contract, at the same time.

El | December 20, 2006, 3:09pm | #

R C Dean does raise a good point about the fact that there isn't a lot of difference between volunteering to fight on the public payroll and volunteering to fight on the payroll of a firm that contracts with the feds.

Until the firm that contracts starts hiring, say, Russian ex-army, or South American paramilitary. Then we end up fighting foreign wars with foreign soldiers, and US civilians have absolutely no interest in the casulaties on _either_ side. As a result, the result our government loses a major check on its capacity to wage war, something that doesn't appeal to me in the least.

Adam | December 20, 2006, 3:16pm | #

Sam,
You're probably right that its in the enlistment contract partly as some legal cover. But I think it's wholly unnecessary. This issue about contractors, criminal jurisdiction, and UCMJ has been a hot issue in the JAG Corps/ military law over the last few years. I'm just hard pressed to believe that I've never heard any mention of criminal jurisdiction clauses being in the contracts if they are actually there. I've never read one of the contracts since I don't work on that stuff. Many of them are classified, but maybe I can get a hold of one and see.

D'oh | December 20, 2006, 3:27pm | #

Thanks for the stimulating discussion. here is the case that got Mona and me discussing these issues in the 1st place:

http://tinyurl.com/y7hojw

TrickyVic | December 20, 2006, 4:24pm | #

"""R C Dean does raise a good point about the fact that there isn't a lot of difference between volunteering to fight on the public payroll and volunteering to fight on the payroll of a firm that contracts with the feds."""

Except for the cost. A private makes, what 10 grand a year these days. (I am guessing, I made about 8 grand back in 1981.) A private contractor makes a couple or several Hundred Thousand dollars a year. The taxpayers pay for it either way. We could have a lot of privates for that one contract guy.

P Brooks | December 20, 2006, 4:56pm | #

"Except for the cost. A private makes, what 10 grand a year these days. (I am guessing, I made about 8 grand back in 1981.) A private contractor makes a couple or several Hundred Thousand dollars a year. The taxpayers pay for it either way. We could have a lot of privates for that one contract guy."

This was my point about competitive wages, above. I don't have the faintest idea what combat pay is in Iraq (for U S service personnel) but if there is a large discrepancy between what U S soldiers and private contractors get paid for similar activities, then the American government needs to pay a "market wage" to keep their valuable human assets from migrating to a higher bidder. [Naturally, non-cash compensation must be factored in...]

agorabum | December 20, 2006, 9:02pm | #

The problem is that it is not economically efficent. Contractors seek profits and rents. Soldiers do as they are told. And constructing ice cream parlors in Iraq, while marginally beneficial to morale, does nothing to secure victory. About three or four low level infantrymen could be hired and equiped for the cost of one contractor.

More importantly, when you give a soldier an order, he has to carry it out, no matter how scary and risky it is. Not the same for a contractor. There have been many cases of contractors refusing to do their jobs because of insurgent attacks. They also need protecting, and are not subject to the UCMJ (uniform code of military justice).

So look at it this way: we could have 300,000 troops and 10,000 contractors doing the things that the US military really can't do, or we could have the situation we are in today.