Unaccountable: The Current State of Private Military and Security Companies
2012; Taylor & Francis; Volume: 31; Issue: 3 Linguagem: Inglês
10.1080/0731129x.2012.740907
ISSN1937-5948
Autores Tópico(s)Defense, Military, and Policy Studies
ResumoAbstract The current accountability system for private military and security contractors (PMSCs) is woefully inadequate, and mere enhancements in oversight cannot hope to remedy that failing. I contend that once we recognize the kind of accountability required of PMSCs, we will realize that radical changes in the foundational relationship between PMSCs and the state are required. More specifically, in order to be appropriately accountable, members of PMSCs must become a part of or, at the very least, directly responsible to the legitimate authoritative military or police structures, and there must be a clear and precise delineation of responsibility among public officials for holding individual members of PMSCs criminally liable. Keywords: private military and security contractors Jus in bello accountabilitydivergent interests Notes 1. Marcus Hedahl, "Blood and Blackwaters: A Call to Arms for the Profession of Arms," Journal of Military Ethics 8, no. 1 (2009): 33. 2. Shawn Engbrecht, America's Covert Warriors: Inside the World of Private Military Contractors (Washington, DC: Potomac Books, 2011), 197. 3. Shawn Engbrecht, America's Covert Warriors: Inside the World of Private Military Contractors (Washington, DC: Potomac Books, 2011), 215–18. 4. Quoted in Allison Stanger, One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy (New Haven: Yale University Press, 1999), 28. 5. Quoted in Allison Stanger, One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy (New Haven: Yale University Press, 1999), 90. 6. Quoted in Allison Stanger, One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy (New Haven: Yale University Press, 1999), 90. 7. P. W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry, updated ed. (Ithaca: Cornell University Press, 2008), 151–52. 8. P. W. Singer, "Can't Win with 'Em, Can't Go to War without 'Em: Private Military Contractors and Counterinsurgency," Brookings Institute, Foreign Policy Paper Ser. #4 (September 2007), 6. 9. P. W. Singer, "Can't Win with 'Em, Can't Go to War without 'Em: Private Military Contractors and Counterinsurgency," Brookings Institute, Foreign Policy Paper Ser. #4 (September 2007), 6. Originally from Steve Fainaru, "Where Military Rules Don't Apply," Washington Post, September 20, 2007. 10. Commission on Wartime Contracting in Iraq and Afghanistan, Final Report to Congress, Transforming Wartime Contracting: Controlling Costs, Reducing Risks (August 31, 2011), 5. 11. Singer, "Can't Win with 'Em, Can't Go to War without 'Em," 11. 12. Engbrecht, America's Covert Warriors, 91. 13. Engbrecht, America's Covert Warriors, 92. 14. Singer, "Can't Win with 'Em, Can't Go to War without 'Em," 13. 15. Renae Merle, "Government Short of Contracting Officers: Officials Struggle to Keep Pace with Rapidly Increasing Defense Spending," Washington Post, July 5, 2007. I should note as well that I witnessed this change first-hand, starting my government acquisition career as one of 10 government personnel dedicated to a 100-million-dollar contract and ending it as one of two government personnel dedicated to a billion-dollar contract. 16. Commission on Wartime Contracting in Iraq and Afghanistan, Transforming Wartime Contracting, 117. 17. Commission on Wartime Contracting in Iraq and Afghanistan, Transforming Wartime Contracting, 7. 18. Commission on Wartime Contracting in Iraq and Afghanistan, Transforming Wartime Contracting, 7. 19. Commission on Wartime Contracting in Iraq and Afghanistan, Transforming Wartime Contracting., 6–8. 20. Stanger, One Nation Under Contract, 28. 21. R. A. Duff, "Answering for Crime," Proceedings of the Aristotelian Society 106 (2006): 87–113. 22. Discussions with Kristine Huskey and Benjamin Perrin were extremely helpful on this point. I should note, as well, that this point both supports and is supported by Perrin's argument for the importance of criminal liability, also in this issue. 23. If an agent has a duty to ϕ, one might wonder what difference it would make if she were accountable to A or to B. The short answer is that in standard cases the one to whom one is accountable has the Hohfeldian power to either waive or enforce compensation for violated duties. For more discussion on this point, see Wesley N. Hohfeld, Fundamental Legal Conceptions, as Applied in Judicial Reasoning, ed. W. W. Cook (New Haven: Yale University Press, 1919); H. L. A. Hart, "Legal Rights," Essays on Bentham (Oxford: Clarendon Press, 1982); and Gopal Sreenivasan, "Duties and Their Direction," Ethics 120, no. 3 (2010): 465–94. 24. Seana Valentine Shiffrin, "Promising, Intimate Relationships, and Conventionalism," Philosophical Review 117, no. 4 (2008): 486–508. 25. Engbrecht, America's Covert Warriors, 110–12. 26. For more discussion, see P. F. Strawson, "Freedom and Resentment," Proceedings of the British Academy 48 (1962): 1–25; R. Jay Wallace, Responsibility and the Moral Sentiments (Cambridge, MA: Harvard University Press, 1994); Gary Watson, "Two Faces of Responsibility," Philosophical Topics 24 (1996): 227–48; and Stephen Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability (Cambridge, MA: Harvard University Press, 2006). 27. See, for example, Richard Brandt, "Blameworthiness and Obligation," in Essays in Moral Philosophy, ed. A. I. Meldon (Seattle: University of Washington Press, 1958). 28. I should be explicit from the start that the numbers presented here are for all contractors in Iraq, not only members of PMSCs. However, given the fact that PMSCs are a significant subset of that larger group (likely 10–20%), and given the staggering number of contractors in Iraq, the case against the larger set applies to the subset as well. 29. Numbers are based on data from 2008, using Michael Hurst's estimate of 180,000 contractors working in Iraq; and city-data.com's data on crime and population in Westport for the same year. For specifics, see Michael Hurst, "After Blackwater: A Mission-Focused Jurisdictional Regime for Private Military Contractors During Contingency Operations," George Washington Law Review 76, no. 5 (2008): 1310; "Westport, Connecticut," city-data.com, http://www.city-data.com/city/Westport-Connecticut.html (accessed January 12, 2012). Singer's original analogy can be found in Corporate Warriors, 251. 30. Numbers are based on data from 2008, comparing Hurst's estimate of 180,000 for number of contractors in Iraq against an active-duty army of 520,000, and applying that ratio against the number of army courts-martial in 2008. For specific figures, see Hurst (2008): 1310; "U.S. Army Personnel Tried in General, Special, and Summary Courts-martial, and Discharges Approved, by Conviction Status, United States, Fiscal Years 1997–2010," Sourcebook on Criminal Justice Statistics, http://www.albany.edu/sourcebook/pdf/t5802010.pdf (accessed January 12, 2012). 31. Unfortunately, one great demonstration of the near total lack of oversight lies in the fact that there is no good aggregate data regarding such questions. Although it would be false to say there were no such prosecutions, it is no stretch to claim that they are few and far between. 32. Singer makes a similar point. See Singer, Corporate Warriors, 251. 33. The cases have been well considered. Abu Ghraib: 100% of the translators and 50% of the interrogators at Abu Ghraib prison were private contractors, as documented in Singer, "Can't Win with 'Em, Can't Go To War without 'Em," 7. The U.S. Army concluded that contractors were involved in 36% of the proven abuse incidents at Abu Ghraib and that contractors were responsible for the most serious abuses. The Fay-Jones report identified six particular PMSC employees as being culpable in the abuses, as documented in Major General George Fay and Lieutenant General Anthony Jones, "Investigation of Intelligence Activities at Abu Ghraib," U.S. Army Official Report (2004). Not one of the private contractors has been charged, prosecuted, or even punished, as documented in Rebecca DeWinter-Schmitt, "Six Years on Abu Ghraib Victims Still Fighting for Justice," Amnesty International USA Circular (April 29, 2009). In 1999, several DynCorps employees were implicated in buying and keeping women and girls as sexual slaves, some as young as 12. One site supervisor videotaped himself raping two young women. Yet, as documented in Singer, none of the individuals was prosecuted: Singer, Corporate Warriors, 222. Finally, DynCorps, far from being held collectively accountable, was awarded even larger contracts in the years that followed, as documented in Corporate Warriors, 13–14, 147. 34. MEJA, however, is tragically limited in its scope. The Department of Justice can bring charges against an individual only when it can prove that the defendant's employment "relates to supporting the mission of the Department of Defense overseas." Lanny Breuer, Statement by Assistant Attorney General Lanny A. Breuer of the Criminal Division Before the Senate Judiciary Committee (Washington, DC, May 25, 2011), available at http://www.justice.gov/criminal/pr/testimony/2011/crm-testimony-110525.html. Whether any particular defendant falls within the scope of MEJA, therefore, depends upon highly specific facts and circumstances relating to his or her employment. In the words of the Department of Justice itself, "Cases that would otherwise be straightforward can turn into complex investigations focusing not just on the underlying criminal conduct, but also on the scope of the defendant's employment, his or her specific work duties, and other jurisdiction-related facts." Breuer, Statement by Assistant Attorney General. 35. David Hammond, "The First Prosecution of a Contractor Under the UCMJ: Lessons for Service Contractors," Professional Services Council (Fall 2008): 33. 36. Breuer, Statement by Assistant Attorney General. 37. Hammond, "The First Prosecution of a Contractor Under the UCMJ," 33–34. 38. See, for example, Breuer, Statement by Assistant Attorney General. 39. Doug Brooks and Hanna Streng, "The Stability Operations Industry: The Shared Responsibility of Compliance and Ethics," in this issue, section on Terminology. 40. Personal interview with Captain Kevin Schieman, U.S. Army, November 17, 2011. 41. Quoted in Singer, "Can't Win with 'Em, Can't Go to War without 'Em," 7; originally in Nathan Hodge, "Revised U.S. Law Spotlights Role of Contractors on Battlefield," Jane's Defence Weekly, January 10, 2007. 42. Engbrecht, America's Covert Warriors, 209–11. 43. Engbrecht, America's Covert Warriors, 19. 44. Engbrecht, America's Covert Warriors, 211. 45. See, for example, Engbrecht, America's Covert Warriors, 212–14. 46. See, for example, Singer, Corporate Warriors, 256–58; and Katherin Chapman, "The Untouchables: Private Military Contractors' Criminal Accountability under the UCMJ" Vanderbilt Law Review 63, no. 4 (2010): 1047–80. 47. James Risen, "Ex-Blackwater Guards Face Renewed Charges," New York Times, April 22, 2011; Eugene Robinson, "A Whitewash for Blackwater?" Washington Post, December 9, 2008. 48. Singer, "Can't Win with 'Em, Can't Go to War without 'Em," 7. 49. Fainaru, "Where Military Rules Don't Apply." 50. Mark Mazzetti and Emily B. Hager, "Secret Desert Force Set Up by Blackwater's Founder," New York Times, May 14, 2011 (correction to article June 17, 2011). 51. See Andrew Alexandra's contribution to this volume for these types of considerations. 52. These concerns are exacerbated by the fact that the army is intentionally staffed with non-Muslims, precisely because they may be used to quell local protests. 53. Members of PMSCs are covered legally for such injuries under the Defense Base Act. As is the case with the question of whether our service men and women receive the care that is appropriately due to them, the question of our accountability cannot be settled by pointing out the fact that individuals are legally entitled to such care. The likelihood that those so entitled will actually receive such care, as well the machinations required to gain such care, are equally important considerations. By these more complex standards, our care for our veterans is often lacking but our care for members of PMSCs is non-existent. Thanks to Doug Brooks for helping me see the need to clarify the precise location of this issue. 54. There are also concerns about whether we are appropriately accountable to members of PMSCs in an operational setting: perhaps when members of PMSCs are caught in isolation scenarios, we are less likely to meet our duties to them. Although I cannot say with certainty that we are failing members of PMSCs in this way, three things make the possibility more likely. First, members of PMSCs are not legal combatants under the Geneva Conventions. Second, since they are not integrated into the local command structure, search and rescue attempts may in some cases be more difficult. Third, because they are not integrated, there is typically not the same "all hands on deck" response by members of the military to these scenarios. 55. Engbrecht, America's Covert Warriors, 215–18. 56. "Federal Funded Research and Development Centers," Defense Acquisition University's Online Acquisition Encyclopedia, https://acc.dau.mil/CommunityBrowser.aspx?id=434942 (accessed January 12, 2012). 57. "Federal Funded Research and Development Centers," Defense Acquisition University's Online Acquisition Encyclopedia, https://acc.dau.mil/CommunityBrowser.aspx?id=434942 (accessed January 12, 2012) 58. "Federal Funded Research and Development Centers," Defense Acquisition University's Online Acquisition Encyclopedia, https://acc.dau.mil/CommunityBrowser.aspx?id=434942 (accessed January 12, 2012) Additional informationNotes on contributorsMarcus Hedahl Marcus Hedahl was a major in the U.S. Air Force. He served as an assistant professor of philosophy and ethics at the U.S. Air Force Academy and as a program manager for the National Reconnaissance Office. He is completing his PhD in philosophy from Georgetown University
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