It Wasn’t in My Contract: Security Privatization and Civilian Control

The incident was also investigated by US federal prosecutors. The US Department of Justice filed criminal charges against five of the Blackwater employees in December 2008, but these charges were dismissed in early 2010 on the basis that some of the employees’ statements had been compelled.

While it could be argued that this incident was not a failure of civilian control insofar as the guards claim to have been carrying out their assigned mission of protecting State Department personnel, it is highly unlikely that the State Department’s guidance/contract language indicated that their guards should engage in the kind of behavior that would be clearly detrimental to the State Department’s mission in Iraq and to the image of the United States. Even had State explicitly required disregard of collateral damage, any contract item that is contrary to public policy is void ab initio. Black’s Law Dictionary, 6th edition (St. Paul, MN: West Publishing Co., 1990) defines the ‘‘public policy doctrine’’ as the ‘‘doctrine whereby a court may refuse to enforce contracts that violate law or public policy . . ..’’ Since a U.S. President signed the Geneva Conventions and Protocols pertaining to the use of deadly force against noncombatants, and the Senate ratified the treaties, these treaties are the public law of the United States. No Board of Contract Appeals or Court of the United States would enforce a contract term by which the State Department required a contractor to use deadly force in violation of these treaties. The State Department could not have legally required any contractor to act as the Blackwater employees are alleged to have acted. It remains open to question whose failure this was, but the incident is nonetheless an example of an agent behaving in a way (failure to do appropriate risk assessment) that the principal by law cannot have desired.

Glenn R. Schmitt, ‘‘Amending the Military Extraterritorial Jurisdiction Act of 2000: rushing to close an unforeseen loophole,’’ Army Lawyer (June 2005):41-47, https://www.jagcnet. army.mil/. The Military Extraterritorial Jurisdiction Act (MEJA, Public Law 106-523, November 22, 2000, Amending U.S. Code Title 18) established U.S. federal jurisdiction over offenses committed by ‘‘persons employed by or accompanying the Armed Forces.’’ When Congress realized that MEJA would not cover the offenses at Abu Ghraib in 2004 because they had been committed by CIA rather than DoD contractors, it amended the MEJA to cover contractors and employees of other agencies, to the extent that they were supporting the mission of the DoD (Public Law 108-375 October 28, 2004, Defense Authorization Act for Fiscal Year 2005. See section 1088, also amending U.S. Code Title 18). The 2007 Blackwater scandal involved security personnel contracted by State to protect State officials, thus clearly not falling under the amended MEJA, so the House of Representatives passed the MEJA Expansion and Enforcement Act (HR 2740) to cover contractors working for any department or agency of the United States in or near an area where U.S. forces are conducting contingency operations. A version of this bill was introduced in the Senate, but never got out of committee.

Enrique Bernales Ballesteros , ‘‘Report on the Question of the Use of Mercenaries’’ General Assembly A/52/495 ( Geneva: Office of the UN High Commissioner for Human Rights, 1997), http://daccessdds.un.org/doc/UNDOC/GEN/G97/105/93/PDF/G9710593.pdf?OpenElement; Peter W. Singer , Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY: Cornell University Press, 2003); Gerhard Kümmel , ‘‘Die Privatisierung der Sicherheit: Fluch oder Segen?’’ SOWI Arbeitspapier 137 (Strausberg : Sozialwissenschaftliches Institut der Bundeswehr , 2004).

Singer, Corporate Warriors, 40-41; Kümmel, ‘‘Privatisierung.’’ In reality, the majority of contractors are involved in logistics, not the use of force. Kümmel usefully synthesizes typologies of private security companies (cf. David Shearer, ‘‘Private Armies and Military Intervention,’’ Adelphi Paper 316, London: International Institute for Strategic Studies (February 1998); Kevin A. O’Brien, Private Military Companies: Options for Regulation (Cambridge: RAND Europe, 2002); and Singer, Corporate Warriors). Military Provider Firms provide combat command and implementation functions. Security Provider Firms offer security, guard, and police-type services. Military and Security Consultant Firms offer analytical, advisory, and training services in operations and organization but do not participate in operations. Military/Security Support Firms provide logistical support to armed forces or police.

Singer, Corporate Warriors, chaps. 10, 14.

Deborah D. Avant , The Market for Force: The Consequences of Privatizing Security ( Cambridge: Cambridge University Press, 2005), 253.

In weak, unstable countries with rich natural resources, a firm might benefit from taking over the government (Singer, Corporate Warriors, 157-58.). Although firms are unlikely to coup in developed countries, they will likely still attempt to gain and exercise other kinds of influence over governments.

Avant, Market for Force, 7, 59.

Compare O’Brien , Private Military Companies, and Eugene B. Smith, ‘‘The New Condottieri and US Policy: The Privatization of Conflict and its Implications,’’ Parameters (Winter 02/03), 104-19.

Singer, Corporate Warriors; Avant, Market for Force.

See Singer, Corporate Warriors, viii ff. and Avant Market for Force, 5-6. Avant’s focus was on control over the application of force (see esp. p. 6 and chaps. 1 and 2), which is distinct from my focus on control over agent behavior of all kinds. Hence I do not use her typology of control.

For example, James Burk , ‘‘Theories of Democratic Civil-Military Relations,’’ Armed Forces and Society 29, 1 (2002), 7-29; Andrew Cottey , Timothy Edmunds , and Anthony Forster , ‘‘The Second Generation Problematic: Rethinking Democracy and Civil-Military Relations,’’ Armed Forces and Society 29, 1 (2002), 31-56.

Cottey et al. ‘‘Second Generation,’’ 35.

Burk, ‘‘Theories,’’ 8.

Cottey et al., ‘‘Second Generation,’’ 38-39; cf. Larry Diamond and Marc F. Plattner , eds., Civil-Military Relations and Democracy ( Baltimore: The Johns Hopkins University Press, 1996), xxix.

Samuel E. Finer , The Man on Horseback: The Role of the Military in Politics (London: Pall Mall, 1962/1988), 4, 75-76, chap. 7; Bernard Boëne , ‘‘Western Type Civil-Military Relations Revisited’’ in Military, State, and Society in Israel, eds. Daniel Maman , Eyal ben Ari , and Zeev Rosenhek (London: Transaction Publishers , 2001), 44-45; Peter D. Feaver , Armed Servants: Agency, Oversight, and Civil-Military Relations (Cambridge, MA: Harvard University Press, 2003 ), 10-11.

Richard K. Betts , Soldiers, Statesmen, and Cold War Crises ( New York: Columbia University Press, 1991), 4; Samuel P. Huntington , The Soldier and the State: the Theory and Politics of Civil-Military Relations (Cambridge, MA: the Belknap Press of Harvard University Press, 1957), 20.

For example, Morris Janowitz , The Professional Soldier: a Social and Political Portrait (New York: The Free Press, 1960), 349-50; Finer, Man on Horseback , 86-87; Betts, Soldiers ; Richard H. Kohn , ‘‘The Erosion of Civilian Control of the Military in the United States Today,’’ Naval War College Review, 55 (Summer 2002), 15-16.

Finer, Man on Horseback, 77-78, defines levels of military intervention (‘‘influence,’’ ‘‘blackmail,’’ ‘‘displacement,’’ and ‘‘supplantment’’). He determines an action’s legitimacy by whether the political culture defines the behavior as acceptable (128-29) Although the classification is helpful, Finer’s somewhat tautological suggestion does not solve the problem of how to determine what influence is legitimate.

Michael C. Desch , Civilian Control of the Military: The Changing Security Environment ( Baltimore: Johns Hopkins University Press, 1999), 4-5, 27; Feaver, Armed Servants, 58-68.

Kohn, ‘‘Erosion,’’ 16, argues that ‘‘civilian control is not a fact but a process.’’ Feaver notes in Armed Servants, 102n.5, that his formal model could be expanded to include an advisory stage in which the military can counteroffer to the civilians, but this still assumes that civilian and military preferences are two distinct blocks rather than positions that evolve through discussion. It would be premature to dismiss the model, as Feaver does not test it, but it fails to capture some of the behavior that Feaver himself labels ‘‘shirking’’ at the advisory stage (e.g., exaggerating risks).

Examples of other kinds of processes or relationships capable of producing similar outcomes are coincidence, persuasion, independent agreement, identity, or agent pressure on the principal.

L.L. Bernard , Social Control in its Sociological Aspects ( New York: The Macmillan Company, 1939), 11. Max Weber , Economy and Society (Berkeley, CA: University of California Press, 1978), 215, defines ‘‘obedience’’ as when ‘‘the action of the person ... follows in essentials such a course that the content of the command may be taken to have become the basis of action for its own sake.’’

Allan V. Horwitz, The Logic of Social Control (New York: Plenum Press, 1990), 195.

The mechanism of pure physical coercion would defeat the efficiency purposes of delegation. Coercion is a form of control but not all control is coercive (cf. Horwitz, Social Control, 9).

Weber, Economy and Society, 212-3.

Compare Janowitz, Professional Soldier, 360.

Compare Huntington, Soldier and State, chap. 17; Cottey et al., ‘‘Second Generation;’’ Thomas-Durell Young, ‘‘Military Professionalism in a Democracy’’ in Who Guards the Guardians and How, eds Bruneau and Tollefson (Austin: University of Texas Press, 2006), 23.

Deborah Avant , Political Institutions and Military Change: Lessons from Peripheral Wars (Ithaca: Cornell University Press, 1994). Avant points out multiple times that leader competence can influence both the leader’s propensity to intervene and the success that intervention is likely to enjoy (see e.g., 132).

Huntington, Soldier and State, 71, 87; Janowitz, Professional Soldier, 347-48; Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (New York: Cambridge University Press, 1991), 29; Diamond and Plattner, Civil-Military Relations, xxviii f.; Feaver, Armed Servants, 54.

Huntington, Soldier and State, 72; Janowitz, Professional Soldier, 348, 369, chap.18; Finer, Man on Horseback; Betts, Soldiers; Desch, Civilian Control, 3-4.

Huntington, Soldier and State, 15, 72; Janowitz, Professional Soldier, 359; Desch, Civilian Control; Feaver, Armed Servants, 58-68.

For example, Huntington , Soldier and State; Eliot Cohen, Supreme Command: Soldiers, Statesmen, and Leadership in Wartime (New York: Free Press, 2002).

Huntington, Soldier and State, e.g., 14, 71-72; Janowitz, Professional Soldier, 367-68; Finer, Man on Horseback, 20, 22-23; Bengt Abrahamsson, Military Professionalization and Political Power (London: Sage Publications, 1971); Samuel C. Sarkesian, The Professional Army Officer in a Changing Society (Chicago: Nelson Hall, 1975); Samuel C. Sarkesian and Robert E. Connor Jr., The U.S. Military Profession into the 21st Century: War, Peace, and Politics (London: Frank Cass, 1999), 163; Cohen, Supreme Command, 10; Feaver, Armed Servants, 88-90.

Huntington, Soldier and State, 94-95; Janowitz, Professional Soldier, esp. chaps. 12-15; Rebecca Schiff, ‘‘Civil-military Relations Reconsidered: A Theory of Concordance,’’ Armed Forces and Society 22, 1 (Fall 1995), 12-13; Desch, Civilian Control, 13-14; Feaver, Armed Servants, 58-59, esp.87-88.

For example, Avant, Political Institutions.

Huntington, Soldier and State, 464. A similar implication can be drawn from Cohen, Supreme Command, although it is not his argument: successful civilian leaders owed their success less to micromanagement as a leadership style than to their dedication to understanding the military and the logic of security.

Young, ‘‘Military Professionalism,’’ 29.

Janowitz, Professional Soldier; Morris Janowitz, On Social Organization and Social Control (Chicago: University of Chicago Press, 1991); Sarkesian, Army Officer; Sarkesian and Connor, Military Profession.

Feaver, Armed Servants; Avant, Political Institutions.

Finer, Man on Horseback, 7; Abrahamsson, Professionalization.

For example, leadership, see Peter Roman and David Tarr , ‘‘Military Professionalism and Policy-Making: Is There a Civil-Military Gap at the Top? If So, Does it Matter?’’ in Soldiers and Civilians: The Civil-Military Gap and American National Security, ed. Feaver and Kohn (Cambridge : MIT Press, 2001), 403-28; Dale R. Herspring , The Pentagon and the Presidency: Civil-Military Relations from FDR to George W. Bush ( Lawrence, KS: University Press of Kansas, 2005).

Desch, Civilian Control.

Cohen, Supreme Command; Herspring, Pentagon.

Huntington, Soldier and State; Janowitz, Professional Soldier.

Avant, Political Institutions, 98.

For example, Janowitz, Professional Soldier, 175-76.

For example Acts of 1861, 1862, 1915, 1918 establishing various medals and stipulations of extra pay.

This is not to deny the careerist incentives that are also rampant in the military, merely to point out that the cultural ideal is one of selfless service.

Singer, Corporate Warriors, 155.

Ibid., chap. 10.

FAR 42.13.

General Services Administration , Federal Acquisition Regulation (New York: Wolters Kluwer Law & Business, 2008).

FAR 37.5.

FAR 4.6; 42.11; 42.15.

FAR 42.

FAR 42.1501.

FAR 37.114.

FAR 37.114(a-c).

For example, U.S.C. title 5 part III subpart B chapter 31 subchapter 1 §3109 (5 U.S.C. 3109), which states that agencies may hire individual experts or consultants temporarily (up to one year).

FAR 37.104(c)(1-2), (d)(6)(i-ii).

The law specifies that ‘‘inherently governmental functions’’ must be carried out by officers of the United States and cannot be carried out by private contractors. Contracts with organizations that offer ‘‘quasi-military armed forces’’ are prohibited, but contracts with companies that provide ‘‘guard or protective services’’ are allowed (FAR 37.109).

Compare Feaver, Armed Servants, 90-91.

FAR 37.302.

FAR 3.104-7 (d)(2)(ii); see subpart 3.7 for rules on voiding and rescinding, esp. 3.703 Authority; see also 2.101 ‘‘termination for default.’’ For punishable actions, see subsection 27(e) of the Procurement Integrity Act 41 U.S.C. 423.

FAR 3.104-7 (d)(1)(ii); FAR 9.407; FAR 2.101 ‘‘suspension.’’

FAR 3.104-7 Violations or possible violations (b)(3) and (5).

FAR 3.104-7 (d)(1)(iii), (d)(2)(i).

FAR 3.704-5.

The insistence that contracts not involve direct government oversight could be unique to the United States, but the feature preserves the distinction between contracts for services and contracts for personal services, protecting government employees from direct competition with individuals hired temporarily off the private spot market. While the stipulation that oversight may not be exercised may be overcautious, any developed or developing democratic legal system will have to wrestle with the tension between recruiting and retaining career civil servants and hiring ‘‘temporary’’ help.

Avant, Market for Force.

Singer, Corporate Warriors, 154-55, argues that contractors are not always cheaper or more efficient than militaries.