September 2010

Doubtlessly, Warren Zevon and writer of the legendary song, Lawyers, Guns and Money, would appreciate this, if he were still alive. By now you may have noted that I like writing about law journal articles on private military and security contractors. Perhaps it is just because reading them put me to sleep quicker than taking Sominex. Nevertheless once you get past the deadly eye glazing prose, at least to those of who aren’t lawyers, they do have interesting things to say. The latest to attract my attention is Military Lawyers, Private Contractors, and the Problem of International Law Compliance by Laura A. Dickinson , published earlier this year in the New York University Journal of International Law and Politics. Dickinson is Professor of Law, Sandra Day O’Connor College of Law at Arizona State University and author of the forthcoming book, ” Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs . She accepts that private contractors are likely to become a permanent part of the military landscape. Her concern is how can we make it more likely that contractors will respect core human rights norms? She writes it will not be sufficient merely to focus on the degree to which these contractors are formally governed by international and domestic law. In her view, “the problem is much less about the formal legal framework and much more about the subtle ways in which norm compliance actually operates on the ground. After all, legal rules are often followed not because of the formal existence of a norm, but because of more inchoate processes involving how much the legal norm is internalized by relevant actors.” Specifically she seeks to understand how international legal norms are currently inculcated within the uniformed military, and then see whether those institutional structures are less present (or indeed are undermined entirely) in the private military context. To do so she summarizes conclusions drawn from a series of interviews she conducted with U.S. military lawyers in the Judge Advocate General (JAG) Corps. She says these lawyers, embedded with troops in combat and consulting daily with commanders, have, to a large degree, internalized the core values inscribed in international law–respect for human rights and the imposition of limits on the use of force–and seek to operationalize those values. In her view their stories strongly indicate that the presence of lawyers on the battlefield can help produce military decisions that are more likely to comply with international legal norms. Dickinson believes that: Differences in organizational structure and institutional culture (and not just differences in the applicable legal regime) may be principal reasons that the rise of private military firms threatens core rule of law values. In particular, the use of contractors may jeopardize certain aspects of military culture, both because the intermingling of contractors and uniformed troops on the battlefield may weaken public values within the military, and because contractors operating outside the military chain of command may themselves develop a different organizational culture and set of values that come to predominate in conflict and post-conflict situations as contractors assume ever-greater responsibilities. Thus, if we are to address how to maintain public law values in an era of privatization, we must take seriously the question of organizational structure and culture, its importance, and the ways it might be shaped. Organizational theory have long recognized that group norms and internal organizational structures can further (or hinder) an organization’s goals, as well as the goals of individuals within organizations. The central question is how best to ensure that compliance agents within an organization–such as lawyers– can most effectively bring about compliance with central rules and values of the firm as well as various public norms. Theory suggests such agents will tend to be most effective under the right conditions: (1) the accountability agents must be integrated with other, operational employees; (2) the agents must have a strong understanding of, and sense of commitment to, the rules and values being enforced; (3) they must be operating within an independent hierarchy; and (4) they must be able to confer benefits or impose penalties on employees based on compliance. Uniformed military lawyers–the career judge advocates–are essentially the compliance unit within the military. These lawyers work to ensure that commanders and troops obey the rules of engagement, which are the rules that operationalize the law of armed conflict in a particular war or occupation. Dickinson spends several pages describing in exacting detail how JAGs do this so I will spare you the details. But, and I’m sure you see this coming, in contrast, her interviews reveal that contractors largely fall outside this organizational accountability framework. While they may receive some training in the rules regarding the use of force, that training does not typically include updated advice on the battlefield about how the rules apply in specific scenarios likely to arise on that battlefield. Contractors also do not receive ongoing situational advice from military lawyers or even from private lawyers employed by the firm itself. Indeed, although the contract firms do employ lawyers, these lawyers do not typically spend time on the battlefield and do not have the same independent chain of command that is available to uniformed military lawyers. Finally, the accountability system that has applied to troops has not, at least until recently, been extended to contractors. Thus, the interviews suggest that many crucial, though subtle, mechanisms of compliance with public values are significantly weakened in the privatization process. I should take a moment here to note that many PMC advocates often argue that the discipline and accountability that former military personnel experienced on active duty somehow carries over automatically when they work as private security contractors. It’s as if a Good PSC Fairy waves her wand and these qualities are transferred over by some sort of magical osmosis. Of course, only those who have never served on active military duty could say this with a straight face. Anyone who has ever been in the military understands that due to the stakes the military invests enormous resources into processes like chain of command, command responsibility, and individual accountability. In terms of its scope and breadth the private sector simply has no equivalent. To understand why this is a real problem, consider the following excerpts from the JAG interviews: Judge advocates described a somewhat uneasy relationship between contractors and troops, and in particular, between security contractors and troops. Although they respected the willingness of these contractors to put themselves in danger, the judge advocates interviewed perceive security contractors to be more willing to shoot than troops and therefore worry about the impact of these contractors on the overall missions in Iraq and Afghanistan. … Judge advocates also reported that the attitude of the contractors seemed to have a negative impact on the troops, in part because the contractors did not need to follow the same military discipline. As one judge advocate observed, “Blackwater gave the impression, ‘We’re going to do what we want and we don’t have to follow the rules. We’re not in America.’” Such an attitude: was bad for us because the soldiers saw it. I would talk to company commanders, with 6-9 years military experience, supervising young soldiers putting boots on ground, on the receiving end of insurgents. They could see the Blackwater guy drinking, on steroids, not following rules. It fostered discipline problems. … A number of judge advocates reported that individuals who had left the military because of discipline problems but were later hired by private firms to work as contractors. As one judge advocate observed, “There were plenty of stories that a guy working as a contractor got court-martialed when he was a platoon member, and now he’s back making $100 grand [per year],” as compared to uniformed military specialists who only earn $20,000. As another judge advocate noted, “I used to hear that some of the contractor guys, security contractors and others, had been kicked out of uniform, not for serious disciplinary issues, but rather because they got administratively separated. Now they were making $80,000 riding desk at [the Coalition Provisional Authority].” Yet another judge advocate reported, “There are stories that circulate among the JAGs that a soldier who’s been kicked out of the army with a bad conduct discharge can turn around and earn twice as much working for a contractor. “While, as the judge advocates acknowledge, these stories may be apocryphal, they reflect the unease that the judge advocates feel about the ability of contractors to flout military rules without suffering employment consequences. … Finally, the judge advocates generally reported that the training of the private security contractors was not as extensive as for troops. As one judge advocate recounted, “We were told they received training in their own rules on the use of force. We were told that they received certification from their super visors, and there was a form.” But, as this judge advocate observed, “There was no looking behind the forms.” Under federal law, contractor employees must be certified as having no prior convictions for domestic violence, but judge advocates report that the certification process was “completely ineffective” because “while violence against women is a serious offense,” it is not the best indicator of whether someone will use a weapon properly in Iraq. And as for whether third-country nationals had a criminal record or had even been convicted of war crimes, “no one was looking behind the veil on this.” Of course, at this point PMC advocates would argue that new laws passed in recent years, mainly modifications to the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice, helps solve these problems. Uh right; here is what Dickinson says in regard to that: First, it appears that few of the security contractor firms have accountability agents or ombudspersons who are charged with monitoring abuses and who are actually integrated in the field with operational employees, as the judge advocates are. While the firms typically rely on their general counsel for legal advice, the lawyers in these offices appear to remain primarily at headquarters rather than deploying in the field. … Second, the employees of these companies seem to lack a strong sense of even what the applicable laws and norms are, let alone have any great commitment to them. For example, in congressional testimony, Blackwater CEO Erik Prince appeared to have at best a murky understanding of the precise legal rules and regulations that governed his employees’ use of force and available accountability mechanisms for the misuse of that force. Thus, he asserted that his employees were subject to punishment in military courts under the Uniform Code of Military Justice, even though the military had not yet implemented recently enacted legislation extending military jurisdiction to contractors, and even though UCMJ jurisdiction over State Department–as opposed to Defense Department–contractors had still not been clearly established. … Third, contract employees seem to receive insufficient training in applicable laws and rules, particularly those that govern the use of force. While such contracts often now require training, government reports and other investigations have suggested in numerous instances that this training has not been adequate. … Fourth, the fact that many companies use foreign labor complicates training and accountability efforts, as well as the broader effort to instill public law values. So what is to be done? While there have been a few baby steps taken, such as giving JAGs the authority to investigate and prosecute cases of contractor misconduct or allowing security contractors to receive training from judge advocates Dickinson aims bigger: A more ambitious approach would be to try to recreate the full panoply of organizational features for contractors that the military created post-Vietnam for its own personnel. Such features could be mandated either through terms in the contracts with private firms or through direct regulation. And though it is debatable how best to implement these institutional features outside the uniformed military context, it is clear that this is an area that should be considered seriously in any effort to reform the contracting process. Rather than seeking more commingling of government accountability agents with contractor employees, another possible reform approach would seek to encourage or compel contractors themselves to institute processes that would help establish the organizational or professional culture necessary to protect public values. Thus, through governmental regulation or independent industry efforts, contract firms might create internal organizational structures to enhance compliance with the public law norms and values this article has discussed. Such efforts would involve firms adopting the kinds of reforms that the military adopted post-Vietnam with regard to its judge advocates. These efforts include requiring contractors to establish compliance units or hire ombudspeople who would accompany operational employees in theater, advise commanders, report through an independent chain of command, and have authority to confer benefits and impose punishments. In short, the idea would be to create within firms themselves a cadre of lawyers who would be analogous to the judge advocates within the military.