06/27/2012 11:13 am ET Updated Aug 27, 2012

An American Foreign Legion

Gee, why should have the French have all the fun? By that, I mean the French Foreign legion, the venerable French Army unit, exclusively created for foreign nationals willing to serve in the French Armed Forces, which is an enduring staple of literature, movies, and pop culture.

America, of course, has had somewhat similar things in the past such as the 1st American Volunteer Group (AVG) of the Chinese Air Force in 1941-1942, famously nicknamed the Flying Tigers, for example, but we've never had our own Legion. Doubtlessly some would object to the imperialist connotations it would arouse, shades of the Roman Empire, although considering the Pax Americana the world has seen since WWII some might wonder if it is such a big difference.

Still, rather ironically, some see an American Foreign legion as the solution to the perennial issue of control and accountability over contemporary private military and security companies (PMSC).

This, at least, is the solution offered by Blake F. Nichols, a third year law student at Michigan State University College of Law and is the Executive Editor of the International Law Review. He wrote an article "Legitimizing A De Facto U.S. Foreign Legion In Afghanistan: Transfer Of Mission Critical Security Operations From Private Contractors To U.S. Military Personnel" published in the Michigan State University Journal of International Law earlier this year.

Like many others writing on this issue Nichols believes there is too little accountability stemming from a lack of oversight and that some fairly substantial changes will be required to correct the situation. But, unlike others, he proposes the adoption of a U.S. Foreign Legion as one possible solution to the overreliance on PMC personnel in Afghanistan.

Of course, he does not claim that a Legion would resolve all issues associated with the use of PMCs. But what he does do is "examine the implementation of a formalized, structured, U.S. Foreign Legion, which would build on current U.S. laws, borrow from other formalized foreign military institutions, and would reduce some of the problems currently associated with reliance on PMC personnel by incorporating these same individuals into the existing U.S. military command structure."

Here are a few of the problems he sees with PMSC use. First, PMC personnel are essentially temp workers who can be hired or fired as the contract dictates. While this may be good for the free market system it is bad for mission-critical functions; especially, when PMC personnel are also free to walk away from a job any time they want. Contractors just do not face the same punishment for defecting from service that regular soldiers do.

Second, there is a significant financial cost.

With such heavy reliance on contractors, it is no wonder that "[f]or federal fiscal years 2002-2010 . . . . the reported value of funds obligated for contingency contracts for equipment, supplies, and support services is at least $ 154 billion for the DoD, $ 11 billion for the Department of State, and [*464] $ 7 billion for the U.S. Agency for International Development (USAID)." When one adds the "$ 5 billion in grants and cooperative agreements awarded by State and USAID" the total value becomes $ 177 billion. To put these figures in more comprehensible, concrete terms, the average cost per U.S. household for contractor support of contingency operations in Iraq and Afghanistan in fiscal years 2002-2010 was $ 1,505.

Third, even if you accept that PMCs are the most "cost-effective for performing certain support functions," a claim that Nichols believes is "certainly open for debate", and assuming that the military could properly oversee the awarding and implementation of contracts while still tending to their other, core objectives, there still remains the policy concern of whether or not the U.S. wants to continue to rely on PMCs.

U.S. policy has historically evinced a preference for the citizen-soldier who, rather than being a professional soldier for hire, would be called upon when needed to resolve a conflict on behalf of his or her country and then return to civilian life after completing military service and take back up a life in business, agriculture, etc. In this way, the citizen-soldier represented the most effective compromise between an effective fighting force and a military that is least likely to interfere in the internal affairs of the nation. While this note does not suggest that the United States is in any immediate danger of PMCs staging a coup d'etat, there is concern within the U.S. military that traditional military principles are being eroded by the increasing use of PMCs, even those comprised largely of former U.S. soldiers; the argument put forward by some of our own military officers has essentially been that associating the U.S. armed forces with commercial enterprises could compromise their professionalism. U.S. Army Colonel Bruce Grant is quoted as saying, "When former officers sell their skills on the international market for profit, the entire profession loses its moral high ground with the American people." Legitimizing the security functions these contractor personnel perform by incorporating their tasks into the current military command structure, as this note suggests below, would arguably help to alleviate some of these concerns.

Fourth, the American public does not have an accurate sense of the human cost of the wars in Iraq and Afghanistan because contractor injuries and fatalities are not well reported or even considered.

Fifth, the decisions of PMC personnel can adversely impact U.S. military operations, but PMSC personnel are can make and execute plans wholly outside of the existing military command structure.

Andy Melville, Project Director for Erinys, Iraq, when asked who his company was accountable to, said that Erinys is accountable to coalition forces and insisted that Erinys is a "very professional and disciplined company." However, Lawrence Peter, formerly in charge of regulating private security in Iraq for the U.S. government, and now a Private Security Association Representative (note the irony), admits that typically, any reprimand of private contractor personnel that does make its way back to the military would be handled between the contracts officer who hired that private security company and the private security company itself and not necessarily between the individual PMC employee and the military. Again, difficulties arise here in that the military must rely on cooperation from the PMC in order to even begin to determine which PMC employees may be responsible; the system simply does not provide the same checks and balances for PMC actions as it does for more traditional, public military forces.

Nichols sees other problems with PMSC use but you get the idea.

In light of the projected need for continued U.S. presence in Afghanistan through at least 2014 he suggests a U.S. Foreign Legion as one possible method to bring about fundamental change that the Commission on Wartime Contracting in Iraq and Afghanistan suggests "must be made."

Nichols believes that an American legion would legitimize the U.S. use of force in Afghanistan. Until Afghanistan is capable of handling security internally, utilizing a Legion would meet the practical needs of securing a nation while avoiding some of the harshest criticisms about the accountability of PMC personnel. U.S. Legionnaires would be held to the same high standards as other U.S. military personnel and would likely avoid some of the criticisms of "heavy-handedness." If problems arose, they could be dealt with under the Uniform Code of Military Justice in the same way disciplinary actions are handled for U.S. military personnel.

Another benefit would be to increase accountability through the military chain of command.

When asked about U.S. actions in Fallujah, Iraq following the death of four Blackwater PMC personnel, Marine Col. John Toolan suggested that the military's original plans for working with local leaders in Fallujah to minimize violence were thrown to the wayside when those contractors drove through the city without communicating their intent or location to the military. This was a highly publicized example of what can go wrong in the interplay between PMC and military actions through a lack of communication.

Finally, a Legion would remove the middleman from the equation. Instead of having prices set by a company looking to profit from conflict, the Legion would pay its members directly for their services and in this way reduce the chance that funds would be squandered in the process.

How much would a legion cost? Nichols roughed out some numbers. He wrote, "A very crude approximation could be made by taking the number of PMC personnel currently devoted to security functions and assuming a similar number of U.S. Foreign Legionnaires would be needed to replace the PMCs. To approximate this cost, the U.S. could look to its own internal pay scales, to pay scales of similar foreign military forces, and to current pay for PMC personnel in order to estimate the pay for U.S. Foreign Legionnaires." A low-end annual estimate for the salaries of a 150,000 strong" U.S. Foreign Legion would be anywhere from about $ 2.6 billion to $ 5.1 billion.

Nichol's article outlines other advantages to establishing a Legion but in his conclusion he sees the future this way:

Assuming an eventual conclusion of U.S. involvement in hostilities in Afghanistan and given the fact that many of the PMC personnel are highly trained, it would be logical to retain some portion of this force for security in other areas. An end to hostilities in Afghanistan would not necessarily mean a dismantling of the U.S. Foreign Legion. Looking to the French Foreign Legion as an example, one of the major adjustments following the independence of Algeria included the reduction of the Legion from 20,000 troops to 8,000 troops. Currently, the United Kingdom is slated to reduce its elite Gurkha regiment by 700 servicemembers to a troop size of 2,900 soldiers by 2015. Yet, despite troop reductions or changes in mission objectives, both of these military units endure and a U.S. Foreign Legion could likewise adapt to changing demands.