09/06/2012 11:56 am ET Updated Nov 06, 2012

Disrespecting the U.S. Constitution the PMF Way

As a thought exercise let's just pretend that you are an enthusiastic supporter of the use of private military and security contractors (PMSC). Not that there is anything wrong with that. Perhaps you run a trade association advocating their use in hotpots around the world. You repeatedly, with more than a little degree of accuracy, and proudly proclaim that there is a distinguished record of using civilians to help U.S. military forces in their various wars and peacetime operations.

So as you review your record of accomplishments in making the world a more accepting place for PMSC you run down your checklist.

  • Successfully persuade people that PMSC are not mercenaries. Check!
  • Persistently argue that any criticism of PMSC use is just the work of a biased, liberal media. Check!
  • Contend that as private sector entities PMSC need less, not more, government regulation. Check!
  • Convince people that the use of PMSC is entirely consistent with the U.S. Constitution. Uh oh, red alert. All hands man your battle stations. Prepared to repel Matthew Underwood.

Mr. Underwood was a law student at Northwestern University Law Review who graduated this year. His note, "Jealousies of a Standing Army: The Use of Mercenaries in the American Revolution & Its Implications for Congress's Role in Regulating Private Military Firms" was published in the Winter 2012 issue of the Northwestern University Law Review.

Underwood argues that "that treating PMFs as civilians for the purposes of regulation is misguided, both as a constitutional and practical matter. [...] The use of mercenaries during the American Revolution should inform the debate over the regulation of private military firms (PMFs) today."

Ironically, Underwood is not arguing against PMFs per se. Instead, he argues that:

PMFs as they currently function in Iraq and Afghanistan fall squarely within the Framers' broad conception of a standing army. The debates about national defense following the American Revolution show that the Framers accepted a standing army in the new nation solely on the condition that it be regulated and controlled by Congress. However, PMFs are currently governed as civilians by the terms of their contracts with the Executive Branch. This arrangement has led to a number of serious problems, including widespread waste and fraud resulting from deficient oversight, lack of accountability for brutal human rights violations, and distortion of the democratic decisionmaking process. This Comment argues that treating PMFs as civilians for the purposes of regulation is misguided, both as a constitutional and practical matter. Congress must exert control over PMFs using the same system that governs the military, in accordance with the separation of powers over national defense established at the framing.

Underwood's primary point is that if you examine the historic American use of mercenaries it "shows that a standing army, in the experience and understanding of the Framers, included both enlisted citizens and private enterprises who performed a wide range of essential military functions."

Moving forward in time two-plus centuries he argues that PMFs as they currently function in Iraq and Afghanistan fall squarely within the Framers' broad conception of a standing army. Thus:

The debates about national defense following the Revolution show that the Framers accepted a standing army in the new nation solely on the condition that it be regulated and controlled by Congress. If PMFs fall within the Framers' conception of a standing army, then Congress has a responsibility under the Constitution to regulate them as part of the military.

Underwood believes that Congress has the power, under Article I, Section 8 of the Constitution, to regulate PMFs as part of the military. Note to KBR, DynCorp, Academi, Triple Canopy et cetera; you're in the Army now.

For those who need a reminder that would be the section that states "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; particularly these parts":

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

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

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Of course, to nobody's surprise, Congress hasn't done all that much, aside from modifications to the Uniform Code of Military Justice, which has yet to be tested in the Supreme Court, and revisions to the Military Extraterritorial Jurisdiction Act, which may or may not be enforced, dependent on the political calculations of district attorneys.

This does not sit well with Mr. Underwood, who writes:

Thus far, Congress has failed to exercise this power. Congress's failure represents an abdication of its proper role in the constitutional system of separation of powers over the military. As the Framers well understood, the "parchment barriers" in the constitutional text are insufficient to maintain the correct balance of power among the branches of the federal government. Rather, each branch must protect its own institutional authority. Congress must exert control over PMFs in order to reestablish the proper separation of powers over the military.

Underwood's review of the American Revolution and the postwar debate over whether to rely on militias or standing armies leads him to conclude that at the time of the Constitutional Convention of 1787 "there can be little doubt that at the time of this debate, they understood mercenaries to be part of a standing army. Besides the fact that both sides used mercenaries during the war, the association between mercenaries and standing armies was prevalent in the political debates taking place outside of the convention." Or, put more baldly:

Mercenaries' ubiquity in armies during the American Revolution, as well as their prevalence as a topic of political debate, demonstrates that the Framers and other well-informed citizens at the time understood that standing armies were not limited to enlisted citizens. The fact that the Framers nevertheless provided for the limited use of a standing army in the Constitution shows that they accepted that the nation's military resources could include military professionals other than the citizen soldier. However, they were only willing to make this provision on the condition that Congress have broad power over the military.

If you are a PMF advocate, your response to the above is that there is a bright shining line between regular soldiers and private contractors. But is there?

Contractors are now allowed to "use deadly force when such force reasonably appears necessary to execute their security mission" Furthermore, courts have begun extending immunity from civil suit to contractors in recognition of the role they play in combat. For example, the Government Contractor Defense (GCD) is a judicially created affirmative defense that applies certain provisions of the Federal Tort Claims Act to military contractors. Since the 1980s, it has protected contractors involved in the manufacture or design of military equipment from product liability suits under certain circumstances. Recent litigation has expanded this doctrine to cover contractors who take part in combat. In Ibrahim v. Titan Corp., the court decided the GCD would shield the defendants if they "were essentially soldiers in all but name." Thus, the law now recognizes that, in some cases, no real distinction exists between the role of the military and its contractors.

Okay, so soldiers and contractors are just all part of one big happy lean mean fighting machine. Why is this a problem?

The current system of regulating and managing PMFs is deeply flawed in three key areas.

First, the system distorts the balance of power between Congress and the Executive because PMFs have become a substantial private military force entirely under the control of the Executive. Thus, although Congress's authority over the armed forces was designed to serve as a check on executive power, the use of PMFs permits the Executive to exercise plenary power over a broad range of military operations. Second, the current system lacks sufficient oversight to ensure contractual compliance and to establish a clear chain of command on the battlefield. Third, the system lacks adequate accountability for criminal behavior by PMFs because their employees often do not fall under any court's jurisdiction.

If you accept that this is a problem the questions is what to do about it. Among other things, Underwood proposes that in the field, PMFs would be subject to the military chain of command.

Integrating contractors into a clear command structure would address the operational problems caused when lines of authority are unclear between military officers and contractors who are on the same mission. It would also impose consequences on essential contractors if they were to abandon their duties in the course of an operation.

He also says Congress should insist on access to full information about PMFs:

While enforcing compliance from the Executive may prove difficult, Congress could use its power of the purse to attach conditions to funds used for private contracts. For example, they could refuse funding for companies that wish to withhold proprietary information. Congress has begun to take steps in this direction as well, though not nearly to the extent necessary. The War Funding Accountability Act, for example, would require the President to submit a report to Congress "in the case of a contract entered into by the United States relating to military operations in Iraq or the reconstruction of Iraq" providing "the name of the contractor and a description of the process by which the contract was awarded; the amount of the contract; and the date on which work under the contract is to begin."