06/10/2010 05:19 pm ET Updated May 25, 2011

The Constitutionally Compatible PMC

In the nearly two decades I have been following private military contracting issues I have read hundred of analyses and law journal articles regarding how PMCs fit or don't fit, into existing national and international legal frameworks.

Generally even PMC supporters agree with critics that existing laws need to be at least tweaked. May will go further, arguing that new entirely new laws need to be enacted.

But the orthodoxy is wrong, according to Scott M. Sullivan, an Assistant Professor of Law at the Louisiana State University Law Center.

It bears noting that Prof. Sullivan is a member of PRIV-WAR , an E.U.-commissioned research consortium assessing the impact of the increasing use of private military companies and security companies in armed conflict. PRIV-WAR has done some of the most detailed and intriguing legal analyses of the subject in recent years.

He argues in an article "Private Force/Public Goods" he wrote for the Connecticut Law Journal, published this past February, that:

Contrary to academic and mainstream conventional wisdom, this Article concludes that national security privatization comports well with core constitutional and democratic principles and offers greater transparency and democratic control than commonly understood. Moreover, this Article argues that the American use of privatized force reflects and accomplishes normative and democratic commitments of international and domestic law that would be impossible to replicate through other policy avenues.

Prof. Sullivan believes that "conceptions of public policy efficacy must be viewed relative to the accepted special requirements and limitations of national security policy, specifically lessened public visibility of government action and public intolerance for avoidable dangers. Similarly, a genuine assessment of the danger of private actors has to operate against a baseline of their available alternatives. Combining these concerns enables the movement toward a legal regime that can assure that the privatization of national security functions safeguards rather than corrupts other core public law values associated with American national security prerogatives."

His article contains viewpoints not found in the average law journal article. For example, he writes that most claims against privatization either prove too much (asserting that harms under their own terms not limited to the private sector) or too little (that harms are easily remedied through standard regulation). As a result, the prevailing critiques fail to address the fundamental structural question of privatizing and outsourcing force.

Somewhat amusingly it turns out that lawyers are more like us ordinary folks than we commonly assume. By that I mean they are just as prone to make gross generalization and indulge in puerile polemics. He notes, "The current legal doctrine on national security privatization presents a void that lends itself to manipulative characterization by opponents and proponents of privatization alike."

He also examines contemporary privatization practice alongside the chief normative claims made against it. Using empirical studies and comparative analysis, he argues that the perceived harms of private military companies ("PMCs") are overblown. Instead, the institutional structure and commercial characteristics of PMCs reflect little difference from the values reflected in public troops. PMCs, in fact, exhibit characteristics meaningfully associated with proclivity toward legal and regulatory compliance.

Ignore that background noise. That's just the sound of various PMC legal counsels shouting Hallelujah! But Sullivan has a point. Contrary to popular wisdom most PMCs crave to comply with legal and regulatory standards. The problem is that government itself often doesn't know what those standards are.

Furthermore, much of the contemporary criticism of PMC rests on the assumption that there is a bright shining line between private and public sector activities. People have long assumed that everything lumped into the "national security" category should be deemed "inherently governmental" and thus unsuitable for privatization or outsourcing Putting aside for the moment that even the government itself does not know how to define "inherently governmental" the actual history is more complex.

Privatization and outsourcing have saturated U.S. national security since the Eisenhower administration. The formation of NASA in 1958 introduced the federal government's first agency in which full-time private contractors ultimately outnumbered federal employees. The same decade also witnessed private contractors building the country's first long-range ballistic missiles and designing high-tech military aircraft. Private contractors have manned and operated U.S. nuclear missile silos since their inception.

In the 1960s, the military hired private contractors to train South Vietnamese troops prior to U.S. entrance in the Vietnam War. In 1972, private contractors held thirty-six percent of all defense-related jobs. By 2000, that number had risen to fifty percent.

One 1996 study concluded that every Department of Defense civil servant was outnumbered by five private contract and grant jobs.

I did find some of Sullivan's points arguable; such as his belief that "Private intelligence contractors often possess more experience in interrogation than their military counterparts" -- something that was very much not the case in the Abu Ghraib torture scandal - or "the military is the most carefully reviewed agency of the federal government as a formal matter." But many of his other arguments seem credible.

His conclusion is simple.

The arguments that the privatization of national security represents serious constitutional and democratic harms are overblown. The core concern of privatization opponents rests upon a foundation that national security, the quintessential public good, cannot survive the taint of profit motive among those responsible for its delivery. The reality is quite different.