It's no wonder that Congress asked such lame questions of Blackwater's Erik Prince and think that tweaking MEJA will solve the problems. While there's a war raging and we continue to lose credibility, Congress, namely the Foreign Affairs Committee, fiddles.
From Chapter 9 (draft) of the forthcoming Handbook on Military Administration (buy two for holiday gift giving):
It is too early to tell if private military companies are a temporary aberration or the signal of a long-term reversion to the ways of earlier times. Complicating our understanding is the conduct of the administration of President George W. Bush on the world stage. Far from an actual coalition builder, national security strategies and speeches over the years of his tenure have reinforced a unilateralism on the international stage and in domestic politics and a clear disregard for international norms that combined to eliminate pressures to keep a lid on non-state forces.
Private military companies can be effective tools of foreign policy, if they are intelligently and thoughtfully used. It is still too soon to tell if for the last century and a half the by and large absence of non-state military forces hired by states and sovereigns is an anomaly, a fashionable trend, or something else. Their use in the foreign policy of the United States today is more indicative of the short-sighted foreign policy and endemic failure of the U.S. leadership to appreciate the value of foreign perceptions, notably the civilians with whom our soldiers and private security forces are interacting, in the fight against terror. The U.S. legal environment provides adequate tools to control and manage PMC actions as agents of the United States; however, the use of these mechanisms is intentionally not exercised, to the detriment of all concerned.
Both the conduct and rules of war has changed and the range of services that private military companies provide and what the US requires of them is significant. Unlike technology stewardship issues that prevent aircraft carriers from putting to sea without civilians (for the last four decades), security contractors are on the front lines, directly and independently engaging foreign publics. These “guns with legs” are point persons in American foreign policy and public diplomacy and are perceived as representatives of the United States. Their role isn't a given nor is it required, but we seem to have accepted it. We cannot afford to make these assumptions today or in the future.
The legal environment includes the contracts themselves. It is frustrating to read bloggers and authors I respect to being their analysis of the Blackwater et al by saying the private companies are "taking-over" public sector jobs. They are not taking the jobs, they have been given the jobs and it has always been the responsibility of Congress to make sure the President doesn't abuse its power with regard to the military.
If we're so freakin' concerned about the lack of accountability or the lack of participation by the decision makers, then we need to scrap the whole UN Peacekeeping Operations directorate. From Chapter 9:
Failure to enforce appropriate conduct through existing available means is a failure of the client and not necessarily the company in a world of political accountability, strict licensing and purchasing business driven regulations, and the need to satisfy the client. The dilemma of accountability is not unique to government use of private military companies; it is also an issue for intergovernmental forces, such as those wearing the Blue Helmet for United Nations’ Peacekeeping Operations (PKO). By comparison, the independent nature of the contracting state, with liability and punishment resting solely within the state, is similar to the operation of a private military company in the employ of a state. Particularly in the United States, enough legal mechanisms exist for both, and simultaneous carrots and sticks to compel appropriate behavior. Looking at the United Nations’ peacekeeping operations, an area U.S. private military companies are eager to expand into, shows how accountability rests with the state and its delegated authority and not the agent.
But that's not the real point of the current road to self-discovery that the media and (supposedly) Congress has been on. Congress and the media ignore State's culpability in Blackwater's tactics and they fixate on the high prices of the contractors. How often have you heard the question "Why are they hired?" And if you heard it, how often did the one asking the question really want the truth? There's a reason why this blog's masthead shows "privatization of force" and not "private military companies".
Using slick marketing words and reacting to social constraints of military spending, mission selection, and accountability, PMCs promote themselves as a “low-risk, low-cost, low-visibility way to exert military influence in a time of diminished budgets and shrinking armed forces” while providing flexible and professional solutions to clients with marketing language similar to information technology companies providing outsourcing.
The availability of additional guns that private security companies provide, or “surge” capacity, is one argument for going to the private sector. Based on the idea that it is politically or economically unfeasible to pay for increasing the size of the armed forces, its underlying assumption is the conflict will be short in duration. Some have argued the only way to upsize the military is through reinstituting the draft and thus private security companies avoid conscription from returning to the U.S.
This argument has proven to be empty with the passage of time. After five years of the “Long War,” the White House finally changed its position on upsizing the military. Meanwhile, the Army and Marine Corps remain indirectly augmented in Iraq and Afghanistan by tens of thousands of security contractors. In response to attractive pay of the private sector in 2003-2005, the U.S. military, especially the Special Operations Command (SOCOM) vastly increased retention bonuses to prevent soldiers from leaving the service for the private sector. However, the services continue to supply the private sector with qualified personnel through inappropriate “Up or Out” personnel policies. Many recruiting cycles have passed since the war began and it is hard to argue that the ad hoc surge capability continues to provide a benefit to the strategic interests of the United States.
The downsizing of the post-Cold War period put a focus on “core competencies” and more “tooth” less “tail” in a variation of the Abrams Doctrine, except without the public support element. General Creighton Abrams sought to create a link between deploying the Army and public support for military operations. In practice, it was Secretary of Defense Melvin Laird who initiated Total Force to provide sufficient troops without the costly burden of maintaining a large standing army. Over time, instead of using Reserve and National Guard components to round out the force, the military was made more “lean” and the private sector was looked at to be the fat when necessary.
As this practice took hold, the government was slow to realize what the private sector had experienced in the 1990’s: overzealous outsourcing can result in a loss of control over critical functions and less favorable contract terms and higher per unit costs when factoring in all of the hidden costs. The government, not heeding the lessons of the private sector saw advantages in short-term access o f expensive skill sets and a perceived lower unit cost.
These “private sector efficiencies” have actually increased costs in terms of hard dollars, institutional knowledge, and military-to-military connections and a failure to integrate private resources into missions increasingly focused on the struggle for minds and wills. The focus on the short-term ignores the real costs and real benefits associated with the outsourced services and skills.
Dollar-for-dollar comparisons, while frequently used, are misleading. At the macro level, there is the impact on the economy, including reduced investment in pensions and healthcare. At a lower level, These dollar-for-dollar comparisons oversimplify long-term costs of private markets that fail to be truly competitive while hiding substantial transaction costs that include higher finance costs of the private sector compared to the government’s ability to borrow money at lower rates, vendor incentives to skimp on quality or adhere to the letter of the contract not the spirit, future public costs to return outsourced skills in-house, and transactional costs of writing, enforcing, and monitoring contracts. In the aftermath of the expensive toilet seats and hammers in the Reagan Administration, the Federal Acquisitions Regulations (FAR) were strengthened in an effort to make sure the government received a fair product at a fair price. However, in the fast-paced post-9/11 environment FAR was frequently bypassed. The end result is questionable cost effectiveness of the practice of outsourcing security services.
So, how many recruiting cycles have passed since we starting using the stop-gap / surge capability of the contractors? Finally, four years after P.W. Singer became the de facto expert with his book, it is still clear no one understood what he, Deb Avant or Robert Young Pelton wrote since the start of the Iraq War (nor did they read earlier books like Private Warriors from 2000 or the best book on the subject from 1994 and doesn't even cover the 20th Century).
Finally there is talk of enhancing the DSS that Blackwater backfilled when SEAL Teams proved inappropriate (hey, it's not their job to provide VIP protection in crowded venues). But there is still talk of the fanciful attempt to use the FBI for crimes in conflict areas. Good luck with that.
As far as UCMJ, how do you subject a civilian to military judicial processes and punishments? Changing the scope of application doesn't change the efficacy of the application. This challenge hasn't been worked out even as Congress ruminates over expanding MEJA to cover not just DOD-paid contractors but also cover contractors working in less kinetic environments. MEJA and the FBI, that's humorous. If JAGs have trouble getting battlefield information, how do you think the FBI will fare?
My recommendation is an extension of JAG into the civilian realm instead of the civilian into the military realm. Either put it under the IG, alongside the IG, or create a unit under OSD with deputy rank so s/he can have at least one senior flag under him. This will immediately create more access than either an FBI exclusive or FBI-centric that snaps onto the IG. This position would be appointed by the President and approved by the Congress.
But more importantly, Congress must assert its role in demanding contracts are written and managed properly. Remember under Reagan how pissed off the Congress and public were when paying too much for hammers and toilet seats? And those didn't threaten our national security, our public image, and potentially undermine the struggle for minds and wills in modern warfare over perceptions.
But wait, the Foreign Affairs Committee can continue to play games and ignore the real impact on foreign relations contractors have while the rest of Congress beats up on the companies Congress has implicitly and sometimes explicitly permitted to operate as they do for the last four years.