JURIST Guest Columnist Tara Lee, a former Navy JAG now practising national security law, says that kicking contractors off the American battlefield in Iraq and Afghanistan is not the answer to alleged problems and abuses; security contractors aren’t mercenaries and they can be held accountable for their actions….

Michael Walzer is wrong. That's not an easy sentence for me to type. I'm a Naval Academy graduate and a former JAG. Most of what I know about the law of war was taught to me straight from the text of Walzer's Just and Unjust Wars. You can’t study ethical warfighting without concluding that Michael Walzer knows his stuff. But, in a recent piece in The New Republic, Walzer lent his voice to the swelling chorus condemning the use of private security contractors in Iraq. Walzer is wrong, and so is everyone else who argues that private security contractors are mercenaries who can’t be held accountable.

This is not just an academic error. When our respected scholars (like Walzer) get it wrong, it leads our politicians towards unnecessary and potentially harmful legislation (like the pending bill to ban the use of private security contractors in Iraq and Afghanistan) and creates momentum for misguided political pledges (“If elected President I will cut 500,000 federal contractors”). So, before our candidates get too far down the wrong path, let’s be clear: private security companies are not mercenaries and they can be held accountable.

Walzer and others have been using “mercenary” as an interchangeable synonym for “private security firm.” According to Webster’s, “mercenaries” are professional soldiers hired for service in a foreign army. Not all private security firms are mercenaries, and none of the American companies currently working in Iraq and Afghanistan meet that definition. The private security firms working in Iraq and Afghanistan are not there to engage in offensive force. DoD regulations expressly prohibit contractor personnel from participating in direct combat activities. Multiple U.S. laws, such as the Federal Activities Inventory Reform (FAIR) Act of 1998 and 5 U.S.C. 3108 (the “Anti-Pinkerton Act”), already prohibit contracting out inherently governmental functions, especially combat roles. According to the Office of Management and Budget, “protection of property and persons is not an inherently governmental function.” That basic protection is all that contracted security companies can and do provide in Iraq and Afghanistan. Calling these companies “mercenaries” is irresponsible invective that diminishes the important debate about battlefield roles and responsibilities.

But Walzer and the other critics of private security companies are doing worse than just mislabeling for dramatic effect. They also brashly advance a flawed argument — that the use of private security contractors in Iraq and Afghanistan is ethically unsound because those firms are insufficiently accountable to the state. They say that when the government contracts private security companies to do work in dangerous places, individuals aren't accountable and politicians aren't accountable. That’s wrong on both counts.

The first inaccuracy of the accountability argument is the sweeping assertion that our politicians are not accountable to the public when contractors are sent to Iraq and Afghanistan. In fact, both our executive and our legislature are directly accountable to voters for the choices they make in the conduct of and accounting for this war. Our politicians are as accountable for choices made in government contracting as they are for any other choices made in the process of governing. (Thus the race to gain votes with the vague and dangerous “I’ll cut contractors” soundbite.)

After political accountability, the contractors’ critics decry an absence of criminal accountability. Walzer in particular, like others before him, points with umbrage and outrage to “Order 17.” “Order 17” is the Transitional Administrative Law signed by Paul Bremer in 2004 giving contractors in Iraq immunity from prosecution in Iraqi courts. The cite to this particular order is made as though it is something uniquely troubling, a specific exception carved out to accommodate our government's increased reliance on contractors in Iraq. But Order 17 is not unique or unusual. Immunity from local prosecution for contractors accompanying the armed forces is a standard term of the Status of Forces Agreements that the United States has signed with countless other countries. There are military attorneys who spend entire careers keeping Americans deployed abroad out of foreign courts and foreign jails. Our preference for our own court systems isn't new and it doesn't strike me as particularly controversial.

Criminal accountability for battlefield misconduct is complicated and elusive, no matter who the actor. Successful prosecutions are rare, and even then usually unsatisfying and underinclusive, whether the wrongdoers are soldiers at My Lai and Haditha or contractors in Baghdad’s Nissor Square. U.S. laws already exist subjecting American citizens employed by contractors in Iraq to criminal prosecution under both the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act. If there’s an accountability gap remaining, it derives from our limited reach over contractor-employed foreign citizens who commit crimes in foreign countries, and that’s a narrow problem that could be remedied by Congressional extension of U.S. federal court jurisdiction. That potential jurisdictional limitation is not, however, a per se ethical bar to all battlefield use of contractors and it does not equate to the total absence of accountability that Walzer and others bemoan.

Instead of narrowly identifying the jurisdictional gaps, acknowledging the efforts of our Congress to bridge those gaps, and recommending ways to effectuate existing accountability mechanisms and develop the necessary prosecutorial will, Walzer summarily declares that "mercenaries in Iraq are radically unaccountable; their fire is free." That's lovely writing, but it’s just an inaccurate assessment of the current contractor accountability matrix. It’s also shamefully shallow criticism in an area where deep thinking and real solutions are required.

The last erroneous and oft-stated criticism of private security contractors relies on the suggestion that contractors are not as well-trained for their roles on the battlefield as soldiers. Walzer, for example, argues that using soldiers for all security-related missions in Iraq would be better because "soldiers are trained to fight in accordance with a code of conduct." Well, DoD regulations also require law of war training for every contractor in Iraq. Under those regulations, every contractor gets the same training we give our soldiers. Arguably, private security companies have even more motivation to give effective training than the military does, because they are subject to civil lawsuits when they violate the law of war, while the military is not. In addition to training their employees in the laws of war and the proper use of force because it's the right thing to do and because the government tells them to do it, contractors also have to do it, and do it well, as a matter of litigation risk management and corporate governance.

There are ample reasons why using contractors in certain roles makes sense, not least of which is the fact that we plainly don’t have a large enough military to support every aspect of all the missions we have undertaken. We c
an’t argue against the use of contractors (or announce that we’ll just cut half a million of them) without either proposing alternate solutions or accepting mission degradations.

We should use this election cycle to clamor for real solutions from our scholars and leaders, rather than settling for their blithe condemnation of the use of contractors. The current threats to our national security and to global stability are going to continue to require solutions that leverage our full range of resources — military and civilian. We need an ethical warfighting plan that properly marshals and controls all those resources, one that acknowledges a third type of battlefield actor that is neither an unarmed civilian nor a soldier.

The binary soldier-or-civilian rubrics we have used to measure ethical warfighting in the past — from Walzer's Just and Unjust Wars to the Geneva Conventions — all pre-date the emergence of a powerful non-state actor with the declared intent and evident capacity to do colossal harm to American civilians. Lawyerly adherence to those outdated rubrics and a scholarly unwillingness to think beyond the old paradigm is failing us. It has led us, for example, to the non-sensical and amoral legal conclusion that none of our current enemies qualify as enemy combatants. Clearly, we need our scholars (like Walzer) to develop new ethical paradigms that better address the nature of current conflicts. We also need our prospective leaders to offer more than undeveloped reactionary soundbites.

Public responsibility for the conduct of war can include the ethical and accountable management of contractors. It's not time to kick the contractors off the battlefield, it's just time to recognize and address the implications of all types of actors on the battlefield: soldiers, civilians, insurgents, and contractors.

Tara Lee is a former Navy JAG and former Resident Fellow at the Center for the Study of Professional Military Ethics at the United States Naval Academy. She currently practices law in the National Security Practice Group of a major US law firm.
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