Landsknechte

America Should End Mercenary Contracts (Part II)

This feature is special to our Private Military Contractor (PMC)’s Week – a look at PMCs’ utility and future, especially in the maritime domain.

By Tim Steigelman

Assume America’s vital interests are threatened by a distributed network of tribal insurgents Country Orange. The American government needs to close with and engage the enemy. The Orange government agrees to either openly willingly allow or silently cooperate with American military actions in Orange.

American military planners can either send in uniformed military, or PMCs. Preferring to privatize this operation, the government hires (the fictitious) “Mercenaries ‘R Us” to handle the job. To maximize its profits, Mercenaries ‘R Us declines to armor its contractors’ wheeled vehicles or aircraft, obviates back-up communications devices, decides against individual body armor, and arms its mercenaries only with pistols and long guns. They keep a light footprint and send small teams out into known hostile territory. The inevitable happens, and the enemy successfully ambushes the contractors, with many killed and wounded.1

If the injured PMCs were instead American servicemembers, they would be given medical treatment and rehabilitation through military medicine. The VA, for all its flaws, would attempt to help the wounded recover and restart their life after their injuries. If the fallen were uniformed military, their survivors would be taken care of with survivor benefits. All of these benefits were enacted by Congress to support the men and women who go abroad to do the nation’s work in harm’s way.

In our example, Mercenaries ‘R Us sent its employees downrange to do America’s bidding. That is where the similarities to the uniformed military members end. PMCs are not entitled to use military medicine.2 There is no VA for contractors. Death benefits are limited to whatever Mercenaries ‘R Us has arranged for its employees and their survivors—likely very little.3 As long as the stock price stays high and the dividends keep coming, the shareholders are unlikely to have very much concern for the human toll of warfare.4 Battles fought in the name of the American people may not be watched particularly closely by a group of investors primarily concerned with the bottom line.

In other words, by hiring Mercenaries ‘R Us to fight its battles, America has externalized the cost of war, particularly caring for its combat wounded and the survivors of the fallen. No congressional committees to answer to, no pictures on the nightly news honoring the fallen, no unpleasant reminders of the horror of war. The policymakers get to conduct their military expedition, and the economic cost is borne by the shareholders of Mercenaries ‘R Us.

But even on the economic front, hiring PMCs may not be wise in the first place, as contractors may not cost any less overall than uniformed servicemembers.5 Nor does outsourcing insulate the government from responsibility for its actors, because when the government contracts out to private actors to perform public services, those actors become agents for the state.6 Moreover, contract warfare seems to skirt at least the spirit of mandatory Congressional oversight of the nation’s military.7 For all these reasons and as the hypothetical above shows, the inherent tension between public, military service and private ends is fraught with peril.

Private military contractors are one facet of the military-industrial-congressional complex that ought to be dismantled. The profit motive is out of American prize courts, and letters of marque have fallen into disuse. The modern renaissance of PMCs seems an anachronism, perilously like the “large Armies of foreign Mercenaries” that so offended the founders. As disparate personalities as Machiavelli and Washington well understood, mercenaries introduce a host of problems that outweigh their seeming availability as ready, armed manpower. America should get out of the mercenary business.

Tim Steigelman is a Visiting Scholar at the Center for Oceans and Coastal Law at the University of Maine School of Law in Portland, Maine. He practices business law and admiralty at the Portland firm Kelly, Remmel & Zimmerman, and is a reserve naval officer. The opinions above are solely his own, and do not purport to express the views of the Department of the Navy, Department of Defense, nor any agency or department of the United States, nor any other organization or client.

1. This hypothetical is drawn from Burke v. Air Serv. Intern., Inc., 685 F.3d 1102 (D.C.Cir. 2012).

2. Out of necessity, injured contractors do receive medical care from military doctors when in theater, which is both a cost driver to the government and a point of contention.  Once stabilized and sent home, the gratis health care ends and the injured mercenary is left with private medical insurance.

3. Citing Jimmie I. Wise, Outsourcing Wars: Comparing Risk, Benefits and Motivation of Contractors and Military Personnel in Iraq and Afghanistan (2009–2011), MBA Professional Report, Naval Postgraduate School (2012), available here.

4. A private company is generally required to maximize return for its shareholders, and corporate officers who make decisions at the expense of shareholder returns may face liability. Corporate oversight, such as it is, is exercised by shareholders.

5. See Isenberg, “Are Private Contractors Really Cheaper?”.

6. See, e.g., West v. Atkins, 487 U.S. 42, nn. 14-15 (1988).

7. See U.S. Constitution, Article I § 8 (requiring biannual reauthorization for the raising and supporting of armies).

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