A Response to “America Should End Mercenary Contracts”

CIMSEC “Private Military Contractor Week” has generated several pieces including the two part commentary “America Should End Mercenary Contracts”. Any discussion about PMCs can generate visceral reactions, especially given their activities in Iraq and Afghanistan in the past decade. Nevertheless, the possibility of their growing presence in the 21st century maritime environment suggests a healthy debate and a more accurate reflection of the issues is required. Consequently, “America Should End Mercenary Contracts” has several issues which ought to be deliberated and clarified in this forum.

 

What’s in a Name

 

The article, in the second paragraph, may be confusing the private military contractors of the Executive Outcomes to the PMCs in Iraq and Afghanistan. In the case of the former, PMCs were reportedly used for offensive operations while in the latter case PMCs were ostensibly used or intended for more defensive purposes such as the protection of convoys. As a result, it is the latter which is more similar to the firms employed in maritime security and, thus, the subject of CIMSEC’s PMC Week. Land-based and maritime-based PMCs have inherently different missions. Maritime security companies were not hunting down pirates off Somalia, for example. They provide on-board defense security. To date, as several senior Obama administrations have admitted, no ship with an armed guard contingent has been taken by pirates.

Although the author suggests that these modern mercenaries are privateers, that is likewise an inaccurate term for two reasons. First, privateers were issued letters of marque by states. Most maritime security companies today have a direct fiduciary and contractual relationship with shipping companies and not, by and large, states. Second, privateers were issued those letters of marque to actively attack enemy commerce during wartime. As stated earlier, maritime security companies have a more defensive role and do not seek out illicit organizations.

 

All My Sons

 

The author’s criticism of the private sector is understandable. Historically, many did not behave ethically; as a result, government regulations ensure basic foods were untainted, children were not used in the labor force, and reasonable work weeks were the standard. The article states that “to maximize its profits, Mercenaries ‘R Us declines to armor its contractors,” etc. This is a legitimate issue, but it is also legitimate to discuss the role of the federal government in which contracting officers seek out the lowest-bid among various contractors. Or consider that the U.S. went into Afghanistan with “the army you have—not the army you might want or wish to have at a later time,” as then-Secretary Rumsfeld noted when the military sent in vehicle that failed to be up-armored. By contrast, some contractors had the flexibility to respond to changing circumstances on the ground rather than wait the traditional Pentagon acquisition route.

Another criticism by the author of PMCs is that “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.” What the author may not be aware of is that most PMCs – certainly maritime security companies – do not have public shareholders; rather they are privately held. But if this argument was valid, should the United States likewise restrict the use of publicly-held military contractors such as General Dynamics, Lockheed Martin, and Northrop Grumman because they build the tools and platforms for conducting war? Arguably, if they are accountable, then so might U.S.- or internationally-regulated PMCs. If the author is only discussing the direct actions by individuals providing security, then he might want to walk into any federal building in Washington DC. During a recent visit to the National Archives as I awaited the building to open for researchers, I noted the half-dozen armed guards who were not police. They informed me that their contract gave them jurisdiction to the sidedwalk. Contractors. Armed. In a federal facility.

 

Holding Companies Accountable

 

The author is absolutely correct that organizations must be held accountable. He states that his hypothetical “Mercenaries ‘R Us” has “no congressional committees to answer to” and their “contract warfare seems to skirt at least the spirit of mandatory Congressional oversight of the nation’s military.” But that’s not entirely accurate. Since 2007, the House Armed Services Committee had held twenty-two hearings  in which the role of private security contractors was discussed. The House Committee on Oversight and Reform also held a very highly publicized hearing on the role of the former Blackwater in Iraq with Erik Prince providing the sole testimony. Since 2007, the Senate Armed Services Committee has held forty-six hearings in which issues about PMCs were raised.

In addition, the author may not be aware that Congress has already acted on the issue of accountability when it passed the National Defense Authorization Act in October 2007 which modified the Uniform Code of Military Justice which made the UCMJ applicable to PMCs.

This is not unprecedented. During the age of sail, for example, privateers were held as accountable as officers and sailors in the U.S. Navy. For example, the author might benefit from the “Records of General Courts-Martial and Courts of Inquiry of the Navy Department 1799-1867” in which he would find a number of privateers among U.S. navy ships and personnel. For example, the crew of the privateer brig Scourge in Case 196 were tried for pillaging a neutral vessel and assaulting a superior officer. They were tried by a board of navy officers under board president Captain Isaac Chauncey. Those not acquitted received the same punishment as Navy sailors – the lash and forfeiture of their share of prize money. In that era, U.S. Navy officer and sailors also shared in the profits of captured enemy vessels. Nor was this the only case; others were likewise tried for violating the 1800 “Act for the Better Government of the Navy. So PMCs – or rather PMSCs specifically – are and could be held accountable.

 

Wounded Civilian Warriors

 

The author states in paragraph 3 that “if the injured PMCs were instead American service members, 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.” Because most maritime security companies are hired directly by shipping companies, this particular statement might not apply. However in the future if the US found itself in a position to hire more armed guards on the few US-flagged ships remaining, then there is precedent for Congress to expand services for them. This includes “An act regulating pensions to persons on board private armed ships” who become wounded or disabled (February 13, 1813), “an act to amend and explain the act regulating pensions to persons on board private armed vessels” (August 2, 1813) and “an act giving pensions to the orphans and widows of persons slain in the public or private armed vessels of the United States (March 3, 1814.) By 1824, the Privateer Pension Fund listed ninety-seven “invalids disabled in action in the line of duty.” The fund was governed by a secretary, John Boyle, who later served as acting Secretary of the Navy.

 

Conclusion

 

The issues surrounding PMCs and, specifically, private maritime security companies, are far more complex and demand more attention in the coming decades. The fact is the U.S. and other traditional powers are downsizing their militaries while global and regional security threats are at best constant and at worst growing. While turning toward the private sector for supplementary security in as regulated environment as US military forces may seem distasteful to some, the reality is that without sufficiently right-sized military options, countries and companies will have to turn to their own sources of private security particularly at sea. If the U.S. and partners stick their head in the sand with this issue or dismiss it out of hand, private security will not go away; in all likelihood the vacuum of control and regulation will either expand without appropriate international mechanisms or simply fall upon rising peer-competitors and that may be a far more troubling outcome.

 

Claude Berube teaches at the United States Naval Academy and is an officer in the Navy Reserve. His third book was “Maritime Private Security: Market Responses to Piracy, Terrorism, and Waterborne Security Risks in the 21st Century. He is the immediate past chair of the editorial board of Naval Institute Proceedings and is writing his doctoral dissertation on Andrew Jackson’s Navy. The views expressed are his own and not those of the Naval Academy or the US government.

11 thoughts on “A Response to “America Should End Mercenary Contracts””

  1. There is an duty, at least for the nations that have signed UNCLOS, to cooperate in the repression of piracy. (Article 100)

  2. Further, “A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.”

  3. It seems that the decision has already been made that the issuance for Rules for Use of Force and Rules of Engagement are the inherently governmental activities, but the train and equip functions can be either military Service or contracted service. As a person who has worked on both sides of that fence I can’t say that there is evidence to support either system being superior.

  4. Claude:

    Thanks–interesting points above. And thanks most of all for taking the time to respond. I agree with many of your points, but I feel that we’re talking past each other.

    I am focused tightly on mercenaries, not the broad range of security service contractors that you address; I have very little qualms about contract security guards on federal property. As it happens I have had the privilege of working with uniformed military, federal civilian law enforcement, and contractor security personnel all at the same location (frequently, all on watch at the same time). While they brought different perspectives, all three groups stood a professional watch. There was more than a little overlap between the three groups, as individuals left military service and looked for a civilian job doing much the same work as a civilian employee or contractor. I would imagine it is much the same with private mercenary companies that hire out of active duty, drawing from the same talent pool that the military attempts to retain.

    My argument is not that civilian contractors are per se bad. Rather, I am most concerned about overseas projection of military power, on a for-profit, contract basis–warfare by mercenary army.

    I don’t understand why for-profit warfare, essentially abandoned by the US from 1865 through ~2003, should suddenly be in vogue again. No, privateers and substitutes are not mercenaries, but it’s the closest thing America had for a long time. As you know, the Declaration warned against mercenaries. A fledgling republic might be forgiven employing a profit motive to encourage sympathetic but reluctant seafarers to assist in the revolution, or other combat soon after. A 90-year old nation had somewhat less call to allow paid substitutes in fighting an existential Civil War.

    A modern republic should have still less need to rely on a profit motive to succeed in geopolitics and, when necessary, combat.

    Our nation’s history in this area, until very recently, moved consistently away from profit motive warfare. I am unconvinced that the current drawdown is sufficient reason to turn back the clock and hire mercenaries and other privatized forces to do the nation’s bidding. I shudder to think the answer is that we can’t afford our strategic goals without resort to mercenary armies.

  5. Tim,
    Thanks. I think it might help if you state which companies you define as mercenary since 2003 – those operating offensively under government contract and not those providing defense security for convoys, foreign officials, etc.
    Claude

  6. For all the so called experts in the industry, here is a pro tip for you!
    when you become compromised, regroup and scrap your mission.

    our security protocol measures have been becoming increasingly ignored, we have way to many high speed persons directing the SOP, and they themselves are acting beyond the need measures creating a situation where the only option is to Kill or be Killed..

    an example: a situation which is very prevalent in the middle east, is IED
    we all know that?? well why was no military service roads put in place?
    why is there strong lack of sally porting/ multiple entry points? where is the inspection stations. i.e x ray, sniffers, dogs. cameras, sure there are some, but are they placed tactically, and is the equipment being calibrated and not broken,, don’t do a box formation out in public,, everyone knows what is going on at that point..

    I have seen time and time and again, where we get way to complacent with our security procedures, we have changed the SOP with our security personnel so much we are lacking in our contingency plans.

    hey , it’s just a simple view of opsec, but when it’s ignored, or compromised, we are leaving the security teams vulnerable

  7. I don’t see how any nation that can run up $17.5T in debt can avoid using mercenaries; a debt this large is brutally stark evidence of the underlying reality, that the political actors in power are willing to sacrifice the future for self-aggrandizing policies. A modern republic might not suffer from this, but clearly human nature has not evolved sufficiently to support one of those.

  8. Honestly this distinction between mercenaries and security guards are funny.
    What is for example the X citizen, who goes into a ship with Panamanian flag, Greek property, with a crew from the Philippines-Ukraine-China etc, with buyers from Korea, loading port in South Africa and destination India;
    For Whom work;
    When piracy started, the unarmed escort groups was the most adventurist part of world history.
    When granted permission for weapons, security teams have adopted tactics and habits encountered on land!!!
    The greatest ridiculousness in the world history!
    Talking about rules of engagement at sea like we’re in any neighborhood of Belfast, Kabul, with elderly – women -children- drunk terrorists and every logical and illogical fellowman.
    Say for example:
    warning fire!
    To whom;
    To him who is in the middle of the Indian ocean with a small boat and comes to your vessel;
    For friendly visit comes;
    Naturally in some parts of the sea needs attention and careful management!
    These points are not mentioned!
    Why;
    -Great topic for debate!!!!!!!!!!
    Thank you very much

    1. It is a purely legalistic document.
      At no point did not interpret the term self-defense!
      Because the self-defense at sea with pirate threat, starts at 950 meters.
      This is the distance from which an RPG-7, self destructive and of course this may be done over my head while I am on the bridge of the vessel!!!!
      Who implements it?
      Nobody!!
      Therefore, the ship should keep a safety distance over one kilometer to avoid this danger.
      Anything violate this distance unreasonably and unnecessarily, is a threat to the vessel especially in the open ocean.
      when the groups were unarmed, no one was talking about the firebombs that were preparing to defend the ship!
      And of course the Molotov will fall onto the decks of the ship.
      Personally I agree with the Russian and Israeli perception of counter piracy by armed groups!
      The pirates are common criminals and dealing with legalistic rules serve a purpose other than the fight against piracy!
      Why not made the same and in Nigeria?????????????????????
      P.S
      Somali piracy simply serve economic interests, which today have fallen especially with the huge involvement of military navies that tilling the Somali coast.
      Also she Somalia now seems not to accept piracy.
      The challenge is to Nigeria and there can not going with legalistic rules of engagement.
      Simple!

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