America Should End Mercenary Contracts (Part II)

April 19, 2014 Guest Author 1 Comment

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).

Current Operations

America Should End Mercenary Contracts

April 18, 2014 Guest Author 3 Comments

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

America Should End Mercenary Contracts

By Tim Steigelman

Over the course of the last decade or more, scholars and pundits have debated the feasibility and legality¹ of employing private military contractors² (“PMCs”) in lieu of uniformed American military forces. What follows will be a two-part post looking at the historical antecedents and contemporary problems with mercenaries.

I. Historical View of Private Warfare

Historical Mercenaries

Mercenaries long predate modern PMCs. Perhaps the best known example from European history is the condottieri, the soldiers for hire who would fight for one prince or another as their paymaster dictated. One well known Florentine had quite a bit to say about condottieri, blaming them for failing to defend Italy against the invading French led by King Charles in the late fifteenth century. He explains the underlying problem:

“if a prince holds on to his state by means of mercenary armies, he will never be stable or secure . . . . Mercenary captains are either excellent soldiers or they are not; if they are, you cannot trust them, since they will aspire to their own greatness . . . but if the captain is without skill, he usually ruins you.”³

Nevertheless, the title condottieri lives on today as part of a PMC trade name.⁴

Mercenary soldiers in America predate the republic itself. Hessian soldiers were famously dispatched from their German homeland to fight George III’s war against the rebellious colonists. This use of mercenary force was such an affront to the political wing of the Continental resistance that it declared King George had transported “large Armies of foreign Mercenaries to compleat [sic] the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.”⁵ Having fought the “large Armies of foreign Mercenaries” himself, George Washington echoed Machiavelli and “warned that ‘Mercenary Armies . . . have at one time or another subverted the liberties of almost all the Countries they have been raised to defend.’”⁶

The American Civil War saw its share of the private hiring of soldiers, albeit not in a classic mercenary context. Previous mercenaries like the condottieri and Hessians were complete units that would be hired to go into combat as a unit. The Enrollment Act of 1863 established a draft for military service, and permitted conscripts to hire a substitute, a person who, for a fee, would take that draftee’s place, allowing the paying customer to avoid the draft.⁷ The Civil War system of substitutes kept the essence of the mercenary relationship—soldiers for hire, paid under a private agreement to fight—but these were retail, rather than wholesale mercenaries. Although the draft was reinstituted for several decades of the 20^th century, it is telling that the substitute system was never reintroduced.⁸

Privateers Profiting from War at Sea

The profit motive once enjoyed a prominent if relatively small role in American military power. At the founding, Congress was (and arguably still is) empowered to issue letters of marque and reprisal.⁹ While no match for a ship of the line, privateers were effective at least as an irritant to British commerce during the revolution.

A privateer was not a pirate because a sovereign nation issued a letter of marque allowing the privateer to take the enemy’s commercial vessels and keep them as prizes.¹⁰ Perhaps surprisingly to a modern audience, the earliest versions of American prize law even allowed American naval officers to retain some of the proceeds of prizes taken by commissioned American warships.¹¹ That profit motive is no longer on the books.¹²

Even so, private, for-profit companies like Blackwater (now Xe), Triple Canopy, and others have provided contract military and related services to the United States. While proponents will point to their successes and opponents point out failings, their efficacy or lack thereof is beside the point. America should not use mercenaries because it distorts the relationship between an elected government and the people by privatizing inherently governmental services.

With this predicate the next post will examine more closely contemporary problems with mercenaries and war for profit.

1. See, e.g., Theodore T. Richard, Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy, 39 Public Contract Law Journal 411 (2010); see also Claude Berube, Contracts of Marque, U.S. Naval Institute Proceedings Magazine, 2007 Vol. 133.

2. The term “contractor” or “military contractor” has been long used in defense circles to encompass much more than the subset of commercial mercenary armies, to include private people and entities of all kind providing goods and services to the DOD under a contract, differentiating “government contractors” from civilian government employees. Take, for example, Edward Snowden, widely and properly reported to be an NSA contractor at the time of his heroic and/or infamous acts. For purposes of this piece “contractor” will be used in the narrower sense of armed private forces, and interchangeably with PMC.

3. Niccolo Machiavelli, The Prince (Peter Bondanella & Mark Musa, eds. & trans.) Penguin Books, 1979, pp. 116-17.

4. Condottieri Contractors. http://www.condottiericontractors.com/

5. The Declaration of Independence (July 4, 1776).

6. Reid v. Covert, 354 U.S. 1 , n.43 (1957)(quoting 26 Writings of Washington 388 (Fitzpatrick ed.)).

7. http://michigan.gov/dnr/0,1607,7-153-54463_19313-125416–,00.html, a Michigan state government website with a good introduction and access to records of principals and substitutes from the Civil War.

8. While the availability of deferments during Vietnam was much debated and reeked of much of the same inequality as directly hiring substitutes, the deferment process at least had the sparing virtue of eliminating private commercial transactions from the process.

9. U.S. Constitution, Article I § 8. The arguable part comes from international treaties and state practice—or rather, lack of practice.

10. See, e.g., The Schooner Adeline, 13 U.S. (9 Cranch) 244 (1815)(a prize proceeding brought by a privateer).

11. See Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).

12. 10 U.S.C. § 7668.

Seamanship and Leadership, The Lighter Side

Our Debating Military: Here, If You’re Looking

April 18, 2014 Guest Author 17 Comments

“Not a military voice is heard calling for thoughtful, substantive change.”

-William S. Lind, “An Officer Corps That Can’t Score”

Will, “hello,” suffice? William S. Lind’s suggestion at The American Conservative Magazine that the Officer Corps is in a blind, intellectual death spiral is weighty indeed, but ignores the vast body of debate going on in the junior and senior ranks of our nation’s military. Rather than our officer corps living in a bubble, perhaps some of those discussing the internal debate of the military writ-large need to reach out of their bubble to see the rich discussion happening -right now-.

“Even junior officers inhabit a world where they hear only endless, hyperbolic praise of “the world’s greatest military ever.” They feed this swill to each other and expect it from everyone else. If they don’t get it, they become angry.”

-William S. Lind, “An Officer Corps That Can’t Score”

Mr. Lind accuses our Officer Corps of a hollow, cavalier attitude that would suggest they neither recognize nor wrestle with the threats of tomorrow or the mistakes of today. Ask any moderately informed officer on their thoughts about cyber-war, the F-35, LCS, insurgency, the utility of carriers, the proliferation of anti-ship cruise-missiles, etc.. and the opinions will be heated and varied. The Center for International Maritime Security has featured an entire week debating the merits of the Navy’s,“Air Sea Battle,” concept. The United States Naval Institute archives decades of articles relating to the debate over carriers. Small Wars Journal is a running testament to the continued debate over insurgency and irregular ground conflicts. There are also sometimes-anonymous outlets, like the Sailor Bob forum, Information Dissemination, or the wild wonderful world of Commander Salamander’s blog; they are quite popular in -light- of the often unique and critical perspective taken by writers.

The self-hate created by my blog's criticism is overwhelming me! — The self-hate generated by my awareness of challenges to US might is overwhelming me!

The majority of these articles are written by officers, with the approval or non-interference of their leadership. Of course, not all military leadership is necessarily embracing criticism, but that is natural to any top-down organization. We’ve made great strides. The Navy released the Balisle Report on its critical issues with maintenance. CDR Snodgrass’ 24 page study on retention is now a topic of wide debate encouraged by VADM Moran, Chief of Naval Personnel. If, as Mr.Lind describes, our officer corps had a comical “hulk-smash” reaction to suggestions of US Military weaknesses or institutional flaws, we’d have long ago beaten ourselves to rubble in the haze of an insatiable rage.

“What defines a professional—historically there were only three professions, law, medicine, and theology—is that he has read, studied, and knows the literature of his field. The vast majority of our officers read no serious military history or theory.”

-William S. Lind, “An Officer Corps That Can’t Score”

Gen. Mattis says we should have a 2000 year old brain... so we can shred triple-neck guitars. — Gen. Mattis says we should have a 2000 year old brain… so we can shred triple-neck guitars.

Mr.Lind suggests that our modern-day officers live in a historical desert, in which the lessons of yester-year are lost. I would suggest those doubters of the military’s historical memory look to the USS PONCE and the Navy’s re-embrace of sea-basing. Thomas J Cutler’s “Brown Water, Black Beret” is an excellent primer on the historical lessons the Navy is re-applying. Perhaps we might highlight the Navy and Marine Corps’ dual scholar-heroes of ADM Stavridis (ret) and Gen Mattis (ret): admired for both their acumen in the field and their rarely equaled study of the history of conflict

Perhaps Mr.Lind is disappointed in our lack of engagement with Mahan, in which case I would direct him to LCDR Benjamin Armstrong’s book, “21^st Century Mahan.” Perhaps Clausewitz is our flaw? The Army and Air Force officers writing at “The Bridge” would likely demolish THAT center of gravity, if the snarky Doctrine Man doesn’t get there first. Perhaps we have not learned the importance of innovation from history! The military’s 3-D printing labs located around the country would likely raise their eyebrows in bemusement.

A Cleveland native myself, I understand how far Hampton Roads is from Mr.Lind’s home on the Northern Shore. However, anyone like Mr.Lind who doubts the military, officer or enlisted, is interested in tackling the issues should make every attempt to visit the June Defense Entrepreneurs Forum (DEFx) Conference in Norfolk. From flag officers to those who paint the flagstaff, the gamut of our service will be on location, out of uniform, debating our technical and institutional challenges in an unofficial and free forum. He may even meet some members of the CNO’s Rapid Innovation Cell (CRIC). If Norfolk is a bridge to far, I’d encourage the doubters to sign up for membership at the Center for International Maritime Security. We have weekly meetings in DC where we talk about everything from Professional Military Education to drone operations.

Courtesy of CIMSEC author, Nicolas di Leonardo.

The military is by no means perfect, but such imperfection is what drives the debate that both officers and enlisted are engaging in on a daily basis. Mr.Lind suggests interesting structural reform to better cultivate leadership in our officers. However he cites the need for such reforms based on a decrepit caricature of an officer corps the US Military is not saddled with. If one hasn’t, as a USNI author once told me, “done one’s homework,” ideas fall flat. There IS a debate happening in America’s Officer Corps, an educational and engaging one. We’re not too hard to find if you look.

Matthew Hipple is an active duty officer in the United States Navy. He is the editor of the NEXTWAR blog at the Center for International Maritime Security, host of the Sea Control podcast, and a writer for USNI’s Proceedings, War on the Rocks, and other forums. He would like to also give a nod to his friends at the Defense Entrepreneurs Forum, The Bridge, Doctrine Man, Athena Project, CDR Salamander Blog, Information Dissemination, Small Wars Journal, CRIC, and others who did not realize that they, like he, apparently do not exist.

Africa, Global Analysis

PMCs: The End or the Beginning?

April 17, 2014 Guest Author 2 Comments

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

The National Intelligence Council’s report Global Trends 2030: Alternative Worlds released in December 2012 revealed trends, game-changers, and potential worlds that have relevance to maritime security. Two of the four mega-trends identified were individual empowerment and diffusion of power. Two game-changers will be a governance gap (or previously suggested maritime security shadow zones) and the potential for increased conflict. It suggests one potential future of a “Non-state World” in which non-state actors take the lead in confronting global challenges. If this is the future, where the power of traditional states erodes or collapses and individuals and illicit organizations are super-empowered, private maritime security companies could be far more employed than they have been in the past decade.

The quick rise of PMSCs in the past decade was due primarily to the threat of non-state actors—in this case Somali pirates operating off the Horn of Africa. Before the shipping industry responded to changes in its Best Management Practices and states began devoting more air and surface naval platforms to the region, individuals identified an opportunity in maritime security and formed companies. Whether they are mercenaries or entrepreneurs can be left to a discussion in the classroom or comments, but the reality is that the immediate threat to shipping was real and growing by 2006.

The companies themselves were analogous to dining in a large city. In the first category are the four and five star restaurants with superior ingredients and preparation, excellent service, but very costly. The second category includes standard restaurants. The third might be diners— affordable food, quick turn-around on service, and a dependable location. The last category is the street vendors. Because they have no infrastructure other than a mobile cart and they may not carry the best ingredients, their costs are extremely low. But there is a market for each of these categories.

The same has been true of PMSCs. Some are highly rated among the industry for the quality of their security personnel (such as former SAS and Navy SEALs), high-performance gear, and company infrastructure. These are the higher priced five-star restaurants. But as the industry emerged, it seemed anyone would join in if they had a cell-phone and an email address. Even experienced, qualified operators made attempts to form their own companies. Peter Cook, founder and director of the Security Association of the Maritime Industry (SAMI) suggested that this is one reason why the number of PMSCs has dropped in recent years as the number of piracy incidents off Somalia have declined. “New businesses fail at a high rate,” he said in a recent interview. “You have operators who might not have the business background necessary to administer all the paperwork that’s involved in setting up and operating a maritime security company.”

According to Cook, the number of PMSCs peaked in 2011 when eleven new PMSCs were applying every month for membership in SAMI. While there were an estimated thirty-five to fifty companies in 2010, SAMI now has about 160 members. The industry became highly competitive and very litigious. With some twenty to twenty-five percent of overcapacity in the shipping industry, shippers are trying to find ways to reduce costs and prices. When threats by Somali pirates resulted in far higher insurance rates, shipping companies reluctantly turned to protection from armed guards. At their height in 2008 to 2009, some PMSCs could charge $5,000 per day for a four-man team; today that price is down to about $3,500. Since, to date, not ship with an armed team has been taken by pirates, that investment more than offset the potential of paying hundreds of thousands to millions of dollars in ransom.

Although some in the industry argue that incidents of piracy remain unreported or underreported in order for companies to avoid higher insurance rates, the fact is that Somali piracy has dropped precipitously. As a result, Cook notes, there has been a major consolidation of PMSCs. That is not to say they will disappear or their work will not expand. To the contrary, they will likely be more necessary in the coming decades for several reasons.

First, long-time state navies with global projection (such as European nations or even the United States) are likely to diminish in size and projection capability due to increased domestic funding demands. Second, increasing competition for scarce resources and changing demographics will lead to greater instability among underdeveloped nations, particularly those along coastlines. Third, greater need for energy will result in more off-shore oil and gas platforms (currently twenty-five percent of all oil and gas platforms are off-shore such as those in the Gulf of Guinea.) Fourth, as one presenter at a recent Naval War College symposium suggested, a greater need for food sources will result in aqua-farming areas. Simply put, less maritime security capabilities by states and increased needs for security will lead to a greater reliance on PMSCs.

What does this mean for the United State? Most importantly, the nation will have to work with the industry in ensuring it is regulated and accountable. With Somali piracy, the country – like many European countries – was opposed to the use of PMSCs or at least did not recognize them. Public officials and senior military now recognize the partial role they have played off the Horn of Africa. The industry has already begun to self-regulate internationally. Operators quickly share information with each other on the reputation of firms and which ones should be avoided. In addition, organizations like SAMI provide standards such as certifications as a vetting conduit between PMSCs and the shipping industry.

In the coming decades, maritime security will be far more complex. Absent sufficient state navies and coast guard forces, PMSCs may well be the only alternative to ensuring platforms and regions have some semblance of security.

Claude Berube teaches naval history at the United Stated Naval Academy and is the author or co-author of several books including “Maritime Private Security” and his debut novel “The Aden Effect.” In December 2013, CIMSEC published his article and interview regarding “Civilian Warriors”. He is the immediate past chair of the editorial board of U.S. Naval Institute Proceedings.

Follow @cgberube

Fostering the Discussion on Securing the Seas.