Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War

127 Pages Posted: 3 Aug 2005

See all articles by Jon D. Michaels

Jon D. Michaels

University of California, Los Angeles - School of Law

Abstract

This article explores ways in which the current delegation of sensitive military responsibilities to private contractors threatens to (1) violate the constitutional imperatives of limited and democratic government, (2) undermine the institutional excellence of the U.S. Armed Forces, and (3) jeopardize the already shaky diplomatic and moral standing of the United States in the eyes of the rest of the world.

Military privatization of combat duties could be used (and perhaps already has) to allow the Executive to operate in the shadows of public attention, domestic and international laws, and even to circumvent congressional oversight. For a variety of political and legal reasons, the Executive might at times be constrained in deploying U.S. soldiers. The public's aversion to a military draft (and squeamishness about soldier casualties), the international community's disdain for American unilateralism, and Congress's reluctance to endorse an administration's hawkish foreign goals might each serve to inhibit the president's ability to use U.S. troops in a given zone of conflict. In those instances, it would not necessarily be the cheaper price tag or specialized expertise that makes contractors desirable. Rather, it might very well be the status of the actors (as private, non-governmental agents) vis-a-vis public opinion, congressional scrutiny, and international law that entices policymakers to turn to contracting.

Accordingly, this article has two sets of aims. On the immediate level, I argue that the privatization of military functions poses a slew of problems too complicated and varied to resolve simply by enhancing accountability controls, strengthening contract laws, and ratcheting up contractor liability. And, more generally, I suggest that military contracting of this sort challenges the conventional wisdom of American privatization policy, which understands decisions to outsource overwhelmingly in economic, cost-saving terms.

Keywords: National security law, military law, privatization, administrative law, separation of powers, constitutional law

Suggested Citation

Michaels, Jon D., Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War. Washington University Law Quarterly, Vol. 82, p. 1001, 2004. Available at SSRN: https://ssrn.com/abstract=764546

Jon D. Michaels (Contact Author)

University of California, Los Angeles - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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