20 September 2007

From Blackwater to blue water

Ralph Peters has put out an interesting opinion piece of 20 SEP 2007, Lose the Mercenaries, in the NY Post on the Blackwater incident and the Iraqi removing their ability to be used in Iraq. An incident led to a shoot-out and that led to a sectarian hold-over in the Interior Ministry in Iraq to put the kibosh on the use of Blackwater in Iraq. This mostly hits the US State Dept, but also some other private contracting groups as well, that need outside security help to operate. I will let Mr. Peters pick up the basics and trace it back a bit:

Last weekend, a convoy ferrying nervous-Nellie diplomats (do we have any other kind?) panicked. The guards, employed by Blackwater, shot the hell out of civilians going about their business in downtown Baghdad.

Nine dead, two dozen wounded.

Given what we know now, it looks like a war crime.

It's bewildering that our anti-war crowd, while anxious to discredit our troops with lies, ignores the very real depredations of trigger-happy contractors - who don't answer to military discipline.

How did we get to this?

Both Democrats and Republicans under-funded our ground forces for so long that, faced with the demands of counterinsurgency warfare and the occupation of a major country, we just didn't have the numbers or the resources to do the job with soldiers and Marines.

So the Bush administration "outsourced" the work to thugs, vultures and cons. We wasted billions. And virtually every major contract to rebuild Iraq has failed to meet its goals.

And corporations that fail face no penalty. They just get new contracts.
One of the interesting things is that he does mis-state that it was during the Bush Administration when this started. This is done under the auspices of the A-76 system, to find those jobs that do not need to be done by government employees in DoD and that can be outsourced. I have actually seen this system at work, and it is very interesting to see individuals who have worked for 15 or 20 or 25 years at a job in DoD be asked if it can be done by an outside contractor. And such lovely folks that go around with this study, which quickly becomes a 'batten down the hatches, storm ahead' sort of deal. Now, this is not to say that there aren't some jobs that can, in truth, be done and done well by private firms! The long list of things that can be done are: janitorial work, food service, infrastructure maintenance, grounds maintenance.

Really, for such things inside the US, why have a military or civilian employee doing them?

The edge started to come, however, when other things started to go, as well: facility security, personnel security, administrative jobs, and, in my Agency when I worked at it, actual production and technical jobs that were required to meet MILSPEC for things like targeting, Bomb/Battle Damage Assessment, and even edging into R&D. It was outsourcing galore in the 1990's and the worry then, by many on the 'inside' is that the cost of that non-fixed workforce would come back to bite the US hard during a crisis. When losing skilled personnel with a decade or more of analytical experience to contractors and then having a contractor *lose* on the contract who has those individuals, you are then faced with getting green and raw personnel who know very little about the actual jobs in question.

On the larger scale, this entire concept was supposed to improve the 'tooth to tail' ratio in the armed forces. This ratio is the number of combat soldiers (the tooth end) to the number of support soldiers necessary to keep that individual supplied (the tail end). Thus a ratio of 1 : 7 indicates that for each combat soldier, there is an average requirement to have 7 support staff for things like supply, tracking, personnel, etc.

If you want to get meals in the field, that reqires folks to deliver them to the field to be eaten - that is 'tail'.

It reqires folks to move those supplies from central depots to field depots - that is 'tail'.

If it requires long distance haulage from another continent to get to the central depot - that is 'tail'.

There are folks that do the mass requisition of supplies - that is 'tail'.

There are folks that run the supply contracts - that is 'tail'.

Over time the administrative overhead to keep troops in the field has the 'tail' outnumbering the 'tooth'. That number of 1 : 7 was from the mid-point of the Vietnam war where a conscript army, flush with personnel, could afford lots of administrative overhead. Being sent to Vietnam was not necessarily a combat assignment and the number of in-theater troops just keeping things running was very, very high. Much higher than the all-volunteer forces really could endure by the 1990's. Thus the shift from in-house support to contract support, which was given a green light by both political parties.

Even worse is that the State Dept has its own 'issues' with US military security, this from Mr. Peters:
State demands authority, but flees from responsibility. Unable for years to cajole employees to volunteer for Iraq, Foggy Bottom finally made it a career near-necessity to do a few months in the Green Zone. The result? In the less-than-a-day I spent in that fantasyland last month, I heard complaints about junior State types pushing ahead of soldiers in the lunch line. (State employees are more important than folks in uniform, you see.)

Meanwhile, State is building the greatest white elephant in our diplomatic history - the largest U.S. embassy in the world - in Baghdad. Set aside the alleged corruption and incompetence riddling the project: Building a Saddam-style monument isn't just lunatic vanity, it's breathtakingly stupid - it proclaims that we intend to stay and rule.

Couldn't our diplomats try a little humility? Just once?
Yes, the State Dept. wanted its very own military force to protect it. And one held unaccountable, at that. But that is what happens when you 'streamline' the military to get a better tooth to tail ratio: at some point you stop slicing tail and start taking out vital organs. Now Mr. Peters characterizes Blackwater as 'mercenaries', and offers this as a list of recommendations:

Here's the bottom line on all of this:

* If our diplomats can't go to the latrine without an armed posse, State needs to ask Congress for funding to expand its in-house security capabilities. No more thugs.

* We should respect the Iraqi government's decision to give Blackwater the boot. Other security companies might just pay attention and explain to their employees that Iraqi civilians aren't hunting trophies.

* We need to stop the blather about "interagency responsibility-sharing" in occupations. The other guys don't show up, so our troops end up holding the bag. Our military doesn't want to do occupations, but it's the only institution with the essential knowledge, discipline and infrastructure. Get over it, general: Embrace the mission.

We need a clear, single chain of command during military operations abroad. And the big-hat, no-cattle State Department can only have an advisory role.

Our troops have done splendidly, their leaders are doing better and better - and our diplomats still flounder. If we expect Iraqis to clean up their act, let's clean up our own.
I actually agree with some of the outlook, but the points, themselves, need a bit of refining. And for that we need some clarity of how to utilize private armed forces in the service of the US Government. Yes, there is an actual thing that can be done to not only legitimize these forces but, as Mr. Peters wants and I concur, bring them under a 'single chain of command'. What is that thing? Time to look at our favorite, the Constitution of the United States, Article I, Section 8, in part:

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;
Notice the 'Letters' language and the surrounding language? Not only were Privateers utilized as part of the legitimate armed forces of the Union, but they had their own purview for operation and yet still were accountable to military justice for their work. The actual Letters were normally against ships of an enemy, but could also manifest in strikes against shipping, depots, harbors, facilities, and so forth. Thus we have some parts of the US Code that pertain to this, mainly in Section 10, covering the armed forces. One of the more basic is 10 USC 351:
Sec. 351. During war or threat to national security

(a) The President, through any agency of the Department of Defense designated by him, may arm, have armed, or allow to be armed, any watercraft or aircraft that is capable of being used as a means of transportation on, over, or under water, and is documented, registered, or licensed under the laws of the United States.

(b) This section applies during a war and at any other time when the President determines that the security of the United States is threatened by the application, or the imminent danger of application, of physical force by any foreign government or agency against the United States, its citizens, the property of its citizens, or their commercial interests.

(c) Section 16 of the Act of March 4, 1909 (22 U.S.C. 463) does not apply to vessels armed under this section.
Note the 'armed or allowed to be armed' part? That is the ability of the Executive - to protect the Nation, and, in this case, in which an 'agency against the United States' is threating its citizens, and also its government officials. This is any sort of vehicle for air or water transport that can be armed at need.

Ok, just as one of those freebie DLSF things... you could, under this, with the authority of the President have a different sort of craft utilized by Blackwater for their own personnel movement and transport and absolutely, positively, without pause, fit under this! Yes, my Riverine Fighting Force proposal would fit this as those sorts of vessels travel not only on the water but over it as well. Have the President designate armed hovercraft by Blackwater for this, and suddenly, you have a force protection capability that would be fully authorized by the President and right under the chain of command, while still being a contract force. So accountability via the UCMJ would be there as well as civil penalties for any breach of contract sort of deal. That does mean having to develop and build armed hovercraft... but I can think of a few things such vehicles can do and would be immune to that normal ground vehicles are not subject to.

Ok, that ends *that* digression.

What is needed, apparently, is an Act of Congress to actually start bringing these 'mercenaries' into the UCMJ as seen by Douglas Kmiec in his testimony to the Senate Judiciary Committee on 17 APR 2002:
Some have disputed this account of the declare war clause, arguing in support of a congressional pre-condition by reference to Article I, Section 8, Clause 11 which gives Congress the power to “grant Letters of Marque and Reprisal, . . .” This somewhat arcane aspect of constitutional text, however, cannot bear the weight of the claim. Letters of Marque and Reprisal are grants of authority from Congress to private citizens, not the President. Their purpose is to expressly authorize seizure and forfeiture of goods by such citizens in the context of undeclared hostilities. Without such authorization, the citizen could be treated under international law as a pirate. Occasions where one’s citizens undertake hostile activity can often entangle the larger sovereignty, and therefore, it was sensible for Congress to desire to have a regulatory check upon it. Authorizing Congress to moderate or oversee private action, however, says absolutely nothing about the President’s responsibilities under the Constitution.
Indeed, Congress can and *should* have oversight of these private groups brought in to protect the Nation. This is not just security, but combat, which goes beyond chasing down crooks but actually having to fight pitched battles in combat zones. Typically Congress may designate those getting Letters of Marque, and it is up to the President to utilize and deploy such. That is the Commander-in-Chief power so as to not let Congress fight its own private little wars. Such Letters could be specifically drafted for such individuals or companies, laying out obligations, duties and restrictions upon them. That is the 'blue water' part of this, but do note it was not unusual for Privateers to have their own ground forces like Captain Morgan, and utilize them in their Privateering.

While that lineage of forces is nearly forgotten, hearkening back to an earlier era of warfare, it is fully supported by the US Constitution. Enabling organizations to operate as Privateers in defense of the State Dept. is not only fully allowable, but Constitutional. That would then give added resources to the President to contract out such things as physical security while still having military oversight and justice available for said contractors.

I am in full agreement with Mr. Peters that unaccountable forces must be purged from the battlespace. Congress needs to realize that in authorizing the movement of so much in the way of infrastructure to civilian contracting, it has seriously put at peril civilian staff overseas. That has the older remedy of Privateers to 'pick up the slack' for pay, and allows them to additionally point out and confiscate anything the President needs from those enemies that refuse to declare themselves as Nations. Of course that just might make the State Dept. a bit edgy... but no one said being a diplomat was *easy* now, did they?

Unaccountable forces, beholden to neither military nor civil law are not to be used nor tolerated in world affairs. If Iraq has no means to hold them accountable outside of ending their welcome, then it is up to the US Congress to hear from the State Dept. on *why* they need such forces. Congress can then decide to tell the State Dept. to use regular forces, or the Congress can hand out Letters of Marque for operation to such organizations seeking contract work as a military organization and willing to be held accountable to US military justice via the UCMJ. The State Dept. falls under the Executive for operations and the use of unaccountable forces is linked not only to the President, for authorization of same, but to Congress for having laws in place to allow simple security forces to be used in combat roles. Both are at fault and the US should not be using such forces outside of the Constitutional bounds of the Nation.

If they want the contracts, let them apply for Letters so the President can legitimately use them in those roles.

Just realize that for what you get used for can change based on the President's need. It is a very dicey game, this standing up separately for your Nation under arms. One cannot be a law unto themselves in doing that, lest you be looked at as a mercenary predator accountable to no government. That is not to disparage Blackwater, but to point out the problem and how to address it. It is not in the hands of Blackwater, but that of the Nation as a whole.


M. Simon said...

I have read conflicting reports about the Blackwater incident.

I have heard that the civilians killed were not so civilian.

I have also heard that the Blackwater halt was called by a minister sympathetic to Iran.

A Jacksonian said...

I have also read those accounts.

There would be no problem if they were not under direct sanction by the US Government - then their status would not be questioned nor the legitimacy of their actions.

Contracting for security in the US is one thing, doing it overseas for the government is something else, entirely, especially in a combat zone. The law of nations makes distinctions and even mercenaries are to be held under military justice by that. We do not have mercenary forces in the US, but Privateers on 'pay for performance' can be done along with Congressional sanction. The State Dept. either has to live with the US Armed Forces or go for Congressionally sanctioned forces via the Letters. There is no third way in this, that does not end up with armed forces being classified as 'illegal combatants'.

Which *is* what we are trying to end.

Adeodatus, SPQR said...

You may be interested in an article in the new issue of Orbis (journal of the Foreign Policy Research Institute) entitled, "Blackwaters for the Blue Waters: The Promise of Private Naval Companies."

Also, I appreciate your link to Baen Books as I'm a fan of the Honor Harrington series.


A Jacksonian said...

Adeopatus - My thanks!

One of my main views on going after those waging predatory warfare is that the Constitution and law of nations already gives us various good tools to do so. I support the idea of privateers so as to keep those forces accountable and not to be mistaken for the predators they would hunt. I am, of course, in a minority.

I have been a huge fan of Baen's writers and outlook, even when I don't read them all... Drake and Flint have been my mainstays, but the re-print of Laumer's work is, I think, necessary today when we think that diplomats can handle things. Just as valid today as the Cold War, if not moreso.

I thank you for dropping by!

Cannoneer No. 4 said...

Perhaps you would care to comment on SeaWolf's contention that even though we did not ratify the Treaty of Paris, our repudiation of letters of marque in two subsequent conflicts would probably lead a court to find that it was now what is known as “customary” international law binding on the US.

Over at Neptunus Lex

A Jacksonian said...

It cannot be considered 'customary law' as it would contravene the Constitution. Law does not over-ride the Constitution, and the SCOTUS has been most strident, from early on, in ensuring the Admiralty jurisdiction and powers have been fully protected since the founding of the Nation. Some of the earliest decisions to strike down laws were in the Admiralty area, where the SCOTUS would not let Congress try to re-write the powers of the US as a Sovereign nation under the law of nations. That is this thing known as 'precedent' upholding 'common law'. While the early SCOTUS was still feeling its way, it was assured enough in its outlooks to do that for the Nation.

Congress can inform Nations, such as was done in WWI, that the US does not foresee the use of Privateers in a certain conflict, but that is the extent of what can be done.

Laws may not remove the powers that the People grant to government via the Constitution: that requires an amendment or new Constitution via convention.

Additionally Common Law, as far back as the Black Book of the Admiralty as upheld by England before the Revolution, and that has been cited in SCOTUS decisions indicate that the 'customary law' or 'common law' IS the US having this power, even if we use it infrequently since the Civil War. For that you really do need an Amendment as it would be a repudiation of the view of what this Nation can do as seen not only in the Constitution but backed by common law.

I cannot help it if the Congress is so forgetful of their powers that they don't know enough to inform folks of when they are or are not using them. They do not get to step away from such powers as they are handed to them directly by the People of the United States. The folks speaking in the Preamble?

If you want the power gone, it must be removed via the Constitutional pathways for same. Presidents cannot sign Treaties on it, that is a conflict of the separation of Powers. Congress gets to decide application of same, that is the power they are granted and they may not legislate it away as it is a direct power grant in and of itself by the People.

The US is founded on these things, like Blackstone's Commentaries, English Common Law, the Black Book, and the law of nations. They are cited numerous times in SCOTUS cases throughout our history, and because of our Republic and its system of representative democracy, we uphold those foundings and the common law as regards the power of the Nation because it was how Nations were formed and *are formed to this day*. There is documented history of its use, by Congress, and how Congress informs when and when it will not use such powers. Congress has shown no will in informing folks... perhaps it is being cagey in its non-speaking? Perhaps it has gotten sclerotic and forgetful? Perhaps the individuals in it no longer read the document that they swear to?

No matter what the case, the power, itself, is still there. Founded not only in the Constitution, but also in the way Nations were designed when this Nation was founded, and those powers specifically mentioned are the direct powers of the Republic from its People. Nothing trumps that, save the People themselves.

P 2 said...

i dont have a problem with "contractors" for two main reasons:
they are operators that are finally getting paid what they are really worth. everyone expects ideology while they have their hands in the till the whole time.
like its so noble to take it in the checkbook as a Ranger but in the beltway they pay scum socialists through the nose to do what exactly?
secondly it exposes the ruling class for what they are, cowards and hypocrites. they gutted the security services our constitution requires them to maintain and they want to be protected so they just create a niche after outlawing it.
I had a former prof of mine call them "mercenaries" i just laughed my ass off. Youre telling me that all these red pols arent mercenaries for any marxist scheme that gets vomitted from their ranks?

What is the origin of the Warrant Officer? Arent they professionals needed by the services but civilians? Arent they made better than the enlisted by a piece of paper? Can anyone read a history book?

Not only that, but since when are you able to convict BW without any evidence? What proof do you have that they killed anyone without just cause? Why do you instantly take the side of the 'civilians'?
Maybe its because youve never fired a gun in self defense, or left the wire?
Oh maybe I'm just assuming a little too much..

A Jacksonian said...

P2 - I do understand the concerns.

Under the Constitution Congress gets to make the laws governing such, so the question of evidence falls under the UCMJ if the organization is operating as Privateers. As it is State Dept. is trying to get away with forming its own military organization under the rubrik of 'security' while in an active combat zone that means 'combatant'. Any and all complaints go through military channels and justice, which does mean that civilians do get to testify. The UCMJ is set up to handle that.

I am, actually, against that.

Congress should be in the loop for authorizing organizations to provide such work and putting them under Constitutional mandate. I consider the current actions to be questionable, at best, and unlawful at worse.

As Congress gets the war making and lesser Letters language, it is Congress that gets to determine who is able to operate under those restrictions and then allow for the same contract 'pay for performance' work to be done. No one forces an organization like BW to seek out such - if they want the work they should get the burden of the responsibility of being a warfighter. This current work does not have that and that is skating on very thin ice.

As for the rich paying others to do their work: it should be noted that in every draft conducted in the US there has been this problem. That was seen in the Civil War, both World Wars, Korea and Vietnam to the point where the all volunteer concept returned from its hiatus as that is the *normal* mode of operations of the armed forces of the Union. Privateers are also volunteers for more specific work set out by Congress - this was meant as a power for actual combat in situations 'less than war' covering the commerce and high seas powers of Congress or in other cases of going after those waging Private War on the Union.

While we like to think that the draft is somehow 'democratic' it isn't. Only in times of extreme need should such ever be looked at and then disbanded after such need is gone. The Cold War went just fine without a draft military and this current set of dispersed conflicts do not look to require a draft, either. There are, however, dispersed threats in the Private War arena that the armed forces are *not* set up to handle all that well under modern understanding. These lesser conflicts are tailor made for privateers to go after unlawful and, indeed, outlaw organizations that are not Nations making war on the Union.

This is not a question of 'pulling the trigger' or 'personal bravery', but one of ensuring that just means are used to conduct conflicts.

That is your concern, no?

You may not like the powers handed to Congress, but we are wise not to ignore them as they offer ways to protect the Union and enforce the will of Congress to ensure that things are done lawfully. This Congress has been woefully lacking in that and has been in a bi-partisan way for nearly 20 years. The lovely era of the Cold War and major Nation State wars looks to be at a low point, while distributed threats by those unwilling to be held accountable by Nations is on the rise. We have a set of powers and means to address this as that was the way things were when the Nation stood up as a Nation.

I recommend we use the lawful means given to us to conduct our affairs. And get the mercenaries *out* and the accountable warfighters in, be they in the armed forces or Privateers. And there is a large difference between Privateers and mercenaries. Mercenaries can change sides... Privateers become hunted outlaws if they try that. Mercenaries are generally unaccountable, Privateers are accountable. That is why that power is given in the Constitution: it is lawful and accountable.