Professional Soldiers Masters Thesis

i

Evolution

of the

Professional Soldier

Private Military Contractors in Iraq

Exam number: B003496

August 19, 2011

Masters of Science International and European Politics

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Abstract

This dissertation will question the perceived roles and responsibilities of the private

military industry in the ongoing operation in Iraq. Much has been said about the potential

dangers of an increased reliance on military contractors and the media has created an

environment ripe for misinformation. Critics of the Iraq War have targeted this industry

to instill that mercenaries are a rampant problem. This dissertation will seek to highlight

the greater context within which these “mercenaries” operate to demonstrate that they are

professional soldiers undergoing an evolutionary process. The dissertation then explores

the contractors on the ground and the framework under which these professionals operate

suggesting a robust framework to mitigate fears of the private military industry in Iraq.

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Dedicated to the 257 American

contractors who lost their lives during the

Iraq War

Table of Contents

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Introduction ..................................................................................................................................... 1

History ......................................................................................................................................... 2 Theory.......................................................................................................................................... 5

Iraq war........................................................................................................................................ 7

Chapter 1: Hamilton’s Empowerment of the State ......................................................................... 9

The Federalist Paper No. 8 .......................................................................................................... 9 The Root of Professionalism ..................................................................................................... 10

Chapter 2: President Eisenhower’s Farewell Address .................................................................. 12

The Military-Industrial Complex Emerges ............................................................................... 12 The End of the Cold War........................................................................................................... 14 The Private Military Corporation Comes of Age ...................................................................... 16

Chapter 3: The Iraqi War .............................................................................................................. 17

Background................................................................................................................................ 17

Revolution or Evolution ............................................................................................................ 18

Chapter 4: Iraq War Accountability, Legal and Ethical Issues..................................................... 29

Evolution in the Fog of War ...................................................................................................... 30

Conclusion .................................................................................................................................... 40 Bibliography.................................................................................................................................. 42

Books ......................................................................................................................................... 42 CBO and CRS Reports .............................................................................................................. 42 Graphs........................................................................................................................................ 43

Academic articles ...................................................................................................................... 43 News Articles ............................................................................................................................ 46 Blogs entries .............................................................................................................................. 46

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Introduction

A tiered layered pyramid view will be used to explore the use of contractors during the

Iraq War. These layers will define the roles and attributes of the American military’s current

composition and framework. The base of the pyramid suggests that contractors have more in

common with their volunteer uniformed counterparts than what is widely perceived in terms of

identity and motivational drive to wage war.

The next layer of the pyramid contains entities and operational structure that act upon

these contractors representing military, business and congressional interests. These military-

industrial complex1 interests ultimately shape the Armed Forces.

The top layer of the pyramid overlays a wartime structure using the Iraq War as a case

study. This layer contains a framework that has evolved to improve the management of private

contractors and to clearly define their mission in Iraq. This paper hopes to provide a better

understanding of the contractor’s roles and responsibilities in supporting the United States to

wage war and identify improvements to the evolving framework to coordinate the use of this

increasingly important wartime resource.

Nature abhors a vacuum; this phenomenon, first observed by Aristotle in Ancient Greece,

applies to how the market views a vacuum today.2 The market will always rush to fill demand,

and thus fill the vacuum. The central argument of this dissertation suggests that the government

is responsible for creating an operational framework for the market that focuses on private

military contractors in the Iraq War. War market demand for business involvement expands

across the entire history of the United States.

Business involvement has taken different forms, from the dramatic rise of the military-

industrial complex to fill the demand for weapons during World War II, to the need for

contractors to augment Americans forces due to cutbacks in the 1990s. What has stayed true is

that when the American government has created the demand for a service the private sectors

1 What started as the influence between business, military and congressional interests in hardware acquisition has become a framework for the both the acquisition of hardware and the creation of the regulations which governs the United States Armed Forces 2 Isenberg, David “A Government in Search of Cover: Private Military Companies in Iraq.” Mercenaries to Market. Chesterman & Lehnardt. New York: Oxford University Press, 2007. pp. 82-93

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rushed to fill it. This dissertation will show two evolutionary time lines of when the market filled

government demand and evolved as the relationship developed. The decision to use a

professional standing army by the United States’ founding fathers evolved into a reliance on the

military-industrial complex through the massive armament process to compete against the axis

powers during the Second World War, and Soviet Union throughout the Cold War. More

recently, it has been used to fill the need for contractors after massive downsizing thus creating

the private military industry. This new industry, born out of need and on the foundation of the

military-industrial complex, has proven to be an integral actor in the Iraq War. The second

evolutionary process has been during the course of the Iraq War. Due to a lack of manpower and

poor planning, the demand was created for contractors which the market readily supplied.

The framework for these contractors and their interaction with the state has evolved and

changed over the course of the war. The relationship has not been without its pitfalls. Legal,

ethical and accountability issues must be overcome. Indeed, some believe that the United States’

monopoly on violence is at risk.3 This dissertation will show that even though issues remain, the

Iraq War has been the perfect example of how the market and state interact and that the

relationship has and will continue to improve.

History

A state should maintain a “monopoly of the legitimate use of physical force”4, and

according to political scientist Max Webber only if it has this monopoly can it be classified a

state. 5 The American founding fathers had a similar belief when they outlined the American

system with built in checks and balances. Whoever controls the agents of violence also controls

the safety of its citizens and its means of war. Therefore, management of the men and women

whose business is violence is of the utmost importance for a state.

For the greater part of the eighteenth, nineteenth, and twentieth centuries, the state has

enjoyed this monopoly. However, for the majority of human history the control of violence has

been much more diffused. Throughout history, the monopoly on violence was controlled by

3 PW Singer “Corporate Warriors.” New Haven: Cornell University Press. 2003. 4 Weber, Max. “The Vocation Lectures.” Rodney Livingstone, Hackett Publishing 2004. 1918. 5 ibid

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various agents ranging from warlords to princes and from lords to generals.6 Ancient Rome

employed contract soldiers to fill its ranks even though at the time they were the model of

professional armies.7 In the sixteenth century Italian theorist Machiavelli pondered on the

privatization of warfare, noting “If anyone supports his state by the arms of mercenaries, he will

never stand firm or sure, as they are disunited, ambitious, without discipline, faithless, bold

(amongst) friends, cowardly against enemies. They have no love or other motive to keep them in

the field beyond a trifling wage.”8

While more focused on direct combat, the idea that individuals hired for a wage were less

desirable than those who fought for a cause turned out to be largely justified. When conscript

armies of France invaded Italy the mercenaries showed a poor record of accomplishment. In

1775 the British army employed 30,000 Hessian mercenaries when it attempted to put down a

rebellion in the American colonies. Almost a quarter of the force was made up of soldiers with

little loyalty to the crown. Soon after the American Revolution another civilian army sent

shockwaves throughout the world when Napoleon rose up to challenge the entire system of

Europe. Only after 12 years of fighting was a coalition of European states able to halt this

‘civilian’ army.9 While this might not have been a culmination event, these two successes of

citizen’s armies meant that the mercenary armies of old were slowly pushed to the peripherals.

Instead, the idea of a professional civilian standing army as the norm emerged. However, two

hundred or so years after the Revolutionary War another conflict emerged for the United States

and it has the potential to be a turning point in the monopoly on violence.10

The current framework the United States uses in its control of the monopoly on violence

has occurred over a long, evolutionary timeframe. The process of the privatization of the

monopoly with the United States has occurred like most things in the military, as an incremental

6 P.W. Singer “Corporate Warriors.” New Haven: Cornell University Press. 2003. Pp. 20-23 7 P.W. Singer “Corporate Warriors.” New Haven: Cornell University Press. 2003. 8 Munkler, Herfried ‘The New Wars’ Cambridge: Polity Press Cambridge. 2002. Pp. 51 9 Committee of Public Safety announced and implemented the levee en masse because not enough volunteers were coming forward. The success of this army led to an increase in conscripted armies around the world, however, it was not the first. See Herman Beukema (1941) ‘Social and Political Aspects of Conscription: Europe's Experience’ Affairs, Vol. 5, No. 1 (Spring, 1941), pp. 21-31 10 P.W. Singer strongly believes that the monopoly of violence is slowly moving from the state towards a more dispersed pattern. This is largely in line with the New War proponents, however, hopefully this paper will demonstrate to the reader that this fear is unfounded and instead the market and military-contractor relationship, though young and still under-defined, is evolving in a direction that will reinforce the monopoly as shown in the Iraq War.

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process. Because of this it is easy for major changes to slowly creep up and take effect without

many taking notice until it is too late. At first the privatization focused on the production of the

means of violence. After World War II this had become the cornerstone of the military-industrial

complex, as President Eisenhower discussed in his farewell address. Because of this a permanent

business interest was brought into the American conduct of war. They remained a powerful force

but relegated to role of production. Private soldiers continued to be active in the world but they

were small and operated in the periphery of the international system during the Cold war. With

the collapse of the Soviet Union the privatization process began to increase throughout the

military in order to deal with the rapid decrease in the size of militaries. This continued the

evolving make-up of the military industry. Then in 2003 a new point in the evolutionary process

was reached. Combat contractors emerged from the periphery of the world and found an

employer in need, the United States government. While direct combat contractors are a very

small part of the overall military-industrial complex they serve as an example of the industries

continued evolution and expansion. Therefore, it is important not to forget that these contractors

subsist as part of a structure that has long been in existence and is continuing to change.

The Iraq War and its use of private military corporations could have a profound impact

on the United States monopoly of violence, as many critics will attest,11 and on the military-

industrial complex. This dissertation will use the contractors to show the evolutionary process

within the military-industrial complex and the possible benefits and dangers that have or could

emerge. The key point being that the private military corporations the contractors serve in are

merely an evolutionary part of the military-industrial complex. If this is true then these

corporations may gain unwarranted influence as President Eisenhower warned but it is also true

that these professional soldiers, or contractors, would not be revolutionary. One in ten military

personnel was a contractor in the beginning of the Iraq War. Since the summer of 2010 their

numbers have exceeded deployed military ground forces. While not mercenaries in the

traditional sense12, each is taking an active role in the waging of war and doing it for a profit. A

legal, operational and ethical framework has had to evolve to meet these new contractors in order

11 P.W. Singer (2003) ‘Corporate Warriors’ Postscript: The Lessons of Iraq. 2011. Pp. 242-260 12 Some of the contractors are foreign nations (not from a country taking direct part of the conflict) and are armed, however they are a small group from nations like India, Fiji and are almost exclus ively used in base defense. This is why most of the instance of contractors coming into hostile contact, like Blackwater, are British or America contractors because they dominate the convoy protection contracts and other more dangerous mission contracts.

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to moderate and evaluate their actions. The American public and media are not familiar with

these types of actors leading to misperceptions and uncertainty in how to react to this new breed

of professional soldier. This is where comparisons to mercenaries have led to misinformation.

The evolutionary process is also far from over in Iraq, and there are still changes to be made and

improvements to be made. However, what certain is that they are here to stay and there is

nothing radically new about their arrival.

Theory

Some scholars believe we are at another revolutionary point similar to Europe and

America in the early seventeenth century and the nature of warfare itself has reached a point

where it has fundamentally changed; at the very least it has changed from what has been the

norm for the past few centuries.13

When observing changes in the appearance of war, such as privatization and contractors,

it can be misconstrued as a fundamental shift when in fact the conduct of war has experienced

evolutionary and incremental change. Instead, it may only apply to certain geographical and

economic regions and certain levels of the theater of operation (lower levels while the higher

commands stay relatively the same). This applies to others such as William S. Lind who claims

that “future war will be different from the past” and this is premised on the perceived decline of

the states control on the monopoly of force.14 Mary Kaldor, who introduced the idea of New

War, also expands on this idea of state decline with the idea that overall war is becoming “highly

decentralized”15. When viewing the Iraq War, and its use of contractors, for a brief period it was

decentralized (during the chaos due to poor planning). Soon the market and the state eventually

evolve to solve the problem. While using these theoretical arguments can be helpful for

understanding conflict and changing patterns in its conduct, it is important not to leap to

conclusions. When viewing the Iraq War it should have been the perfect moment for at least the

continuation of the supposed weakening of the state and emboldening of the private actors.

13 This theory began under Mary Kaldor and has been further by academics like Herfried Munkler. Sarah Percy and William S. Lind. For further information please see Mary Kaldor’s New and Old War, Munkler’s The New Wars and Creveld’s The Transformation of War. Each of these books proposes a change in the nature war and on Creveld in particular attacks the use of Clausewitz to view modern conflicts. 14 Fleming, Colin (2009) New or Old Wars? Debating Clausewitzian Future The Journal of Strategic Studies Vol. 32, No. 2, 213-241 April 2009 15 ibid

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However, the opposite has occurred and this paper will demonstrate this using the war in Iraq.

However, the appearance in which America wages war may have changed, the nature of war and

the United States control on its military is resolute.

This is the theory discussed by Herfried Munkler in his book The New Wars. He admits

that that the term ‘new war’ might be disingenuous and instead might be closer to classical wars.

Whatever they are called the idea is simple, these scholars believe that war has changed from

what has been a constant for the past 200 years. Within this theory attention is given to the idea

that economics have changed the nature of war. The commercialization of war and of military

force has led to the loss of the states monopoly on military force.16 War has reached a

revolutionary point where an identifiable break with the past can be made with theorists like

Clausewitz, who advocated war is politics by other means. Munkler says this is because war is

no longer politics by other means, but instead has become a realm upon itself. However, the case

study for this dissertation, the Iraq War, shows that war is still politics through other means.

President Bush viewed the Iraq War as a continuation of his policies after diplomacy had failed.

The idea that the conduct of war has changed due to commercialization can be helpful

when viewing the military-industrial complex. However, in regards to this paper the new war

theory runs into problems. Most of Munkler’s efforts focus on the third world or developing

world, states that do not have the rule of law or power to insure a states continued monopoly on

violence. Therefore, even if war has changed in the less developed states, war has not changed

for the United States. While Munkler focused on the economics of the perceived changing

dynamics of war, he was building upon works by other academics, such as Creveld and Kaldor.

These authors also argued that the traditional Clausewitzian way of understanding war was

obsolete. These authors see a revolutionary event occurring in warfare that will create a

marketable change from not just previous conflict but previous ways of understanding conflict.

“Clausewitz informs readers that war’s nature should not be confused with the way it looks. That

it alters its appearance and character ‘to a given case’ is unimportant. The unifying element that

ensures the universality of the nature of war has nothing to do with the way war is conducted.”17

16 Munkler, Herfried (2002) ‘The New Wars’ Cambridge: Polity Press Cambridge. pp. 16 17 Fleming, Colin (2009) New or Old Wars? Debating Clausewitzian Future The Journal of Strategic Studies Vol. 32, No. 2, 213-241 April 2009

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This is an important observation not just for debating the nature of war but all observations of the

Iraq war.

Iraq war

Using Iraq as a case study, this dissertation shows that the United States has changed how

it wages war, not in who wields control. Instead of checks and balances and absolute civilian

control, a new relationship has emerged. Business, military and political interests that make up

the military industrial complex, about which President Eisenhower warned, have filled a void

with a framework that does not hold true to American values and principals. This framework

focuses power with the executive, financials with the Department of Defense and State and lacks

a clear legal framework that is required when overseeing the industry.

The words of America’s founding fathers must be invoked and a new private and public

framework must emerge based on checks and balances and civilian oversight of the armed force.

This framework should consist of a legal framework lying in the judiciary and subject to the law.

It should consist of a financial framework with the power vested in the legislative branch.

Finally, orders should be more clearly defined as the realm of the President, and be beholden to a

similar command structure as their uniformed counterparts.

The threat of private military corporations is not changing the nature of war but rather

potentially changing the nature of how war in America is conducted. It must be remembered that

private military corporations are an evolutionary child of the military industrial complex, born

out of necessity and demand, as well as a more globalized strategic environment. This has been

an incremental process spanning decades built on successes and failures. This process does not

imply revolutionary change; a draw down in operations and or an increase in funding for

uniformed soldiers potentially could stop this evolution from becoming anything more than a

blip in United States military history.

The dissertation will use the following structure. Chapter one will demonstrate the historical

roots of the use of professional soldiers that the American military was built upon. This

foundation and belief in professional soldiers is important when viewing contractors as they are

more evolved from this idea then the mercenary culture of Europe. Chapter two will discuss the

foundation of the military-industrial complex using President Eisenhower’s farewell address.

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The creation of this permanent arms industry laid the second piece of foundation in the

evolutionary arc. Chapter 3 brings the reader to the Iraq War. This chapter provides context

about the war and about the contractors operating on behalf of the United States. Chapter 4

discusses the evolutionary process that occurred during the war in terms of framework, legal and

ethical issues. This chapter shows how the market and government evolved together to meet the

challenges of the Iraq War.

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Chapter 1: Hamilton’s Empowerment of the State

The idea of an evolutionary process is important when thinking about the private military

industry and influences acting upon it. Military contractors discussed in this dissertation

operating in the Iraq War are influenced by two very important and powerful forces – the identity

of the professional soldiers waging war and the framework in which these soldiers operate.

Therefore, they are bound to changes that have occurred in who the United States uses to wage

its wars and the make-up of the military industrial complex, which influences the structure of

those who wage war. A historical background and major events to reach the potential critical

point, which is the Iraq War, is therefore an essential beginning point.

The United States and its interactions with its military predate the adoption of the term

“military industrial complex”, which was first coined by Eisenhower (1961).18 He focused on the

new sheer size of the threat posed following the buildup in World War II. America’s founding

fathers were also greatly concerned with the military’s size and questioned having a standing

army at all. When the colonies began forming a continental army in 1775 they were well aware

of possible dangers of a standing army. These fears were fleshed out well after the fighting was

done and success was at hand. In 1787, a clear hierarchy was created in the United States

constitution giving the President, a civilian post, powers as the commander in chief; but even this

mandate was deemed as possibly not going far enough. Many architects of its creation and

founding members of the original cabinet wrote about the dangers the military posed to the state.

Alexander Hamilton, the first Secretary of Treasury, laid out many of these concerns in

Federalist Paper No. 8

The Federalist Paper No. 8

The perpetual menacings of danger oblige the government to be always prepared to repel

it; its armies must be numerous enough for instant defense. The continual necessity for

their services enhances the importance of the soldier, and proportionably degrades the

condition of the citizen. The military state becomes elevated above the civil.19

18 Eisenhower D., Dwight “Eisenhower Farewell Address.” 1961. 19 Hamilton, Alexander (1787) ‘The Consequences of Hostilities Between States’ Library of Congress

http://thomas.loc.gov/home/histdox/fed_08.html

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The fact that the founding fathers were concerned about encroachment by the military into

civilian matters is a key concern that echoes today in Iraq. This was the first discussion of the

civil-military relationship in the United States and of concerns with a standing army. This

dialogue has evolved over the past 235 years, but the fundamentals have essentially remained the

same addressing the country’s desires from its military and how the country wishes to interact

with it.

While the early Americans could not foresee future conflicts or technological advances,

they could foresee potential pitfalls that have remained true throughout the centuries. The

dialogue that is presented in the Federalist Papers occurs between Madison and Hamilton and is

in reference to the new constitution of the United States. The Federalist papers and ideas

discussed inside them highlight the real fears that many early Americans had when trying to

create a union. Hamilton continued to discuss how America should approach its own military

structure, “The effectual truth of modern commercial republics is that they require professional,

reasonably well-paid soldiers because no one else in such republics is willing to spend a lifetime

preparing for war.” 20

The Root of Professionalism

Professionalism therefore became the foundation of the America military. These

professional soldiers would allow the majority of the “commercial republics” citizens to continue

to pursue other avenues not burdened by military service. This is in contrast to conscription used

during Revolutionary France or other conscription services that still operate today.21 With the

use of professionals instead of conscripts came the danger of removing the military from the

civilian world. Hamilton wrote that a standing army was a possible engine towards despotism;

therefore, strong civilian oversight was needed.22 This was advocated in the Federalist papers

and enshrined in the constitution that civilians would have absolute control of the military

through the Secretary of Defense and President.

20 Hamilton to John Dickenson, 25-30 September 1783, Papers, 3: 454; Walling, Karl (1995) ‘Was Alexander Hamilton a Machiavellian Statesmen’ The Review of Politics, Vol. 57, No. 3 (Summer 1995), pp. 437 Federalist,8 : 47; Federalist2, 4: 156-57

21 Many countries continue have conscription to this day. http://www.nationmaster.com/graph/mil_con-military-conscription

22 Cook, Martin ‘Moral Foundations of Military Service’ Parameters, Spring 2004, pp. 117-129

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There is still the risk that the military can view itself as morally superior to the civilian

structure it is in charge of protecting and the control might become lax.23 The preservation of

civilian control and a robust system of oversight becomes important in keeping a professional

standing army. Unlike a citizen force the distinction between a professional force and uniformed

soldier becomes somewhat blurred as both are professionals specializing in an aspect of war

while operating under civilian control and oversight. The main difference is the uniformed

soldier draws on a historical background of the conscripted soldiers of the Civil War, World War

II, and Vietnam. The contemporary uniformed soldier shares more in common with their private

military contractor brethren than with the citizen soldiers of the past. Motivation, identity and

state representation separates professionals from citizen soldiers.24

The motivation for a citizen soldier is the state’s obligation to fight for a cause, differing

from current volunteer soldiers who fight for monetary gain, career incentives, personal

challenge or patriotism.25 These motivations are more in line with citizen contractors than the

obliged conscripted soldiers of America’s past. True citizen armies would also represent the

identity of the state equally however far more of the volunteer army is made up of the poor and

minority.26 The last difference is identity. For past citizen soldiers their identity was still civilian

and the military was only a passing phase. For the volunteers of today, much like their contractor

counterparts in the private military industry, the military is their life. This created the foundation

of the United States military, a professional all volunteer standing army which America relies on

to wage its wars. The military’s supporting framework has evolved through major evolutionary

events such as the decision to rely on professional soldiers and the dramatic increase in the role

of business in the art of war: the military-industrial complex.

23 Cook, Martin ‘Moral Foundations of Military Service’ Parameters, Spring 2004, pp. 117-129 24 Cohen, Eliot ‘Twilight of the Citizen-Soldier’ Parameters, Summer 2001, pp. 23-28 25 ibid

26 ibid

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Chapter 2: President Eisenhower’s Farewell Address

The industrial-military relationship in the United States has evolved since America’s

initial founding to meet new challenges and threats posed by large and powerful militaries. This

evolutionary process resulted in a larger influential military. The process was slow but World

War II provided a second major turning point.

The massive build-up of military power needed to combat both the Japanese and German

forces on two different continents required retooling the American economy, expansion of the

military, as well as a massive arms procurement strategy. Even after victory the military did not

return to pre-War War II spending levels.27 After a brief post-war dip spending remained much

higher due to the Cold War and Korean conflict.

President Eisenhower had a perspective on the military build-up much like that of

America’s founding fathers in regards to the creation of a standing army. Being in a position of

power during revolutionary moments these men gained an important and credible perspective.

President Eisenhower warned us of the Military-Industrial Complex and the congressional,

military and business interests shaping the military and its structure. This structure is what

eventually evolved into what we call the private military industry 60 years before the Iraq War.

The Military-Industrial Complex Emerges

President Eisenhower had a unique perspective on the military-industrial complex due to

his time as the commander of military forces in World War II. A little known period that also

shaped his perspective was the two years he spent on the War Policies Commission28 where he

studied industrial mobilization for war and profiteering. He distinguished himself with an eye for

detail and this gave him his first introduction in what would become the military-industrial

complex. It is fitting that someone who rose to the highest echelons in the military and politics

choose to discuss this matter in his farewell speech.

27 Graph 2 shows spending levels from 1962 onwards, however the farewell speech of President Eisenhower occurred in 1962. When President Eisenhower took office spending levels were 11.7% due to the Korean War, down from 34.5% eight years earlier at the conclusion of World War II. While levels would drop at the end of the Korean War they were higher than the 45 year 5.5% average.

28 Ledbetter, James “Unwarranted Influence.” New Haven: Yale University Press. 2011.

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“In the councils of government, we must guard against the acquisition of unwarranted

influence, whether sought or unsought, by the military-industrial complex. The potential

for the disastrous rise of misplaced power exists and will persist.”29

President Eisenhower’s focus on the newfound influence of war related business included

the loss of potential gains in other areas of business because of a switch from “plows to swords”.

The influence politicians, businesspersons, and military professionals began to exert on each

other posed potentially dangerous consequences, not just to a functioning American military, to

the Republic at large. “Eisenhower had begun to see private military contractors as self-

interested, malign actors in the budget process”30and that it “creates wasteful military

spending.”31 The idea that private actors and the increased use of contractors are counter-

productive and lead to wasteful spending carried through to the Iraq War.

The foundering fathers, in particular Secretary Hamilton, had foreseen the dangers of

having a standing army. President Eisenhower saw the dangers of a standing army becoming

unwieldy and prone to the influence from surrounding forces. These two great statesmen,

separated by 174 years and lived in very different environments, brought to light a very real

danger to the foundation of the American system. The notion had moved beyond the civil-

military relationship to include the civil-business-military relationship.

For the 50 years following President Eisenhower’s speech the military-industrial complex

continued to grow and evolve. With the Cold War ending the military was downsized, however,

its influence within the halls of politics remained. The size of the military, rather the structure,

was no longer a problem. Solicited or not the influence had become a part of the system just as

President Eisenhower had warned. If this influence serves to improve the military’s framework

and structure then the fears of unwarranted influence would be unfounded. However if this

influence is used to weaken the framework used to control acquisitions and the use of contractors

then it could prove dangerous. The end of the Cold War and the downsizing of the military

meant any negative influence towards a weakened framework would become even more evident

if the reliance of contractors increased.

29 Eisenhower D., Dwight (1961) ‘Farewell Address’ http://www.ourdocuments.gov/doc.php?flash=true&doc=90 30 Ledbetter, James. “Unwarranted Influence.” New Haven: Yale University Press. 2011 31 ibid

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The End of the Cold War

The Cold War’s ending meant a new beginning for the military. While some heralded it

as the “end of history”,32 it was merely the beginning of a new chapter. With the changing

strategic landscape new enemies have emerged and the political landscape of the Cold War has

disappeared, the military-industrial complex has continued to grow and expand its influence. To

argue that the expanding size and budget of the military is raising the military-industrial

complex’s influence simply contradicts the numbers.33

The defense budget as a percentage of the gross domestic product has actually decreased

since the Cold War. Following World War II, spending levels were forced to stay high due to the

Cold War and commitments overseas. Spending remained mostly above 8% of GDPA for most

the 1960s. Spending spiked in the 1970s due to the Vietnam War which as a percentage of the

American economy continued downward. An upward tick occurred again in the 1980s due to

President Reagan’s massive armament push along with the recession induced increased

spending. The two factors lead to a visible increase: 4.7 to 6.2 percent of GDP.

Defense spending per GDP returned to lower levels and during the 1990s remained between 3-

4%. Even with President Bush’s build-up for the War on Terror spending per GDP remained

near 4%; similar to early 1990s. A higher percentage was reached recently due to operations in

Afghanistan and Iraq; still only 4.7% of GDP and well below 1980s levels. Therefore, the

amount America spends on defense cannot be the only reason for the growth of the military-

industrial complex. These numbers also show one of the reasons why privatization has taken on

new meaning.

With historically lower levels of spending during wartime the defense department lacks

the resources to carry out a war on its own, let alone two wars. This has meant that using

privatized resources, when its military equivalent is not available, has become a part of the

military apparatus. Thus, the demand was created and the market moved in to fill the vacuum.

This market is severed by the Private military Industry.

32 Francis Fukuyama. ‘The End of History?’ The National interest. 1989. 33 See graphs on page 15

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Graph 1: United States defense spending during armed conflict

Graph 2: The United States Defense Budget as viewed as a percentage of the gross domestic product

Graphs provided by Heritage Foundation, http://blog.heritage.org/

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The Private Military Corporation Comes of Age

The private military industry within the military-industrial complex has been taking

shape this last decade as spending has decreased and the role of commercial partners has

increased. When viewing the industry it is important to break down what the industry is actually

participating in and the extent of its participation. When a war is declared the area is titled the

theater of war. Within this there is the larger theater of operations and the smaller area of

operations. As we move closer to the actual area of operation the role of private personnel

diminishes as the role of the regular military increases. In terms of the actual companies who

make up the industry it can be viewed as a spear. The closer to the tip one gets the closer to the

actual combat a company and its contractors get. 34

Military support firms give non-lethal aid and assistance consisting of usually larger

companies that provide food servicing and transport. The next step towards the tip is the military

consultant firms providing advisors and training. The final level is the military provider firms

which specialize in implementation and command, or the tip. This group contains the most

controversial elements and actors, such as Executive Outcomes and Blackwater.35 This was the

general structure of the industry and its members before the outbreak of Operation Iraqi

Freedom. While the overall framework has stayed the same, some of the names have changed

and companies within have shifted around to find the niche where they are most competitive.

These companies were laying the groundwork to compete in the emerging private

military market created due to the massive downsizing after the Cold War. The industry however

was waiting for a moment that would allow these companies to become an integral part of the

war effort and prove their worth to the Pentagon and American people. This moment occurred in

2003 with the launching of Operation Iraqi Freedom or the Iraq War. This war, and the levels in

which contractors are relied upon, will most likely reflect how America will conduct military

operations for the foreseeable future. Through the war’s ups and downs the contractor’s failures

and successes proved to play a key part in the war effort.

34 P.W. Singer “Corporate Warriors.” Ithaca: Cornell University Press. 2003. Pp. 92-93 35 ibid

17

Chapter 3: The Iraqi War

Background

All wars are controversial. The images a war brings to bear invoke some of the worst

periods of human history; trenches of World War I, bloody beaches of World War II, and bombs

dropping on villages in Vietnam. Attempts to mask conflict and armed violence as peacekeeping

operations matters little for the soldiers and civilians who pay the ultimate sacrifice. Therefore

the exact name of the ongoing conflict in Iraq, while carrying emotional weight, doesn’t impact

the focus of this paper. If it’s the Iraq War, Operation Iraqi Freedom or the Gulf War II it is an

ongoing conflict between American military ground soldiers and the established enemy

insurgency. For the purpose of this paper it will be referred to as the Iraq War.

Beyond the name, the reasons and motivations behind the Iraq War are also controversial;

and have been widely discussed. Research for this paper revealed an overwhelming amount of

bias and personal feelings towards the Iraq War. This was expected for an ongoing war that was

controversial in its purpose and conduct. It has been difficult at times to move past the bias and

get to the core problems of not just the Iraq War but more importantly for the contractors

participating in the conflict and what they mean for the future of the American military. It is my

hope that this paper will help tear away some of these misperceptions that have been created as

the fog of war has crept closer to home.36

Two hundred and sixteen years after the publication of the Federalist Papers, and forty

two years after President Eisenhower’s farewell address, another crucial point was reached in the

evolution of the United States military. The build up to the war began slowly over the twelve

years after the conclusion of the Gulf War. For twelve years after that war President Saddam

Hussein continued to defy American wishes and increasingly became a pariah on the

international stage. The United Nations Security Council adopted Resolution 1441 demanding

that Iraq end all weapons programs related to weapons of mass destruction and allow for

36 Fog of war is a term originally coined by Carl Von Clausewitz, for more information please see Kenneth, Carl. “Warheads: Cable News and the Fog of War.” Annapolis: Naval Institute Press. 2006.

18

inspections. The United States deemed Iraq uncooperative and in breach of the resolution and

gave Saddam Hussein and his sons a deadline to leave.

Upon the passage of this deadline the operation commenced on March 19, 2003.37 The

lightning fast invasion of Iraq drew comparisons to the Gulf War in both its success and speed.

The differences between the wars included the size of the American invading force which was

actually smaller in 2003 and in 2003 US and coalition partner forces were required to occupy the

country. This new approach was controversial and would have lingering effects that led to many

ups and downs.38

Revolution or Evolution

The Iraq War has undergone its own ups and downs and its own evolution. As the

conflict progressed contractors on the ground have had to cope with the demands of a dynamic

environment. The roles of contractors in Iraq began traditionally by focusing on logistics and

support; the back end of the spear. Contractors from the onset of the war gained an increased role

based on experiences gained in the former Yugoslavia, training Iraqi forces and supplying

America soldiers.

The security vacuum that existed in Iraq soon became apparent with the increased

violence and instability. The lack of troops due to the initial planning stage and overall size of

the military led to an important evolutionary, if not revolutionary, moment for the private

military industry and the military-industrial complex at large. The demand for contractors,

including those at the tip of the spear, to fill the security vacuum was created due to planning

mistakes by American leadership.

This idea of a vacuum is important because the lack of uniformed soldiers created the

demand for “dangerous” contractors. Without the vacuum the demand for contractors would

never have existed and therefore the private sector would have remained confined to roles

traditionally given even though small inroads may have been gained due to the evolutionary

37 Copson, Raymond. “Iraq War: Background and Issues Overview.” Congressional Research Service. 2003 38 For further information on mistakes made in the Iraq War please see Fiasco: The American Military Adventure in Iraq by Thomas E. Ricks

19

nature of privatization. Troop numbers reflect this vacuum as well as accounts by the leaders

who were instrumental in both planning and implementation.

The numbers on the ground show how important contractors have become in the Iraq

War and beyond. In 2009 The Department of Defense hit a milestone when the number of

contractors operating in both Iraq and Afghanistan surpassed those of uniformed personnel. The

gap increased in 2011 when 155,000 contractors were employed compared to 145,000 men and

women in uniform. 39 Afghanistan and Iraq show two different stories. Afghanistan still has a

clear majority of uniformed personnel due to the recent surge of uniformed forces though the

number of contractors involved is still higher than in any previous conflict.

As of March there are nearly 65,000 contractors operating in country compared to only

around 46,000 uniformed personnel. 40 This is why the Iraq War was chosen for this paper as the

ideal example of the evolution within the industry and as a possible revolutionary moment in

how America conducts its military operations. Around 20% of the total Department of Defense

obligations for Iraq were for contracts for a total of $112 billion from 2005 to 2010. The

Department of Defense admits that these numbers could actually be much higher due to

accounting oversights.

In terms of the percentage of the overall workforce Iraq and Afghanistan are closely in

line with the last major American engagement in the Balkans when around 50% of the total force

was comprised of contractors. The numbers suggest an increasing difference in the percentage of

contractors to uniforms and an increase in contractor’s proximity to combat. This means that

while the ratio for the overall war is only .5 to 1, it has increased to the current ratio of 1.48 to 1

for Iraq. 41 While viewing uniform to contractor ratios it’s important to see the trends of a rapidly

changing structure.

Since December 2008 the military and private industries have slowly decreased forces as

operations declined with the number of contractors fluctuating more than uniformed personnel.

In June 2010 uniformed personnel, due to a large draw down, saw a massive dip while

39 Schwartz, Moshe & Joyprada Swain (2011) ‘Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis’ Congressional Research Service 40 ibid 41 ibid

20

contractors maintained a more gradual draw down. Today both resources have leveled off; due to

the large military personnel decrease contractors still outnumber their uniformed peers. The

ongoing debate of how many American soldiers will maintain a presence will have an impact on

this ratio. As soldiers are withdrawn the supporting number of contractors will decrease too.

Sixty one percent of contract work is based on troop support and as the number of

soldiers decrease contractors numbers will follow suit. Eighteen percent of contractors work in

security related jobs including protecting military bases, VIPs, construction, aid workers, media

and other similar tasks. The draw down will continue as base security is no longer needed.42

Therefore 80% of the contractors are directly involved in support type duties for the Department

of Defense. Private security contractors represented only 10-15% (depending on the source) of

the total personnel in Iraq. Therefore, the vast majority of the work is still concentrated away

from the tip of the spear which is how personnel resources are distributed today.43

From 2003 to 2008 contractor levels were much higher. Before the current rate of around

65,000, there was more than double that number during the surge. 164,000 contractors were

employed in the summer of 2008. When viewing nationality numbers a different story emerges

the further back one goes. While only 9,000 local Iraqi personnel are now considered

contractors, that number was as high as 82,000 before the ‘surge’. While the number of

Americans and third-nationalities increased rapidly during the ‘surge’, the only group to decrease

was the number of employed Iraqi personnel.44 These numbers represent the end of a story that

has evolved over the last 8 years. They show the draw down that is occurring and that has been

occurring since the end of the 2008.The story concerning the build-up of Iraqi personnel from

2003 to 2008 is one of failure and adjustment.

Under the lead of General Tommy Franks, 150,000 troops in the south and another

90,000 in theater were deployed for Operation Iraqi Freedom and the beginning of the ground

invasion of Iraq. 45 This would be a third of the force used in the Gulf War based on the Powell

42 Though a sizable number of contractors will have to be maintained to protect State Department assets as uniform personnel will be unable to do so. 43 ‘Contractors’ Support of U.S. Operations in Iraq’ Congressional Budget Office. 2008. 44 Schwartz, Moshe & Joyprada Swain (2011) ‘Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis’ Congressional Research Service 45 President Bush’s autobiography provides a fascinating account of the lead up to the Iraq War and internal discussions that were ongoing as to not just the tactics of the war but the potential aftermath. In his

21

doctrine.46 As soon as the invasion was complete, a transitional government was set up under the

leadership of the Coalition Provisional Authority led by L. Paul Bremer. It is at this transition

that two important events occurred that would lead to the rise in demand of not just more

uniformed personnel but contractors as well.

During this initial phase U.S. troops on the ground actually began to withdraw, going

from 150,000 to around 110,000. This was accompanied by the decision by L. Paul Bremer to

disband the Iraq army and former Bath officials. Therefore the security vacuum was

accompanied by a political vacuum. 47 President Bush states “In retrospect, I should have insisted

on more debate on Jerry’s orders… I’ve spent a great deal of time thinking about what went

wrong in Iraq and why. I have concluded we made two errors… the first is that we did not

respond more quickly or aggressively when the security situation started to deteriorate… cutting

troops levels too quickly was the most important failure of execution in the war.” (President

Bush 2011).48 Whether the mistake was with President Bush, his generals or Bremer is irrelevant

for this paper. What is relevant is that a vacuum was created in the security arena due to a lack of

ground forces and thus an increase was needed. Therefore the idea of the surge was created.

From 2003 to 2004 there was a draw down in forces in Iraq following the initial planning

and execution for the war. Once the security vacuum was created, changes had to be made to the

war’s planning. An increase occurred to raise the troop levels from 110,000 to 160,000 from

2004 to 200549 in order to try and secure the security vacuum. This followed by another draw

autobiography, Decision Points, President Bush states that General Franks and Secretary of Defense Rumsfeld agreed that a smaller force was desired as not to give Iraqi’s the impression that the force was an occupational force, instead they desired it to be viewed as only transitional force. This is the reason for the low level of soldiers in the beginning of the war. 46 President Bush also clarifies that Secretary of State Colin Powell, who orchestrated the last invasion into Iraq in the Gulf War, advocated larger troop numbers on par if not larger then were used in the Gulf War. He came into disagreement with standing military advisors who viewed that this would be more of a lightning strike and large troops numbers were not just unneeded but unwarranted. 47 President Bush notes that the decision to disband the army was one of the key mistakes, he views, in the execution of the Iraq War. His view on troop levels is less clear as he states he only followed the suggestion of his Generals and they recommended the draw down. 48 While this is the issue President Bush puts more emphasis on, others have put focus on the decision to carry out a policy of de-Bathification, which resulted in the purging of the military. 49 Part of the reason for this surge directly ties to the use of contractors. Though a security vacuum was the overarching issue the catalyst for the massive surge was the Battle for Fallujah. This battle began with the murder of four Blackwater security guards protecting a food convoy. Due to the horrific scenes marines were sent in the city which set off a wider escalation that led to the need to increase troop levels. Chan, Sewall (2004) ‘U.S. Civilians Mutilated in Iraq Attack’ Washington Post

22

down in 2006 as the insurgency from the former Bath and Sunni insurgents subsided. However,

in 2007 another surge was needed to return the levels to the 160,000, and more, after instability

increased and a new security vacuum emerged. This creates a graph that is in constant flux,

consistently moving up and down. This constant flux in troop levels changed in 2008 when the

troop levels continued to decrease at a constant pace to the current levels of around 40,000.50

The overall use of contractors, both in terms of the numbers and the actual mission, goes

through a transformation during the Iraq War. In the beginning of the war the clear majority of

the boots on the ground were uniformed personnel. These were augmented by a smaller number

of logistics and support staff. However, as soon as a permanent presence is required, just as in

the Balkans, a massive private force is also required. The numbers between 2003 and 2007 are

murky to nonexistent due to the simple fact that no overall census was conducted. Many times

contracting companies were required to report hires yet locals weren’t counted towards total

contractors. This created a knowledge vacuum for the Department of Defense in its management

of the war and of its personnel as well as for observers.

On May 16, 2006 Robert A. Burton, Deputy Administrator of the Office of Federal

Procurement Policy, issued a memorandum requesting that the United States Central Command

(CENTOM), which is in charge of operations in Iraq, conduct a census of contractors in its

employ.51 By the summer of the next year the data was made available and news outlets carried

the report with shock at the amount of contractors hired by CENTOM.52 This data showed

contractors surging from 130,000 to 160,000 in less than a year – primarily in support of the

‘surge’. What was more shocking was the sheer number of contractors and that total contractors

were almost 1:1 with uniformed troops. This lack of oversight was just part of a systematic

problem with how the Department of Defense dealt with its contractors in Iraq. It should be

noted that while the number of contractors increased the jobs associated with the private military

industry, security doesn’t change very much from 2007 to 2011. It hovers roughly around 10%

50 Schwartz, Moshe & Joyprada Swain (2011) ‘Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis’ Congressional Research Service 51Dow, Susie. ePluribus Media. October 31, 2008. http://thejournal.epluribusmedia.net/index.php/features/1-latest-news/203-iraq-contractors-raw-data-from-centcom-pt-ii 52 Articles by the LA Times and Washington Post highlight the shock and interest generated by the report on contractors operating in the Iraq theater.

23

of contractors hired for security duty and most of these tasks are base security, fellow contractor

security, VIP security and convoy security.

Contrary to popular belief none of the primary security contractors are given contracts for

offensive military action. Most of these contractors from the beginning stages are locals hired to

support the troops and engage in reconstruction. When the reconstruction portion of the mission

was turned over to the Iraqi government these levels decreased. This shows an interesting

occurrence that while American and third party contractors increased from 2007 to 2008, the

numbers of locals hired begin to decrease. As troop levels decreased locals accounted for 27% to

15% of contractor personnel between 2009 to 2011. The reason is not given by the Department

of Defense, but the most likely reason is due to the Iraqi government taking on more

responsibility for the tasks that had been the job of the United States military. In addition, a surge

in violence might have made commanders less willing to hire locals who could be potential

threats.53

53 The graphs on the following pages show how the contractors in Iraq evolved over time to fit events on the ground including the number of contractors needed to support the surge of combat troops.

24

25

26

Graphs on pages 24-27 provided by the Congressional Budget Office

27

Figure provided by Oregonstate.edu 1

This constant flux of troop levels from the beginning of the invasion in 2003 to the

beginning of the draw down in early 2008 paints a picture not simply of changes on the ground,

but also changes in contractors as well. As the majority of the contractors are in support of the

uniformed personnel you would expect the contractor levels in Iraq to run in unison. The lines

cross in 2009 and now there are now more contractors in Iraq then uniformed personnel. When

looking before the surge an interesting story emerges. When we compare this data to past U.S.

conflicts the reason why this conflict has the potential to be an important event in the evolution

of the military becomes evident. In the Revolutionary War it is estimated that for every 6

uniformed soldiers (then militia men) there was one contractor. In World War II the ratio was

seven soldiers to every one contractor, and in Vietnam it was five to one. The only conflict that

spiked the opposite way was the Gulf War, using the Powell Doctrine, of 51:1 uniformed

personnel to contractor. The Iraq War from 2003 to 2008 was at a ratio of one to one, on par with

28

the Balkans. However, in the post-2008 draw down it has for the first time surpassed that of

uniformed personnel. 54 These numbers show without a doubt that contractors are playing a more

important role than in any other past American conflict. What they also highlight is that

contractors, for the majority of the conflict, roughly follow the same pattern as uniform

personnel due to their support role. The surge and pull out followed the same trajectory showing

the interconnection between the two and that contractor utilization usually lags behind uniformed

personnel.

Using these numbers we can create an image of the war and the contractors who are

operating in it without having to be involved in political or military discussions. The reasons

behind the surge or the draw down and the changes in troop levels are unimportant for the

discussion at hand. What is important and can be gleaned from the numbers were three aspects

new to this war. First, this war, even before 2008, had the highest proportion of contractors to

soldiers. This is due both to the smaller military that exists due to budget cuts and to the security

vacuum that was created and needed to be filled. Second, the relationship between the two,

contractors and soldiers, is interconnected as the majority of soldiers work in base support

functions. Therefore contractors in the current structure will always be tied to uniformed

personnel. This is important as much has been said about the loss of the monopoly on violence or

mercenaries operating on their own. However, the numbers show that given the role and

relationship it will continue to be subservient. Last, in regards to role the vast majority of

contractors, nearly 80%, have direct base support role. Therefore, in future engagements that

don’t require long-term base support, contractors will be required much less and more on par

with Gulf War levels. These numbers show us the importance that the Iraq War has for the

industry and the boom it has been; yet, it also shows that the traditional roles are still preserved.

The framework, structure and environment that these contractors have been a part of have also

evolved over the course of the war and are continuing to evolve.55

54 Congressional Budget Office. “Contractors’ support of U.S. Operations in Iraq.” 2008.

55 Ibid

29

Chapter 4: Iraq War Accountability, Legal and Ethical Issues

Evolution in the military-industrial complex, as this paper has shown, has been ongoing

since the creation of the United States. It has shown that the military industrial complex has also

evolved, as a part of the industry, due to vacuums created at the end of the Cold War. The Iraq

War presented, even more then the Balkans, a test to the new privatized system that had

emerged. From the wars beginning in 2003 to the current draw downs in 2011 many aspects of

the relationship have evolved and changed. There have been mistakes and tragedies but also

triumphs and successes. What is certain is that this war has been a learning process from the

contractors and Department of Defense for how the military-industrial complex and its new

private military corporations operate when America goes to war.

As discussed in the contractor and troop numbers breakdown earlier, the picture from

2003 to 2007 was murky due to improper management and a lack of oversight. This began to

change as the Department of Defense realized serious flaws in how it interacted with the

contractors under their control and began to institute a series of reforms. The first one of these

was a memorandum on the census in order to gain a clear picture as to just what the reality on the

ground was and how to proceed. The staggering number of contractors showed them how far

behind the curve they had become and how their conduct until that point had been hurt by the

changing realities and needs on the ground.56, 57 Therefore this dissertation will show how the

Pentagon changed in three important areas; oversight, legal and ethical.

Changes in each of these areas not only allowed the Department of Defense to function

better but also laid the groundwork for future reforms. That is the key, future reforms, as the

process still has a ways to go, especially in addressing ethical concerns in the use of contractors.

The Department of Defense has many changes and improvements that must be made so mistakes

of the earlier stages, such as poor accountability and prosecution of illegal acts, aren’t repeated in

the future. The following will outline the incremental changes the Pentagon has instituted in the

three identified; oversight, legal and ethical.

56 Merle, Renae (2006) ‘Census Counts 100,00 Contractors in Iraq’ Washington Post, December 5 2006 57 Congressional Budget Office. “Contractors’ support of U.S. Operations in Iraq.” 2008.

30

Evolution in the Fog of War

Government oversight of something as vast as the military industrial complex is difficult

even when with self-regulation. Add to this equation the vested interest of many Congressional

leaders to protect niches for their State and oversight can become even more difficult. On top of

this the semi-new private military industry, or segment of the military industrial complex, is

difficult to manage as it is still evolving. This would make oversight difficult even in the best

situations. Add the fog of war and oversight becomes even more difficult.

The fog of war refers to the chaos associated with the battlefield as events evolve and

transform more quickly than leaders can understand them and the general lack of information

due to the dangerous environment. Throughout its history, the military has always tried to

overcome this fog, today using satellites and computers, to keep track of its forces and the

enemies. This is why it isn’t too hard to fathom that from 2003 to 2006 while Iraq was teetering

on the brink of collapse that the military’s highest priority would be to conduct a census and to

insure it had proper oversight. However, as the war waged on the problems of oversight became

more important as more contractors were required to support the long duration operation. The

logical first step was a census. The second step, however, proved more difficult. It entailed

ensuring the Pentagon had command and oversight over the 130,000 to 160,000 contractors that

were critical for the new occupational force.

With uniformed personnel there exists a proper chain of command that has its roots in the

British chain of command that has evolved over the centuries. It is a tried and true system. This

system dictates how individuals interact with each other and how orders are relied through the

system. This chain of command is important to ensure orders are fulfilled and responsibility

properly delegated. Above the individual chain of command there is the unified command. Each

unified command takes responsibility for missions within their geographical area and reports to

the President and the Secretary of Defense. This ensures that the Executive has proper oversight

and ensures civilian dominance of the military. With contractors no such system exists and no

clear authority exists in handling contractors and their assignments. However, over the course of

the war a rough framework for proper oversight has evolved in order to meet the vacuum that

existed in the management of these contractors.

31

Realizing this vacuum existed and that errors could be made due to a lack of coordination

and oversight the Department of Defense slowly began to make changes. Many of the changes

resulted from hearings that took place in Congress due to events on the ground and the

realization that mismanagement of contractors could be problematic. However, it should be

noted that the banning of contractors was never seriously entertained and instead the

improvement of the relationship was the heart of the matter. This culminated with the National

Defense Authorization Act of 2007 (H.R. 51222) and within this section 854 thus resulting in

changes in the Pentagon.58 The most important of these changes was the creation of the Assistant

Deputy Undersecretary of Defense Program Support within the Department of Defense.

This position and the office it presides over took over responsibility for all contractors in

forward areas of operation.59 This gave responsibility to one man who could report not just to the

upper echelons of the Pentagon on contractor related matters but an office where the Congress

could go for additional information. This had been a major issue for Congress. Te lack of

communication between the Pentagon and Congress on this issue and a dearth of information in

the matter compelled Congress to push for reforms and greater oversight which would allow for

this information to be available. This new undersecretary position and the quarterly report it

began to publish alleviated much of these concerns.

In addition to Congress recognizing a lack of oversight the Department of Defense, and

more accurately commanders on the ground, saw this as a problem as well. Many commanders

characterized the lack of oversight as “a nightmare”60 and therefore pushed for greater oversight.

The realization by commanders, and with the blessing of Congress, led to the expansion of the

Armed Contractor Oversight Division61. This led to an increase in the number of personnel at the

Armed Contracting Management Agency (ACMA) which was responsible for rules and

regulations for contractors in Iraq, mandatory guidance for contractor conduct and general

oversight. This agency had been undermanned and ill-equipped to handle the massive number of

contractors needed to support the ongoing Iraq War. With greater Congressional awareness, a

58 Schwartz, Moshe & Joyprada Swain (2011) ‘Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis’ Congressional Research Service 59 ibid 60 ibid 61 Operates under Central Command within Joint Theater Support Contracting Command

32

Pentagon office solely responsible for their oversight and the expansion of the ACMA, the

oversight of contractors took a major step in the right direction.

A part of oversight is coordination. Without proper coordination between contractors and

uniformed personnel there existed the possibility for dangerous encounters and contractors

venturing into hot areas. However while the steps taken above addressed many of these issues

another problem presented itself. Contractors weren’t just employed by the Department of

Defense; in fact, in many cases more armed contractors were employed by the Department of

State than Defense. Therefore, steps needed to be taken by the State Department to implement

the policy prescriptions outlined by Congress and implemented by the Pentagon. In 2007 a

memorandum was signed between the two agencies for cooperation and coordination in regards

to contractors. This agreement gave greater authority to combatant commanders in the oversight

of both agencies armed contractors. Both agencies agreed to work together to develop shared

policies, standards and procedures to increase accountability and oversight. 62

All these steps helped to overcome the oversight gap that existed from 2003-2007. 2007

was a major turning point in the steps taken to increase oversight. Even though the Pentagon had

instituted some steps before then, like the census of contractors, it was clear that a catalyst was

needed for further reform. This event proved to be the shootings at Nisour Square in 2007.

Security contractors working for Blackwater63, a major tip of the spear security firm, were hired

to fulfill a security protection contract for the State Department. During a mission to protect a

State Department convoy contractors opened fire in Nisour Square killing 17 civilians.64 The

news of this alleged massacre quickly spread to media outlets around the world and outrage over

the shooting grew. Iraq canceled Blackwaters’ license to operate inside the country and

investigations were opened into the shooting. This shooting proved to be a major catalyst for the

case against an over reliance of security contractors. The FBI, State Department and even United

Nations began investigations into the shooting. Whatever the outcome, these investigations will

62 Elsea, Jennifer & Moshe Shwartz & Kennon Nakamura (2008) ‘Private Security Contractors in Iraq: Background, Legal Status, and Other Issues’ Congressional Research Service 63 Now called Xe Services 64 Glanz, James (2007) ‘From Errand to Fatal Shot to Hail of Fire to 17 Deaths’ New York Times, October 3, 2007

33

damage the reputation of the industry at large.65 However, out of this tragedy the reforms

discussed above were implemented and the evolutionary process of perfecting the use of the

private military industry was accelerated. Beyond simply more oversight, due to the criminal

nature of the incident, legal reforms were also implemented.

Legal authority in regards to contractors is another area that suffered due to poor

planning and a lack of clear vision. Having a proper legal framework for contractors to operate in

is important not just to ensure that any illegal activity conducted by contractors is punished but

also to set up the rules by which contractors are bound to operate in. Without it contractors

cannot be sure what rules of war apply to them. A legal framework and an oversight framework

have seen the greatest evolution within the Iraq War and will serve as important milestones for

the future use of contractors.

As the incident in Nisour Square demonstrated there is a need for a legal apparatus to

govern the actions of contractors similar to the system used for uniformed personnel operating in

foreign countries. In 2004 the Coalition Provincial Authority dictated order 17 to protect the

contractors in their employ which exempted contractors from Iraqi law. The issue however was

that uniformed personnel operate under the military code of justice, while civilian contractors (in

particular American citizens) are not allowed to be persecuted under its statutes. Also non-

combatants, even though the United Nations tries to portray them as combatants are not given

impunity under international law as lawful combatants. A void exists in international law and

American law in how to deal with these individuals and in how the Pentagon and local

commanders would deal with crimes committed by contractors. 66

65 It should be noted that so far investigations into the shooting have been far from conclusive. While the United Nations focused on the use of mercenaries, even though the participates were engaged in security operations, other departments did engage in a lengthy investigation that also brought Iraqi’s into the process. In April 2009 it was found that ballistic tests on the bullets found at the scene did not match guns used by the Blackwater contractors and therefore their existed the possibility of a third-party or randomized gun fire might have been responsible for the contractors response. Some first party testimonies laid the blame at a contractor named Paul Slough who had manned a turret gun though charges have been brought against him. In the end a U.S. judge threw out the case due to issues with the investigation in regards to how testimonies were gained. While no contractors were found guilty public opinion already turned against them and therefore the shooting no longer mattered. The case was reopened again in 2011 against five of the six contractors (one had already pled guilty and cooperated with prosecutors) and found that the court had mishandled the case and therefore should be reexamined. Therefore the case is ongoing.

66 Elsea, Jennifer & Moshe Shwartz & Kennon Nakamura (2008) ‘Private Security Contractors in Iraq: Background, Legal Status, and Other Issues’ Congressional Research Service

34

This came to the forefront after the massacre and the need for a way to investigate and

prosecute the Blackwater contractors who were involved. However, the groundwork for dealing

with illegal activity had been laid even before the incident. Under previous legislation,

particularly the Military Extraterritorial Jurisdiction Act of 2000 or MEJA, persons who are

employed or are accompanying the military can be tried under MEJA or in certain cases even

Uniform Code of Military Justice, UCMJ (though the later is difficult as constitutional provisions

prohibit this).67 Court Martial though controversial was expanded in the National Defense

Authorization Act in 2007. Pushed by Senator Warner it further outlined that contractors serving

with the armed forces should be subject to court-martial in contingency operations as well as

war, therefore UCMJ and MEJA. Most acknowledge that this was more for appearance and most

prosecutions would have to be done under MEJA due to constitutional questions. While this

dealt with contractors with the armed forces it did not apply to contractors with the State

Department who will begin to make up the overwhelming majority of security contractors as the

military draws down and whose contractors had been the target of investigation due to the Nisour

Square massacre.

The Military Extraterritorial Jurisdiction Act, which even though already under law

though not readily used, became the main piece of legislation to dictate legal oversight in 2007.

This clarification of who and how MEJA would be applied greatly helped to facilitate a clearer

picture in how the Pentagon would deal with legal issues and was welcomed by the industry.68

The fact that the industry welcomed the clarification showed that the private military industry

wanted oversight and to be viewed as responsible partners. This was a key realization that any

legislation and reform would only strengthen the relationship. MEJA and contractors persecuted

under its framework is led by the Department of Defense Inspector General who then informs the

Attorney General of the Department of Justice.

Under MEJA 12 people have been charged with crimes.69 Only three contractors though

have been charged and none for operational offenses. One contractor was charged and found

guilty of child pornography, one for sexually abusive contact and one for assault with a deadly

67 Schwartz, Moshe & Joyprada Swain (2011) ‘Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis’ Congressional Research Service 68 ibid 69 ibid

35

weapon.70 Therefore while the means for prosecution exists it does seem that given the small

number of actual cases that the Attorney General isn’t prosecuting many crimes. However there

exists a clear legal framework for both commanders on the ground and the Department of

Defense Attorney General to prosecute any illegal activity. A culture of responsibility is needed

to encourage commanders and contractors to bring offensives to the proper authorities. What

hasn’t been as clearly resolved is how State Department contractors will be prosecuted once the

military leaves and therefore MEJA cannot be invoked.

The evolution that has occurred in both the oversight and legal framework for contractors

in the Iraq War shows a positive pattern. These contractors evolved to fill a void that was created

with the downsized military and the great demand the security vacuum created in Iraq. While

mistakes were made in the beginning, and 2003 to 2007 could be characterized as chaotic,

progress has been made. The Department of Defense, true to its nature, has implemented

incremental steps to resolve these problems. Most have been addressed even without catalysts,

though events like the Nisour massacre only furthered the demand for reforms. It is important

that even though additional reforms were taken after the massacre the groundwork and initial

framework had already been created on the Department of Defense’s own accord before the

tragic event.71

The Pentagon has given clear mandates to its commanders to oversee contractors. The

contractor’s census and increased communication with Congress facilitates proper legislation.

Expansion of oversight agencies improves accountability. For legal action MEJA laid out the

groundwork before the outbreak of hostilities, further Congressional clarification will help

establish a proper framework. These agencies are still poorly staffed to handle the number of

contractors and legally the culture doesn’t exist to prosecute the majority of offenses.72 The

70 Beyond the Nisour Massacre contractors have also been found guilty of widespread fraud and misconduct. Fraud cases, like those tried under the False Claims act, found cases of misconduct for the $8.7 billion that was awarded to various contractors in support of the war. One example found a contractor defrauded the government of $40 million. There has also been cases of rape and assault, which do have a higher prosecution rate than those of violent on the job instances. http://www.huffingtonpost.com/2008/10/07/former-iraq-contractor-pl_n_132754.html and Schwartz, Moshe (2009) ‘Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis’ Congressional Research Service 71 ibid

72 Isenberg, David “A Government in Search of Cover: Private Military Companies in Iraq.” Mercenaries to Market. Chesterman & Lehnardt. New York: Oxford University Press, 2007. pp. 82-93

36

greatest problem foreseen is the void that will be left once the military begins to leave and the

State Department operates its own security force.73 With all these reforms the picture has

become clearer and the ability of the private military industry to operate effectively has

increased. Nonetheless, it hasn’t alleviated many of the ethical fears individuals have for

contractors that were only increased by the actions of Blackwater.

Ethical considerations are an area where Congress and the Pentagon cannot simply pass

an act or create a new agency to deal with the problem. To address the concerns of certain

individuals only time and success will accomplish the goal and even then certain individuals will

always view contractors disparagingly. Yet, the critiques are important and they delve into the

issue beyond simply the threat to the monopoly on violence but also to the fundamental

motivation of contractors: profit. The threat that many critics have raised never came to fruition

even in the perfect storm that was the Iraq War. The government-industry relationship has been

strengthened, the roles further defined and a framework for oversight and legal prosecution

established.

Much of these negative feelings accurately portray the mistakes that the Executive branch

and military made in handling the increased use of contractors. Being true to its nature the

military slowly realized these mistakes and incrementally made changes. Critics have focused on

the “grey zone” in which contractors operate and the fact that prosecutors taking action is rare

and crimes are not being reported. 74 This valid concern is an area that the Iraq War and the

changes to how the Pentagon deals with contractors have been most effectively addressed. While

continued reform is needed, this dissertation has demonstrated how the Department of Defense

slowly evolved its relationship with the military industrial complex to deal with the needs and

challenges of the time.

73 While the Defense Department has been working towards correcting mistakes in how in managed contractors earlier in the conflict the State Department hasn’t been as proactive. Though cooperating in Department of Defense reforms they have been slow to reform on their own. It should be noted that the Nisour Sq Massacre was carried out by contractors under contract by the State Department and now the Department of Defense and once the military withdraws the State Department will still have significant presence though without the back of military accountability. For further information on this new ‘private army’ see Hodge, Nathan (2011) U.S. Plans Private Guard Force for Iraq’ The Wall Street Journal, June 7, 2011 74 Jose L. Gomez “Needs to take PMSC out of grey zone.” Journal of Conflict & Security Law. Oxford Press. 2009. Pg. 429

37

Using the Iraq War as an example one can reason that improvements will continue. The

idea that the state should be the key holder of the monopoly on violence is one that critics, from

Gomez to P.W. Singer, are quick to point out.75 It is also one that still has the potential to be

degraded in the future. The Iraq War has confirmed that the monopoly has been strengthened

through reform. Though the case exists for unwarranted influence it is within the same apparatus

as the concerns raised 60 years earlier by President Eisenhower suggesting that recent

developments are not revolutionary.

There is also the idea that what is occurring is leading to a fundamentally new security

industry.76 The number and size of companies and contractors have actually increased this

security industry which is not new but rather an emerging segment within the military-industrial

complex. It’s easy to forget classical examples of mercenaries and focus on the idea of civilians

in war related roles. America has used contractors throughout its history. The Iraq war has

proved that they are a growing and important part of the military industrial complex.

There are also important concerns for how the increase use of contractors, and therefore

civilians, will impact the conduct of war. The concern is that all civilians might begin to be

viewed as combatants and vital to the war effort. By not distinguishing uniformed from civilian

personnel the number of acceptable targets will increase. Beyond this there is the risk that

civilians not part of the war effort, nongovernmental organizations or reconstruction could be

targeted based on the perception that all contractors are combatants. 77 One could argue that the

Iraq War is an example of this as the insurgency regularly target civilian staffers who are not

engaged in military type actions. The idea that these individuals would not have been targets by

performing only non-war functions proved to be false. The blurring of the lines is important

however as we have seen in Iraq the distinction remains and the roles have been clarified. The

idea that civilians are beginning to be viewed as combatants by the United States military or

government has not happened.

75 Jose L. Gomez “Needs to take PMSC out of grey zone.” Journal of Conflict & Security Law. Oxford Press. 2009. Pg. 431 76 Ibid. Pg.435

77 Hedahl, Marcud “Blood and Blackwaters: A Call to Arms for the Profession of Arms.” Journal of Military Ethnics. 2009. Pp. 23

38

Economic concerns have raised ethical issues. The reason why the private military

industry came into existence was to fill a vacuum. It was allowed to flourish because the United

States’ culture values privatization. This leads to two questions. Can war related activities be

privatized effectively? What should remain the domain of the government?

What we have seen in the ongoing use of contractors is that they can be used and have a

vital part of the war effort. However, are they effective? That is to say just because you can

privatize does that means it is best for America. The case against this is that privatization only

works when the free market is allowed to function and a free market does not function during

times of war. 78 This means that the market is not truly competitive and is not free due to the

nature of war. The Iraq War is a difficult case to use for this as total war has not been achieved

and a free market still exists on the home front and even in parts of Iraq.

The chaos of war does by its nature lead to an unfriendly free market environment where

information isn’t equal and competition isn’t level. An example of this are the number of bad

contractors that have emerged from the war, in both regards to contractors and overall

procurement. However because this exists in peacetime as well it most likely has less to do with

the free market not functioning in Iraq and more to do with the poor procurement strategy, using

cost plus contracts, the Pentagon and the influence between military, industrial and congressional

leaders. However, if a total war was ever declared then the idea that the free market wouldn’t be

the best solution for the allocation of resources does hold sway. There is also the field of

transaction economics which views the contracts and dictates if the actual transaction is actually

positive.79

From this emerged clear improvement in the contracts awarded in Iraq and the

environment becoming more fair and balanced as the chaos of the early war and systematic flaws

in the framework were improved including the reduction of uncertainty, asset specificity and

frequency. Improvements in each of these three areas led to improvements in the transaction

cost. However it’s important that when looking at transaction economics combat operations

would appear as one area that will never become economically viable. This is one reason to

78 Hedahl, Marcud “Blood and Blackwaters: A Call to Arms for the Profession of Arms.” Journal of Military Ethnics. 2009. Pg. 23 79 Fredland, Eric J.” Outsourcing Military force: A Transaction Cost Perspective on the role of Military Companies.” Defence and Peace Economics, Vol. 15. 2004.

39

explain, in addition to ethical concerns, why the private military industry was halted in its role at

security operations and was never allowed to become involved in combat operations.80

The Congressional Budget Office has also looked at the economic merits of using

contractors. According to the CBO the costs associated with using private security contractors in

Iraq “did not differ greatly from the costs of having a comparable military unit performing

similar functions. During peacetime, however, the military unit would remain in the force

structure and continue to accrue costs at a peacetime rate, whereas the private security contract

would not have to be renewed.” This is the crux of why the use of contractors can be a positive

even if it wasn’t a necessity. The ability to wage a major war and not have to pay for a large

peacetime military is important. With budget cuts and military downsizing the military must be

able to rely on the private military industry to protect its ability to wage major war with a highly

trained and well equipped military. Therefore, even though they were created to fill a void,

expanded to fill the countries desperate need for manpower, the case for its continued existence

is its ability to augment American military strength and therefore fill a critical need as the

military continues to become leaner.

80 This is an important distinction that though private security contractors have engaged in combat it has only been in self defense (or a criminal act) when protecting their asset. Never has a contractor been hired by the military or State Department to engage in combat operations.

40

Conclusion

The Iraq War has presented a unique case study from which to examine the use of private

contractors in the United States military. The war was an important event for the military

demonstrating how quickly the United States adapted to wartime changes. Though structural and

appearance changed this military still consists of professionals who wage war under firm state

control. Two hundred and thirty five years ago the founding fathers debated whether America

should even have a standing military and what the military should resemble.

As America grew so did its commitments around the world. America addressed these

challenges with an industrial complex to support a large military leading to fears as well as hope.

Fears of unwarranted influence and hope that the possibility of a stronger America with new

partners in the commercial sector.

With the fall of the Soviet Union many of America’s commitments fell away and the

military’s robust size was no longer needed. In the wake of these downsizes new operational

challenges arose creating a demand for private corporations. The Iraq War presented a

revolutionary opportunity for these corporations, their contractors and the industry at large. Some

contend that this ushered in a new age of warfare with an increased void of state control. This

paper has demonstrated that the America military has realized the increased importance of a

contractor’s roles and responsibilities leading to a strengthening of the state’s capabilities. True

to its roots, the US military implemented incremental steps in order to ensure a more perfect

relationship between uniformed personnel and contractors.

Steps were taken to regulate and ensure that proper accountability existed and robust

coordination maintained between the military and contracted soldiers. A clear mandate was

given to all levels of Government that commanders on the ground, and within the unified

command, continue to hold power. And that these individuals and their chain of command would

dictate to the contractors the realities in their respective theater of operation.81 Legal reform has

also occurred to help refine the framework. However, execution of the law has fallen short of

81 Schwartz, Moshe & Joyprada Swain (2011) ‘Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis’ Congressional Research Service

41

desired standards. The evolution continues and the execution of law will soon, hopefully, rise to

the level of the framework mandated.

As the capacity vacuum is filled and rules are put into place, order will begin to take over

replacing the chaos experienced in the beginning of the Iraq War. The process of establishing a

clear and reformed framework should continue as the military draws down in Iraq. The

Executive, together with the Department of Defense, must continue to improve the framework

for the use of professional contractors. The Congress must be given proper financial oversight

over deals related to contractors and must be given information so that they may inform the

public to ensure that the civil-military relationship remains strong.

The judiciary must be allowed to take part in ensuring a stronger relationship and be

allowed to execute its part of the balance of powers by ensuring the laws apply to contractors.

When breaches occur these contractors must be held accountable just as a civilian at home would

or a uniformed soldier abroad. The separation of powers as they apply to the military must also

apply to contractors and only then will ethical fears begin to be alleviated. America must not

allow another vacuum to be created and must ensure that the gains since 2003 are not threatened.

This process is far from over and as this paper has highlighted the military more than

most branches of government operates on a slow evolutionary timeline, putting changes into the

system incrementally. Not accustomed to rapid changes the military rose to the challenge by

quickly responding to demands of the Iraq War. As the framework develops that rivals its

uniformed counterpart the lines between the two will become blurred until it is simply

professionals waging war and whether they wear a uniform or not will no longer matter. While

challenges remain and flaws will be discovered what is clear is that professional soldiers will

continue to evolve to meet the challenges of the 21st century.

42

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