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Air & Space Power Journal - Spring 2008

A Look down the Slippery Slope

Domestic Operations, Outsourcing, and the Erosion of Military Culture

Maj Bryan D. Watson, USAF*

Editorial Abstract: Two simultaneous trends inside America’s military culture—its increasingly domestic role and its growing reliance upon defense contractors—illustrate considerable fundamental differences between uniformed military personnel and their commercially oriented counterparts. Employing a future scenario, the author contends that the growing civilian influence over formerly military endeavors will likely lead to serious trouble over time. If that is true, America’s long-term ability to project combat power may ultimately falter as well.

Introduction to an
Uncertain Future

Good morning, ladies and gentlemen—members of the ACSC class of 2017. Today it is my distinct pleasure to introduce to you a distinguished guest of the college. He has served in a variety of leadership positions throughout his career, and he is uniquely qualified to speak to us concerning the future of the United States Air Force, in that he is currently in charge of the Air Force’s new Office of Force Reconstitution. Ladies and gentlemen, please welcome our next guest.

Thank you and good morning. Please take your seats.

I have to say that when I was a student here in 2007, I didn’t dream that I would have the job that I have now—or that such a job would even be necessary. Mine is a new office, and, according to my title at least, I’m supposed to figure out how to “reconstitute” our Air Force.

Frankly, nothing would make me happier than not having a need for my job. Today, in 2017, recruiting has dropped to an all-time low even though financial incentives for enlistees remain at an all-time high. People tell me that morale is low, that Air Force families are disillusioned, and that some of our folks are treated poorly by local civilian communities. Essentially our institution no longer enjoys the prestige it once held. In a larger sense, though, I wonder if these issues are mere symptoms rather than “the problem.”

Back in 2007, our military establishment focused on “transformation” with an eye toward winning the global war on terror.1 It probably seems like ancient history to you, but when I was a student here, the terrorist attacks of 11 September 2001 (9/11) were still fresh in everyone’s mind, and we found ourselves in the early days of fighting in Afghanistan and Iraq. I remember that many of my instructors and classmates were already veterans of those conflicts and that my peers were studying “fourth-generation warfare” as well as the challenges inherent in a counterinsurgency environment.2

Because of our intense concentration on those issues, not many people (including me) noticed the emergence of two trend lines in 2007. First, despite heavy emphasis on Iraqi operations, the American military had begun to see the prospect of significant involvement within the United States. In retrospect, I believe that our government began to turn to the armed forces to meet domestic needs because we were “handy, convenient, and superficially at least, effective.”3 Second, in the meantime, we had undertaken substantial efforts to employ contractors to do work that, historically, military members had performed. Today, I believe that these trend lines (domestic operations and our reliance on contractors) have intersected—with serious, unintended consequences.

Turning toward Home:
Our Growing Domestic Role

I don’t think many Americans noticed the military’s expanding function within the country. For much of our history, our military has concerned itself with enemies located outside the nation’s borders; however, with 9/11 came the realization that external enemies can attack us from within.

Accordingly, the military’s domestic role began quietly increasing, without much debate. As one commentator observed, “[Despite apparent legal restrictions,] the use of a military surveillance system to help local law enforcement catch the Washington area sniper in the fall of 2002 drew little criticism.”4 We applied the same principle when we used “the National Guard to patrol airports or protect military installations, or supplement the Border Patrol.”5 On a basic level, employing 5,300 military troops to help guard the Olympics in Salt Lake City from terrorist attack seemed eminently reasonable, and military actions of “reinforcing civilian agencies . . . with drug interdiction, or [providing] security for . . . sporting events like the Super Bowl seemed, on the surface, functional and helpful.”6

But a few people did express some concern; for example, one commentator warned that “regular armed forces need to face outward, against American enemies, rather than inward where a military force can become an institution acting on behalf of one part of the community against another. That corrodes the morale of the forces, harms recruiting, reduces readiness, undermines the support of the country for the armed forces, and ultimately drives a wedge between the military and society.”7 In 2007, however, most of us just didn’t appreciate the risk of relying upon the American military to ensure domestic tranquility.

This reliance was no secret. Indeed, the National Strategy for Homeland Security overtly favored a “thorough review of the laws permitting the military to act within the United States in order to determine whether domestic preparedness and response efforts would benefit from greater involvement of military personnel.”8 As you may recall, the Federal Emergency Management Agency came under intense criticism for its response to Hurricane Katrina in 2005, and government leaders responded with plans for military solutions to domestic crises, including natural disasters.9 Thus, a few weeks after the hurricane, Pres. George Bush watched Hurricane Rita come ashore from Headquarters US Northern Command and suggested that the military should “determine and mobilize the national assets needed to respond to disaster.”10

Thereafter, officials began planning for a more “rapid, robust role for active duty forces in responding to catastrophic disasters or terrorist attacks.”11 In fact, one senior official observed that “it is almost inevitable that the Department of Defense [DOD] will play a very substantial role in providing resources, equipment, command and control, and other capabilities in response to a catastrophic event . . . [since] only the Pentagon can marshal such resources and deploy them quickly during a time in which thousands of American lives may be at risk.”12 Interestingly, the American military’s focus on domestic operations proceeded despite objections from state officials: the Texas governor “oppose[d] the federalization of emergency response efforts to natural disasters and other catastrophic events,” and Arizona’s governor warned that “moving disaster planning and response to Washington would be a disaster.”13

That same year, world health officials predicted a possible influenza epidemic, and the desire for military involvement in domestic operations intensified.14 Again, this trend met with little opposition, likely because of sentiments such as the public acknowledgment by the Centers for Disease Control that “the United States was vulnerable to chemical and bioterrorism acts.”15 The military’s possible role actually formalized in the National Strategy for Pandemic Influenza in November 2005, when the federal government pledged to “develop mechanisms to activate” those “infrastructure-sustainment activities that the U.S. military and other government entities may be able to support during [such] a pandemic.”16

It was straightforward logic: because of its proven ability to plan and execute, the military was well suited to confront domestic crises. As a student here at ACSC, I remember learning a bit about domestic operations; we spent time on graphs and organizational charts but not so much on the cultural problems inherent in domestic operations. I’m sure that has since changed.

At about that same time, our leaders began to seriously study the implications of what is popularly known as the Posse Comitatus Act.17 I’ve since learned that people frequently misunderstand the term posse comitatus, which literally means “the power or force of the county,” referring to the traditional power of a county sheriff to summon a posse to assist in keeping the peace, pursuing and arresting felons, and suppressing riots.18 Historically, most jurisdictions permit a police officer to seek assistance in arresting or recapturing an escaped prisoner.19 The Posse Comitatus Act represents a notable exception insofar as it forbids using federal troops for such a purpose, thus reflecting American skepticism regarding a standing army that keeps the civil peace.20

The principle underlying this act has an interesting history in the United States, and we would do well to remember it. Specifically, despite threats to our national security from several powerful European nations, our Founding Fathers decided to limit the domestic powers of the American military.21 Delegates to the Constitutional Convention hotly debated military issues, even arguing “whether there should be a standing army at all, or if defense of the nation should rely entirely on the state militias.”22 Despite the fact that the Constitution ultimately provided for Congress’s ability to raise a standing army, its only expressly stated domestic role involved “suppress[ing] insurrections.”23

The danger of a standing military represented a point of serious contention. Convention delegate Luther Martin of Maryland declared to his state legislature that “when a government wishes to deprive its citizens of freedom, and reduce them to slavery it generally makes use of a standing army.”24 Similarly, Alexander Hamilton argued that standing armies can “place the population under military subordination” and that “by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors.”25 On another occasion, James Madison observed that “the liberties of Rome proved the final victim to her military triumphs” and that “[a] standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution.”26 These types of concerns have undergirded the Posse Comitatus Act for most of its life, and, ultimately, after passage of the act, “it was understood that federal troops were not available to supplement civilian law enforcement officials.”27

Gradually, that attitude began to soften. Was there some kind of sinister conspiracy to have the American military assume more and more domestic responsibilities? No, I think the answer is far simpler. I believe that the phenomenon involved simple “mission creep” during a time of intense anxiety over our society’s internal safety.28 I’m reminded of the words of Vice Adm Arthur Cebrowski, USN, retired, the Pentagon’s former transformation chief, who observed that the “post-9/11 reality” indicated “that we need[ed] a new way to rebalance our overseas interests and our concern for homeland security.”29 In retrospect, his words heralded a larger domestic role for America’s military.

Ultimately, my advice is simple. As future leaders, make sure that you have a firm understanding of the proper functioning of a military in a democratic society. Never forget that you are public servants, and never take your public support for granted. That said, we should all realize that not everyone who performs public functions is necessarily a public servant.

For Profit and Country:
Our Reliance upon Contractors

In the early days of my career, I witnessed a remarkable increase in our reliance upon private contractors. During 1991’s Operation Desert Storm, 9,200 contractors deployed to support military operations.30 By 1999 some military observers were expressing sentiments such as, “Never has there been such a reliance on nonmilitary members to accomplish tasks directly affecting the tactical successes of an engagement.”31 This trend continued; as our military downsized, privatization increased, and Iraqi Freedom certainly proved no exception.32 During that conflict, “estimates of the number of government civilian employees and contractor personnel present in Iraq range[d] from twenty to thirty thousand, making civilian workers the second largest contingent in-country.”33

In Iraq, arguably it became difficult to tell the difference between functions performed by contractors and uniformed military members. Civilians “maintain[ed] complex weapon systems such as the F-117 Nighthawk fighter, B-2 Spirit bomber, M1 Abrams tank, and TOW missile system, and operat[ed] the Global Hawk and Predator unmanned aerial vehicles”; “conduct[ed] intelligence collection . . . and analysis”; and “interrogated prisoners of war and other detainees.”34

True, the American military historically has relied upon contractors’ services, but in Iraq and Afghanistan, the reliance became unprecedented.35 In Iraq we employed contractors after we fielded systems so new that the services could not develop training courses for uniformed personnel.36 For example, during the first combat deployment of the RQ-4A Global Hawk unmanned aerial vehicle in support of Operation Enduring Freedom, 56 contractors deployed as part of an 82-member military, civil service, and contractor “team.”37 Subsequently, the use of contractors in this type of role grew further, to the point that contractors began “conducting combat-type operations” that included “operat[ing] the [Global Hawk]” and even “serv[ing] as Global Hawk pilots.”38

Despite recognition that this could create numerous issues—not the least of which was the fact that UAV contractor pilots could be considered unlawful combatants under the Law of Armed Conflict—the American military continued to rely upon contractors.39 A publication generated right here at Maxwell AFB, Alabama, even addressed this issue in 2004, warning that “the citizen must be a citizen not a soldier. . . . War law has a short shrift for the noncombatant who violates its principles by taking up arms.”40

Privatization continued as a result of deep cuts in military personnel, claims that contractors could perform more efficiently, the increasing complexity and sophistication of weapon systems, and, of course, desires to deploy contractors in order to thwart troop ceilings mandated by legislation or a host country.41 We even specifically designed some weapon systems to rely upon contractor support instead of uniformed personnel, again amid claims of “cost-effectiveness.”42 One observer even remarked, “Simply stated it is impossible to deploy without [contractors].”43

Additionally, we started seeing more “private security companies” in conflicts around the world—including Iraq. Although official reports declared that such companies in Iraq “provide only defensive services,” the extent of these contractors’ activities became quite substantial and, in the opinion of some people, practically “indistinguishable from military operations.”44 In April 2003, for instance, employees of Blackwater USA battled with insurgents attacking personnel assigned to the US-led Coalition Provisional Authority in Najaf. They fired thousands of rounds of ammunition and hundreds of grenades, and Blackwater even used its own helicopters to supply them during the fighting.45 Later, the company’s leadership even offered its services as an army for hire in the world’s “trouble spots,” stating that Blackwater “stands ready to help keep or restore the peace anywhere it is needed.”46

Furthermore, contractors’ activities weren’t limited to entities affiliated with the DOD. One particular example comes to mind: in February 2006, “private security workers under contract with the State Department shot and killed two Iraqi civilians.”47 We would have done well to carefully note the anger expressed by the brother of one of the casualties: “I swear to God that I will take revenge for my brother. . . . They did not even stop to take him to the hospital. . . . This is their new democracy, this is the freedom they brought.”48 On a more troubling note, the victims’ angry relatives “did not appear to distinguish between U.S. troops and the contractors, who many Iraqis say resemble foreign soldiers.”49 Additionally, in late 2007, Blackwater USA came under intense public scrutiny following allegations that innocent Iraqi civilians were killed by the company’s employees.50

Whenever I tell stories like this, many people ask themselves, “How did we get to this point? Isn’t the government supposed to do the fighting?” Well, I’ve asked myself that same question, and I’ve done a little research. It all started innocently enough, back in the 1950s, when the federal government “required its agencies to procure all commercial goods and services from the private sector, except when ‘not in the public interest.’”51 Years later, Congress required federal agencies to outsource government positions not “inherently governmental.”52 Of course, the requirement applied to positions held by military personnel, and the DOD complied, mandating that “functions and duties that are inherently governmental are barred from private sector performance.”53

Eventually, reliance upon contractors simply became expedient. As defense budgets struggled under increased missions and exhortations to trim manpower, we began to use contractors in place of uniformed personnel.54 Civilian ranks weren’t immune either. Between 2000 and 2006, the military permitted the private sector to compete against federal civilian workers, with contractors winning about 60 percent of the time.55

As we contracted out more and more military functions, many service members applauded the additional manpower they received when contractors filled voids left by cuts in military personnel.56 Moreover, members of the public appreciated the budgetary savings promised by a smaller military, and as we redirected federal dollars to contractors, those companies enjoyed remarkable revenues.57 Basically, most folks seemed happy.

Back then, as a junior field-grade officer like you, I focused intently—as did my peers—on how to just get the job done for my boss. If I needed a task accomplished but didn’t have a military member available, I thought, “Why don’t we find a contractor to do it?” I freely admit that I failed to fully grasp basic principles that underpinned my military service; that is, I remembered my high school civics lessons, but I didn’t really internalize them. My peers and I thought that phrases like “the common defense,” the relationship between “military” and “civil” power, and “government of the people, by the people, for the people”—as expressed in the Constitution, Declaration of Independence, and Gettysburg Address, respectively—were just platitudes thrown around by academics and politicians. We were wrong. The ability to apply military force is an obligation of profound significance for the American people, and we didn’t fully appreciate that idea in the context of contractors. I think of a great quotation that I wish I had heard back when I sat where you do now: “[D]emocratic government is responsible government—which means accountable government—and the essential problem in ‘contracting out’ is that responsibility and accountability are greatly diminished.”58

As someone observed in 2005, “To put it bluntly, the incentives of a private company do not always align with its clients’ interests—or the public good.”59 After all, “even when contractors do military jobs, they remain private businesses.”60 Therein resides even more concern: the possible lack of control over contractors’ actions and, potentially, their qualifications. For example, “U.S. Army investigators of the Abu Ghraib prisoner-abuse scandal found that . . . all of the translators and up to half of the interrogators involved were private contractors” while “approximately 35 percent of the contract interrogators lacked formal military training as interrogators.”61 Additionally, remember that private companies retain full control over which contracts they will enter into and can even refuse to perform a job that they’ve agreed to if it becomes too perilous or unprofitable.62 Granted, if contractors abandon their duties, they might incur some financial penalties—but rarely anything more serious. On the other hand, if you—as a military member—walk off the job, you could be court-martialed.63

Really, the contract itself provides the only control or oversight of contractors and their employees. With limited exceptions, commanders and their staffs cannot supervise contractors.64 Instead, service members must work through contracting officers if any changes to a contract become necessary, and commanders have no disciplinary authority over a contractor’s employees.65

Eventually, some analysts started asking how to improve this arrangement, particularly given the possibility that third parties could equate contractors’ actions with those of the American government. One possible answer became reliance upon the Military Extraterritorial Jurisdiction Act (MEJA), which made someone, such as a contractor, who is “employed by or accompanying the Armed Forces outside the United States,” criminally liable if he or she engages in an act outside the United States that would have constituted a crime had it occurred inside the United States.66 That said, any such prosecution would remain at the discretion of a US attorney.67 This contrasts starkly with provisions of the Uniform Code of Military Justice (UCMJ, which has worldwide applicability to American military personnel and whose prosecutorial discretion resides with commanders.68 Sure, a change in the law supposedly made contractors subject to the UCMJ in times of a “declared war or a contingency operation.”69 Nevertheless, as a matter of practicality, political realities rendered the change exceedingly difficult to implement.

Military reliance on contractors continued, with the term inherently governmental progressively becoming less meaningful.70 Because of advancements in technology, even the operation of major weapon systems—such as the F-117A stealth fighter, M1-A tank, Patriot missile, and Global Hawk—became “contractor dependent,” a situation that encountered only few objections.71 As time passed, contractors guarded our fence lines and handled munitions. They shoveled snow, treated the sick and wounded, repaired buildings, paid the troops, processed military awards and decorations, and even served as air traffic controllers. The response to anyone who objected was, “If the Air Force can hire a contractor to remotely pilot a combat aircraft in Iraq, or if the federal government can hire private employees to battle insurgents, are any functions really ‘inherently governmental’ anymore?”

Furthermore, as contractors integrated them­selves more completely into the Air Force’s operations, they actually began to compete with the military for talent.72 Positions offered by certain private firms to military members allowed them to earn “anywhere from two to ten times what they made in the regular military”; for example, in Iraq, former special forces personnel earned as much as $1,000 a day as contractors.73 Most significantly, many contractors actively recruited recent retirees or military members trained for a specific job at government expense.74 We had started down a slippery slope, and there was no end in sight.

Ultimately, the military and private industry began to blend in ways we had never seen before, producing a direct impact upon our military culture. As a student here at ACSC, for example, I remember living in base housing in which only military members and their families resided. I drove through that area today and saw a lot of nonmilitary faces. Many years ago, government officials decided to privatize a substantial portion of military family housing, thereby merging private corporations—and their understandable desire for financial profit—with our housing communities.75 These arrangements permitted such companies to control on-base real estate for 50 years, and we allowed civilians with no military affiliation to live on our bases if the housing areas weren’t full, thereby assuring contractors a predictable stream of income.76

Thus, life on military installations gradually became less “military.” As civilians moved into our housing areas, they brought varied lifestyles, including certain social practices that clashed with traditional military ones. In response, many of our families flatly refused to live in privatized housing, ultimately leading to even greater numbers of civilians living on base. I associate some of my fondest memories from my early years of service with the close personal and professional relationships that my family developed with other military families who lived in base housing. Sadly, those times are gone.

To cite another example, the Air Force also decided to partially contract out the function of military gate guards in order to make uniformed security forces available for other missions.77 Yes, the effect came about only gradually, but in the end, no one called us “Sir” or “Ma’am,” and no one saluted officers when they entered the base. We didn’t complain because we feared being labeled self-important or pompous—but we should have complained. You see, we hear about the importance of military customs and courtesies, but contracted civilians reduced them to mere “customer service.”78 Perhaps most importantly, back when military personnel served as gate guards, they presented an unambiguous image to members of the American public who passed by our installations—but that changed too. Outsourcing of that gate-guard function—though barely noticeable in the larger scheme of our national defense—became a microcosm of the larger issue: the erosion of our military culture. You see, it was happening before our very eyes.

A Possible Future

Against this backdrop, we entered the post–Iraqi Freedom world. As I mentioned before, at this point, two trend lines began converging: increased military involvement in domestic issues and rise of the military’s reliance on contractors. When they collided, we found ourselves in trouble.

Remember, our reliance on contractors began long before the bird-flu epidemic of 2008, the New York hurricane of 2010, or the American Midwest earthquake of 2015.79 As you recall, these events demanded significant domestic military action, augmented by large numbers of contractors.

Think, if you will, about the bird-flu epidemic, when US Northern Command enforced a three-state quarantine by deploying thousands of active duty troops into metropolitan areas. Remember how masses of civilians tried to flee infected areas and how military aircraft threatened to shoot down civilian jetliners after their pilots tried to violate the quarantine. Remember the civilian deaths during those months of turmoil and the claims of many observers that somehow the military was responsible, either by acting too harshly or by not acting quickly enough to quell violence. My point? Just think for a minute about how the military’s status suffered in the weeks and months that followed. That’s a danger inherent in domestic military operations.

Next, think about the New York hurricane of 2010, when we saw a near repeat of the bird-flu riots. But also remember the huge numbers of contract security guards who augmented military forces and law enforcement. After the crisis, do you recall the allegations of physical abuse that many New Yorkers reported they had suffered at the hands of security guards? How some civilians complained—perhaps rightfully—that we violated their constitutional rights?80 I am reminded of the lessons that we should have learned from Hurricane Katrina in 2005, when discipline apparently broke down among some law-enforcement personnel in New Orleans.81

Finally, remember the earthquake of 2015. By that time, law-enforcement entities, the military, contractors, and other federal and state agencies seemed to have blended into a single organization. Remember how organizational structures overlapped to the extent that no one knew who was in charge. At the time, I noticed that contractors and military members wore similar uniforms, and I remember asking myself, “How did we get here?”

I was in the affected area after the earthquake, and I can tell you without hesitation that some Americans genuinely feared people in uniform.82 Granted, they had already gone through a traumatic experience, but they also simply feared the very people that our government had sent to help. Everyone remembered the bird-flu riots as well as the allegations of abuse from New York. In the end, the public couldn’t tell the difference between a service member and a contractor; you see, each person in the “military-industrial complex” looked alike, reported to the same boss, wore the same clothes—and carried the same weapons.83

The Erosion of Military Culture?

As I close, I ask you to consider the fact that our government has “long recognized that the military is, by necessity, a specialized society separate from civilian society.”84 Consequently, other governmental officials historically have had a willingness to defer to the judgments of military decision makers.85

Well, according to some folks in our government, “a specialized society separate from civilian society” simply no longer exists. They argue that the blending of contractors and interagency workers into our domestic military structure has ended a separate culture. After all, why should military members fall into some different category when they do the same job as contractors? Today, does anything really set the military apart?

To cite a quick example, currently in 2017 you should know about the push to expand the MEJA as a comprehensive replacement for the UCMJ.86 As you might recall from my earlier comments, the MEJA served as a mechanism for addressing criminal activity among civilians in support of combat operations overseas. Now, however, some people argue that civilian laws should remain the sole means of addressing criminal activity by all members of the “defense team”—that we should treat contractors, military, National Guard, and other employees equally under the law. To the uninitiated, this argument might seem compelling. However, if this effort succeeds, commanders will no longer be involved in even the most serious disciplinary issues affecting their troops. Interestingly, some analysts say that these efforts arise from the fact that few lawmakers nowadays have any military experience.87

I ask you to consider carefully a couple of final thoughts. First, think about George Washington’s famous admonition that “discipline is the soul of an army.”88 If that’s true—and I think it is— where does that leave us today, when we rely so heavily on contractors? Second, as you think about the proper role of a military in a democracy, I want you to consider Chief Justice Earl Warren’s observation that “the military establishment is, of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset.”89 Has our society somehow lost the ability to limit the military establishment’s reach? Does it matter that the definition of our “military establishment” has radically changed?

In terms of the bottom line, we face some tough times, but I’m confident that we’ll work through them. This afternoon, I’m headed back to Washington to continue reconstituting our force, but before I go, I really want to know what you think.

*I am extremely grateful to Dr. Donald MacCuish of the Air Command and Staff College faculty for his guidance and mentorship throughout this project.

[Feedback? Email the Editor ]

Notes

1. Quadrennial Defense Review Report (Washington, DC: Department of Defense, 2006), v–ix, http://www.comw.org/qdr/qdr2006.pdf (accessed 17 April 2007).

2. According to Col Thomas X. Hammes, fourth-­generation warfare “is an evolved form of insurgency.” It is “rooted in the fundamental precept that superior political will, when properly employed, can defeat greater economic and military power” and “does not attempt to win by defeating the enemy’s military forces.” Instead, it “directly attacks the minds of enemy decision makers to destroy the enemy’s political will.” Fourth-generation wars are protracted affairs, “measured in decades rather than months or years.” Col Thomas X. Hammes, The Sling and the Stone: On War in the 21st Century (St. Paul, MN: Zenith Press, 2004), 2.

3. Richard H. Kohn, “Using the Military at Home: Yesterday, Today, and Tomorrow,” Chicago Journal of International Law 4 (Spring 2003): 182–83.

4. Ibid, 183. According to Eugene Fidell, a former Coast Guard judge advocate now in private practice, “Title 10 of the U.S. Code carefully delineates the circumstances under which the Defense Department can make personnel available to operate equipment, at the request of a federal law enforcement agency. Under Section 374, the defense secretary can aid federal civil authorities with ‘aerial reconnaissance’—but only in cases related to immigration, customs, narcotics trafficking or terrorism.” Noting that the first three do not relate to the sniper case, Fidell remarks that during the investigation of the sniper case, US government officials stated that they had no evidence of any terrorism connection. Fidell also refers to Department of Defense Directive (DODD) 5525.5, DoD Cooperation with Civilian Law Enforcement Officials, 15 January 1986, which prohibits the military from “directly assisting [civilian law-enforcement officials] in the surveillance or pursuit of individuals.” Elaine M. Grossman, “Former JAG: Military Aid in D.C. Sniper Pursuit May Have Broken Law,” Inside the Pentagon, 14 November 2002, http://www.fas.org/sgp/news/2002/11/itp111402. html (accessed 17 April 2007).

5. Kohn, “Using the Military at Home,” 190.

6. Grossman, “Former JAG”; and Kohn, “Using the Military at Home,” 190.

7. Kohn, “Using the Military at Home,” 190.

8. Pres. George W. Bush, National Strategy for Homeland Security (Washington, DC: White House, July 2002), 48, http://www.whitehouse.gov/homeland/book/index
.html (accessed 17 April 2007).

9. “Senators Collins, Lieberman Hold Katrina Hearing, Acting FEMA Director Testifies,” Senate Committee on Homeland Security and Governmental Affairs, 6 October 2005, http://www.senate.gov/~gov_affairs/index. cfm?FuseAction=PressReleases.Detail&Affiliation=C&PressRelease_id=1113&Month=10&Year=2005 (accessed 17 April 2007); and “U.S. Senate Homeland Security and Governmental Affairs Committee Hearing on DHS Preparation for and Response to Hurricane Katrina,” washingtonpost.com, 15 February 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006 /02/15/AR2006 021501475.html (accessed 17 April 2007). “President Bush started the buzz about an expanded domestic role for the military in September, when he lauded the military response to Hurricane Katrina. In his Sept. 15 address to the nation from hurricane-stricken New Orleans, Bush said, ‘A challenge on this scale requires greater federal authority and a broader role for the armed forces.’” John A. Tirpak, “Domestic Roles for Troops?” Air Force Magazine 88, no. 12 (December 2005): 10, http://www.afa.org/magazine/Dec2005/1205watch.asp.

10. Tom Philpott, “Posse Comitatus,” Air Force Magazine 88, no. 11 (November 2005): 29, http://www.afa.org/magazine/nov2005/1105congress.asp.

11. Ann Scott Tyson, “Pentagon Plans to Beef-Up Domestic Rapid-Response Forces,” Washington Post, 13 October 2005, 4.

12. Ibid.

13. Juliana Gruenwald, “Governors Oppose Expanding Military’s Role in Disasters,” National Journal’s CongressDailyAM, 20 October 2005, 1.

14. “If the [bird-flu] virus gained the ability to pass easily between humans the results could be catastrophic. Worldwide, experts predict anything between two million and 50 millions deaths.” “Q&A: Bird Flu,” BBC News, 20 November 2006, http://news.bbc.co.uk/1/hi/health/ 3422839.stm (accessed 17 April 2007). “In October [2005, President] Bush suggested the military might take a leading role in responding to a flu pandemic. The military, he said, with the ability to ‘plan and move’ might be the best solution to effecting the quarantines.” Tirpak, “Domestic Roles for Troops?” 10–11.

15. Edward P. Richards et al., “Bioterrorism and the Use of Fear in Public Health,” Urban Lawyer 34, no. 3 (Summer 2002): 689, http://biotech.law.lsu.edu/cphl/articles/urbanlawyer.pdf.

16. Pres. George W. Bush, National Strategy for Pandemic Influenza (Washington, DC: White House, November 2005), 9, http://www.whitehouse.gov/homeland/nspi.pdf (accessed 17 April 2007).

17. “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” Posse Comitatus Act, US Code, vol. 18, sec. 1385. By its terms, the act is technically inapplicable to Marine Corps and Navy forces. However, it has been construed to apply to them by virtue of long-standing policy.

18. “The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc. Williams v. State, 253 Ark. 973, 490 S.W.2d 117, 121.” Black’s Law Dictionary, 6th ed., s.v. “posse comitatus.” See also Sean J. Kealy, “Reexamining the Posse Comitatus Act: Toward a Right to Civil Law Enforcement,” Yale Law and Policy Review 21 (Spring 2003): 389.

19. Kealy, “Reexamining the Posse Comitatus Act,” 389.

20. Ibid.

21. Ibid.

22. Ibid., 391.

23. US Constitution, art. 1, sec. 8, cl. 15, National Archives Experience, http://www.archives.gov/national-archives
-experience/charters/constitution_transcript.html (accessed 17 April 2007). This clause was invoked on only a limited number of occasions, including Shay’s Rebellion (1786–87), the Whiskey Rebellion (1794), the Dorr Rebellion (1842), and the Civil War (1861–65). Kealy, “Reexamining the Posse Comitatus Act,” 391.

24. Kealy, “Reexamining the Posse Comitatus Act,” 391.

25. Ibid.; and Alexander Hamilton, “The Consequences of Hostilities between the States,” Federalist no. 8, 20 November 1787, The Federalist Papers, Library of Congress, http://thomas.loc.gov/home/histdox/fed_ 08.html (accessed 17 April 2007).

26. James Madison, “General View of the Powers Conferred by the Constitution,” Federalist no. 41, n.d., The Federalist Papers, Library of Congress, http://thomas.loc.gov/home/histdox/fed_41. html (accessed 17 April 2007).

27. Jack H. McCall Jr. and Brannon P. Denning, “Mission Im-Posse-ble: The Posse Comitatus Act and Use of the Military in Domestic Law Enforcement,” Tennessee Bar Journal 39 (June 2003): 31, http://www.tba. org /Journal_Tbarchives/tbj-jun03.html.

28. “For America’s military and political leaders, one of the central lessons of the 1990s was to avoid ‘mission creep,’ where U.S. troops face an ill-defined and ever-expanding objective for which they are neither well-prepared nor supported. . . . Today, mission creep is back. . . . Now it looks like the Pentagon could soon supplement its military, reconstruction and diplomatic portfolios with domestic disaster relief responsibilities.” Julianne Smith and Derek Chollet, “The Return of U.S. Mission Creep,” Defense News, 10 October 2005, http://www.defensenews.com/story.php?F=1164780&C=commentary (accessed 17 April 2007).

29. Vince Rawley, “Changing of the Guard: Revised Missions, Chain-of-Command Pattern Emerging,” Army Times, 25 November 2002, 23.

30. Lt Col Michael J. Guidry and Col Guy J. Wills, “Future UAV Pilots: Are Contractors the Solution?” Air Force Journal of Logistics 28, no. 4 (Winter 2004): 6, http://www
.aflma.hq.af.mil/lgj/Vol%2028%20No%204%20www.pdf.

31. Lt Col Stephen M. Blizzard, “Increasing Reliance on Contractors on the Battlefield,” Air Force Journal of Logistics 28, no. 1 (Spring 2004): 5, http://www.aflma.hq.af.mil/lgj/Vol%2028%20No%201%20www.pdf.

32. “From 1989 to 1999, the active-duty force was reduced from 2,174,000 to 1,453,000. Meanwhile, the military continued to fill its inventory with sophisticated equipment, increasing the military’s dependency on civilian specialists or contractors. ‘Highly technical and complex weaponry is flooding the Armed Forces, requiring contractors to be hired to train military operators and maintain and operate the systems.’” Guidry and Wills, “Future UAV Pilots,” 6. “In no conflict has the civilian footprint supporting military operations been larger than in Iraq.” Michael N. Schmitt, “Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees,” Chicago Journal of International Law 5, no. 2 (Winter 2005): 511, http://www.michaelschmitt.org/images/Schmitfinal.pdf.

33. Schmitt, “Humanitarian Law and Direct Participation,” 512.

34. Ibid.

35. Lt Col James E. Manker Jr. and Col Kent D. Williams, “Contractors in Contingency Operations: Panacea or Pain?” Air Force Journal of Logistics 28, no. 3 (Fall 2004): 14, http://www.aflma.hq.af.mil/lgj/Vol%2028 _No3_ WWW.pdf.

36. “Contractors recently deployed with the 3d Infantry Division to Iraq to support the high-tech digital command and control systems still under development. Similarly, when the Air Force deployed the Predator unmanned aerial vehicle, contractor support was required because the vehicle was still in development, and Air Force personnel had not been trained to maintain the Predator’s data link system.” Blizzard, “Increasing Reliance on Contractors,” 8.

37. Guidry and Wills, “Future UAV Pilots,” 5.

38. Ibid. For a discussion of the Global Hawk’s capabilities and operators’ responsibilities, see “RQ-4A Global Hawk (Tier II+ HAE UAV),” FAS [Federation of American Scientists]Intelligence Resource Program, http://www.fas.org/ irp/program/collect/global_hawk.htm (accessed 19 November 2007).

39. “UAV contractor pilots could be considered unlawful combatants [if they take a direct part in hostilities].” Ibid., 9–10. “Pursuant to Article 51.3 of the 1977 Protocol Additional I to the Geneva Conventions, . . . civilians enjoy immunity from attack during international armed conflict ‘unless and for such time as they take a direct part in hostilities.’ Those who do directly participate may be legally targeted[,] . . . do not benefit from prisoners of war protections[,] . . . [and] may be punished for their actions” (emphasis in original). Schmitt, “Humanitarian Law and Direct Participation,” 519–20.

40. Blizzard, “Increasing Reliance on Contractors,” 8.

41. Ibid., 6.

42. “A new Marine Corps truck was designed to be at least partially contractor supported because the limited number of assets made contractor support more cost effective. Similarly, the Army’s Guardrail surveillance aircraft is entirely supported by contractors because it was not cost-effective to develop an organic maintenance capability.” Ibid., 8.

43. Manker and Williams, “Contractors in Contingency Operations,” 19.

44. Schmitt, “Humanitarian Law and Direct Participation,” 514.

45. Ibid.

46. Bill Sizemore, “Blackwater USA Says It Can Supply Forces for Conflicts,” Virginian-Pilot [Norfolk], 30 March 2006, http://content.hamptonroads.com/story.cfm?story =102251&ran=202519&tref=po (accessed 17 April 2007).

47. Jonathan Finer, “State Department Contractors Kill Two Civilians in N. Iraq,” Washington Post, 9 February 2006, A18.

48. Ibid.

49. Ibid.

50. See, for example, Brian Bennett, “America’s Other Army,” Time.com [in partnership with CNN], 18 October 2007, http://www.time.com/time/world/article/ 0,8599,1672792,00.html?xid=feed-cnn-topics.

51. Rebecca Rafferty Vernon, “Battlefield Contractors: Facing the Tough Issues,” Public Contract Law Journal 33 (Winter 2004): 376.

52. Federal Activities Inventory Reform (FAIR) Act, US Code, vol. 31, sec. 501.

53. Vernon, “Battlefield Contractors,” 376; and Department of Defense Instruction (DODI) 3020.41, Contractor Personnel Authorized to Accompany the U.S. Armed Forces, 3 October 2005, par. 6.1.5.

54. “Contractors have been used to fill the void created by the drawdown in troop strength.” Blizzard, “Increasing Reliance on Contractors,” 7.

55. George Cahlink, “Sharp Focus on Air Force Civilians,” Air Force Magazine 89, no. 2 (February 2006): 87, http://www.afa.org/magazine/feb2006/0206civilian.asp.

56. P. W. Singer, “Outsourcing War,” Foreign Affairs 84, no. 2 (March/April 2005): 128; and Blizzard, “Increasing Reliance,” 7.

57. Listings of contractors related to operations in Iraq and Afghanistan are available online from “Windfalls of War: U.S. Contractors in Afghanistan and Iraq,” Center for Public Integrity, http://www.publicintegrity.org/wow (accessed 17 April 2007).

58. Singer, “Outsourcing War,” 126.

59. Ibid., 124.

60. Ibid.

61. Ibid., 127, 125.

62. Ibid., 124.

63. “Article 86—Absence without Leave,” Manual for Courts-Martial (2005 Edition) (Washington, DC: Government Printing Office, 2005), IV-12, http://www.army.mil/ usapa/epubs/pdf/mcm.pdf (accessed 17 April 2007).

64. Such exceptions would constitute “personal service contracts,” which are generally prohibited. See Federal Acquisition Regulation (Washington, DC: General Services Administration, Department of Defense, National Aeronautics and Space Administration, March 2005), subpart 37.1, http://www.acqnet.gov/far (accessed 17 April 2007).

65. Ibid., subpart 1.6. “Contractors . . . remain private businesses and thus fall outside the military chain of command and justice systems.” Singer, “Outsourcing War,” 124.

66. Military Extraterritorial Jurisdiction Act, US Code, vol. 18, sec. 3261.

Contractor personnel fulfilling contracts with the U.S. Armed Forces may be subject to prosecution under Federal law, including but not limited to the Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261 . . . which extends U.S. Federal criminal jurisdiction to certain DoD contingency contractor personnel, for certain offenses committed outside U.S. territory. . . . Pursuant to the War Crimes Act, 18 U.S.C. § 2441, . . . Federal criminal jurisdiction also extends to conduct that is determined to constitute a violation of the law of war when committed by a civilian national of the United States. In addition, when there is a formal declaration of war by Congress, DoD contingency contractor personnel may be subject to prosecution under the Uniform Code of Military Justice (UCMJ).

DODI 3020.41, Contractor Personnel, par. 6.1.3.

67. “The U.S. Attorney for the District in which there would be venue for a prosecution may, if satisfied that probable cause exists to believe that a crime has been committed and that the person identified has committed this crime, file a complaint. . . . As an alternative, the U.S. Attorney may seek the indictment of the person identified” (emphasis added). DODI 5525.11, Criminal Jurisdiction over Civilians Employed by or Accompanying the Armed Forces outside the United States, Certain Service Members, and Former Service Members, 3 March 2005, par. 6.2.3.

68.
Military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. (emphasis added)

U.S. v. Solario, in Supreme Court Reporter, vol. 107 (1987), 2924. See also “Preamble,” Manual for Courts-Martial, I-1.

69. See P. W. Singer, “The Law Catches Up to Private Militaries, Embeds,” and citations therein regarding the amendment to Article 2 of the UCMJ, DefenseTech.org, http://www.defensetech.org/archives/003123. html (accessed 17 April 2007).

70. Inherently governmental functions are not subject to outsourcing although that concept may be changing. For a discussion of the apparently evolving definition of the term inherently governmental, see Vernon, “Battlefield Contractors,” 376–77.

71. Blizzard, “Increasing Reliance,” 8.

72. According to Lt Gen Steven Blum, chief of the National Guard Bureau, “We find ourselves, in some cases, in a bidding war for some of our most experienced soldiers and airmen.” Matt Kelley, “Contractors, Military in ‘Bidding War,’ ” USA Today, 31 July 2005, http://www.usa today.com/news/world/iraq/2005-07-31-contractors-private_x.htm (accessed 17 April 2007).

73. Singer, “Outsourcing War,” 129.

74. “There is a growing trend at the Pentagon to contract out intelligence jobs that were formerly done primarily by service personnel and civil service employees. . . . It should come as no surprise that many younger military and government-trained intelligence personnel, who have top security clearances, are resigning to take jobs in the private sector.” Walter Pincus, “Increase In Contracting Intelligence Jobs Raises Concerns,” Washington Post, 20 March 2006, 3.

75. US Code, vol. 10, sec. 2871ff.

76. Jim Garamone, “DoD’s Privatized Housing Program Hits High Gear,” American Forces Information Service, 16 February 1999, http://www.defenselink.mil/news/Feb1999/n02161999_9902162.html (accessed 17 April 2007). In many agreements, if privatized housing’s military-occupancy rates drop below specified amounts, vacant housing may be leased to civilians with no military affiliation. This may raise substantial issues pertaining to such individuals’ status, along with issues concerning commanders’ obligations to maintain good order and discipline on the installation. See also General Accounting Office, Military Housing: Continued Concerns in Implementing the Privatization Initiative, Report to Congressional Committees, GAO/NSIAD-00-71 (Washington, DC: General Accounting Office, March 2000), 29, http://www.gao.gov/archive/2000/ns00071.pdf (accessed 17 April 2007).

77. See, for example, Gary Emery, “Civilian Guards Tapped to Control Base Gates,” Air Force Print News Today, 19 May 2004, http://www.af.mil/news/story.asp?storyID= 123007764 (accessed 17 April 2007).

78. “Military customs and courtesies go beyond basic politeness; they play an extremely important role in building morale, esprit de corps, discipline, and mission effectiveness. Customs and courtesies ensure proper respect for the military members and build the foundation for self-discipline” (emphasis added). Air Force Pamphlet (AFPAM) 36-2231, vol. 2, United States Air Force Supervisory Examination (USAFSE) Study Guide, 1 July 2005, 123, par. 7.1, http://www.e-publishing.af.mil/pubfiles/af/36/afpam36
-2241v2/afpam36-2241v2.pdf (accessed 17 April 2007).

79. See generally Bush, National Strategy for Pandemic Influenza. For details concerning plans regarding the prospect of such a hurricane striking the New York metropolitan area, see the New York City Office of Emergency Management’s guide: “NYC Hazards: Coastal Storms and Hurricanes,” NYC.gov, http://www.nyc.gov/html/oem/html/hazards/storms.shtml (accessed 17 April 2007). For details concerning plans regarding a possible earthquake in the central United States, see the Missouri Department of Natural Resources’ guide: “Earthquake Facts about the New Madrid Seismic Zone,” http://www.dnr.mo.gov/­geology/geosrv/geores/techbulletin1.htm (accessed 17 April 2007).

80. “Civilian rule is basic to our system of government. . . . Military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces” (emphasis added). Bissonette v. Haig, in Federal Reporter 2d, vol. 776 (8th US Circuit Court of Appeals, 1985), 1384.

81. Adam Nossiter, “New Orleans Probing Alleged Police Looting,” Washington Post, 30 September 2005, A10, http://www.washingtonpost.com/wp-dyn/content/article/ 2005/09/29/AR2005092901975.html (accessed 17 April 2007).

82. See Bissonette v. Haig, 1384.

83. Pres. Dwight Eisenhower warned against overreaching by a military-industrial complex:

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. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together. (emphasis added)

“Military-Industrial Complex Speech, Dwight D. Eisenhower, 1961,” Avalon Project at Yale Law School, http://www .yale.edu/lawweb/avalon/presiden/speeches/eisenhower 001.htm (accessed 17 April 2007).

84. Parker v. Levy, in Supreme Court Reporter, vol. 94 (1974), 2547.

85. “Courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Goldman v. Weinberger, in Supreme Court Reporter, vol. 106 (1986), 1310.

86. Military Extraterritorial Jurisdiction Act, US Code, vol. 18, sec. 3261ff.

87. For a listing of current members of Congress with military backgrounds, along with limited details concerning their service, see “Veterans in 108th Congress (167),” House Committee on Veterans’ Affairs, http://veterans.house.gov/vetlink/vetsincongress.html (accessed 17 April 2007).

88. Michael C. Thomsett and Jean Freestone Thomsett, War and Conflict Quotations: A Worldwide Dictionary of Pronouncements from Military Leaders, Politicians, Philosophers, Writers and Others (Jefferson, NC: McFarland & Company, 1997), 36.

89. Laird v. Tatum, in Supreme Court Reporter, vol. 92 (1972), 2318.


Contributor

Maj Bryan D. Watson

Maj Bryan D. Watson (BA, JD, University of Missouri–Columbia) is a military judge, stationed at Randolph AFB, Texas. He presides over courts-martial, military tribunals, administrative boards, judicial investigations, and special hearings. In previous assignments, he has worked in the area of criminal law as both a prosecutor and defense counsel, including service as a special assistant US attorney. He has represented the United States in various matters, including tort claims, procurement contracts, and labor/employment law, and has worked in the areas of international/operations law. Previous assignments include Moody AFB, Georgia; F. E. Warren AFB, Wyoming; Langley AFB, Virginia; and Maxwell AFB, Alabama. He is licensed to practice before the Supreme Court of Missouri, the United States Court of Appeals for the Armed Forces, and the Air Force Court of Criminal Appeals. Major Watson is a graduate of Squadron Officer School and a distinguished graduate of Air Command and Staff College.


Disclaimer

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University


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