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Ethics and Military Contractors: Examining the Public-Private Partnership.

Stockdale Center for Ethical Leadership, United States Naval Academy (Citizens Oversight) (2009-04-23) McCain Conference

This Page: http://www.copswiki.org/Common/M873
Media Link: Media Archived Offline
More Info: Blackwater, Border Security, Private Mercenaries, War Profiteering

This conference was excellent. I understand that Erik Prince (Blackwater-Xe) also made a presentation, and it is alluded to by the other speakers, but the video of his talk was redacted.

It is extremely gratifying to see our military establishment finally grappling with the problem of mercenaries or "Private Military Contractors".

Particularly the ethics panel, this is a great reference for anyone who says Blackwater-like contractors are not a problem and are not much different from traditional military service.

About 10 hours of video presentations.

I recommend viewing in the order below:

Keynote

  • Dr. Thomas J. Griffith, Director, DoD National Security Studies Program, George Washington University

This keynote provides a broad overview of the problems and is referred to several times in later talks.

Ethics Panel:

Ethical challenges involved in the use of private military contractors.
  • 2008-09 Stockdale Center Fellows:
    • LCDR Joe McInerney,
    • MAJ Richard Higdon,
    • Dr. Thomas B. Grassey,
    • Dr. Susan Marble Barranca (Transcript of her talk provided below.)
  • Stockdale Center Director of Research, Dr. Edward Barrett

This ethics panel is absolutely excellent, particularly the talk by Dr. Susan Marble Barranca. I really like her statement that "Things that really count can't be counted."

MG. Eric T. Olson USA (Ret.)

  • This is one of the best talks.
  • Nothing good to say about Blackwater and the problem, but "Good contracting can lead to good results"
  • Says traditional military cannot provide logistics support.
  • Should contract out when civilians normally do it anyway, or if they do it better.

Issues Panel:

An overview of key debates revolving around private military contractors.
  • Mr. Michael Cohen,
  • Ms. Tara Lee, Senior Associate, Litigation Department and National Security practice group of Cooley Godward Kronish LLP,
  • Mr. Kevin Lanigen, Director of the Law and Security Program, Human Rights First

Ms. Tara Lee is an example of a typical attorney reaction to representing private military contractor firms, who has figured out a way to ignore all the important issues and come to the conclusion that there is no problem at all. I think this tendency is why attorneys have a bad ethical reputation. Needless to say, she differs markedly from the other speakers.

Policy Panel:

An overview of their respective departmental policies concerning private contractors.
  • Ms. Charlene Lamb, Deputy Assistant Secretary for International Programs, U.S. State Department,
  • Mr. Gary Motsek, Assistant Deputy Under Secretary of Defense (Program Support), Department of Defense,

Industry Panel (Excerpt)

The issue from the contractor's perspective. (This is where Erik Prince likely spoke but his talk was redacted.)
  • Mr. Douglas Brooks, President, International Peace Operations Association

Operators Panel (Excerpts)

The day-to-day operational realities of working with private contractors, from the military perspective.
  • CDR James Lee, USN,
  • LTC Dave Barnes, USA (Video not available.)

Other Keynotes and Luncheon Speakers

  • Dr. James Carafano, Heritage Foundation, Author: Private Sector, Public Wars: Contractors in Combat Afghanistan, Iraq, and Future Conflicts (2008)
    This guy has no clue. He believes there is no fundamental difference between traditional military and private contractors and almost all of it should be turned over to private companies. But we can expect that from the Heritage Foundation.
  • COL. T. X. Hammes, USMC (Ret.), Author: The Sling and the Stone: On War in the 21st Century (2004)
    • I sort of like this guy, particular since he has nothing kind to say about the choices of the Bush Administration. He brings out some aspects regarding private contracting that others have not.
    • Part 1: Media Archived Offline
    • Part 2: Media Archived Offline


I would be interested in including your comments and outlines of their points on this page.

Dr. Susan Marble Barranca

Stockdale Center of Ethics Fellow, Dr. Susan Marble Barranca

Well I'll start in any event, my name is Dr. Susan Marble Barranca, and yes, I am the sister of Tom Marble over there, and I'm also the class of '58 resident fellow here at the Stockdale Center. It is really an honor to be here.

When I first started my doctoral studies, ... [slide confusion]

The first one of these slides is supposed to say "Not everything that counts can be counted."

When I first was completing my doctoral studies at Trinity College in Dublin, I found myself generally well to the right of what they considered center. And I stayed with my legal pragmatist sort of approach by asking things like "Is it possible?" "Is it practical?" and "How much is it going to cost?" and "Who is going to pay?" which I thought was very important.

When I returned to the United States, I feel I am still a bit of a trial to my students here, scholars all. But I find myself now on the other side. Not so much to the left of center, but certainly from a much more fuzzy perspective. I kept asking "Wait a minute. What are we counting here?" What about the ethical.

Not everything that can be counted counts, and there may be many things that truly count that cannot be counted.

Last weekend, for example, an article appeared in the Washington Post. The writer advocates shutting West Point down, the Air Force Academy as well, and using some of the savings to increase ROTC scholarships. It's supposedly more than twice as expensive to produce a West Point product -- that's his words, not mine -- as it is an ROTC student. He asks, why not send these young people to more rigorous institutions on full scholarships and then upon graduation, give them the military education at a short-term military school. That, I think, is what we get when we start counting certain things.

I have ten minutes to sum up a years focus on private military contractors. I will say that my path went from Who They Are, to What They Do, and then to Are They Good, or Are they Bad.

What I found is that who they are is dealt with in a variety of books, pro/con and they also raised a lot of questions of the definition of "mercenary" and whether Private Military Contractors and Private Security Contractors are mercenaries, an we've heard a lot about that already today. What I will say is I will be talking primarily about the Private Military Contractors or Security Contractors who have guns.

Economics. We've heard a lot about that today as well. A lot of literature is focused on the question of cost, and cost benefits. Certainly Major Higdon [sitting to her left] focused on and many of the panelists have already talked about that.

And then, there is the law. We've heard about that as well today. This has been the general focus of "the bad." Allegations of criminal acts and war crimes, which were not reported nor prosecuted, including allegations that PMCs operated largely with impunity, certainly in Iraq in the earlier days. With no legal oversight nor accountability whatsoever. This is a very compelling issue and this will be argued, I believe, on both sides. Our issues panel this morning demonstrated that.

But I'm going to move on from that issue as well.

As to The Good, in the classical ethical sense, I found surprisingly little. The Good was generally argued in the sense that "This particular contactor is a really good guy" or "Who are you to say that all contractors are immoral?" or, "We couldn't do the job without them, so we kind of have to have them. Which is really situational or consequentialist argumentation of ethics at best but maybe its also better recognized as a general reluctance to judge anything as bad in this age if individual relativism and tolerance.

In short, although many in the field have purported to look at the ethical or moral issues surrounding the use of PMCs, or even mercenaries for that matter if you want to get into the terminology. What most did was to equate morality with legality, were crimes committed, for example, and to equate ethics with what kind of a person any particular Private Military Contractor was.

I have three points to make, and I want to always continue to try to come back to the ethics of the issue, questions of "The Good"

Point One. Questions of legality and economics do not exhaust the questions to be asked when looking into matters of public trust and the protection of the public. Neither are questions of criminal law or even war crimes the sum-total of the appropriate ethical framework by which the question of the use of PMCs can be analyzed.

Point Two. The relationship of the State and violence described as a monopoly by Max Weber is also foundational to the rule of law as envisioned by legal pragmatists. Those same legalists who often advocate for cost/benefit analyses instead of moral legalism. When you unhook the State monopoly on force you also undermine the State's enforcement of its laws. This is a very complex argument but I think it is very important and we musn't lose sight of it. And, we also can't disregard it because we are worried about what it means to have a "monopoly" on the use of violence, and the State's involvement in it.

No matter how we view the relationship of the people to the State, and there are, of course, a number of different ways. Whether it is "liberal" or "Neocondian" or a matter of identity per Naton Sharofsky or even, a question of the social contract. I think that none of these models would be satisfied by a Private Contractor permissably yielding deadly force, whether it is an individual or a corporation (a point that is going to be addressed by my collegue, Commander Joe Mc Inerney).

Point Three. Contractor Covenant. This has a philsophical but also theological overtones. Theological as illustrated in the Judeo-Christian of the relationship of God to his people, a permanent and undisolvable relationship, no matter what the circumstances or even the malfeasance of the people. And philosophical, the same point as picked up in Kant's "Imperfect Duties." Duties which are not precisely definable but which arise out of status relationships, such as a parent to a child, a husband to a wife, and arguably, State to Citizen.

The question in contract cases then what has or has not been done. The question in covenant cases is more like "Who are you" and "How has something been done." Private military contractors interactions are based on a strict contractual exchange. Money for services. Any other motivations are entirely gratuitous, and they may certainly may well be present -- heroism, bravery, cowardice -- but all these attributes are largely irrelevant to the contract itself, and to whether or not the contract has been performed.

Note that our military, although it has -- and I believe unwisely -- to clothe itself in contractual terms, it remains at the foundation, a covenant sort of relationship with its service men and women. We still talk about "Tours of Duty" rather than contract duration. And, in fact, a soldier can be extended indefinitely under certain circumstances, not matter what the "Contractual Period" was, that he originally signed on for.

By the same token, the nation's obligation to a soldier survives after the service period as exemplified by the continuing medical care and other assistance benefits provided to the individual. These are more than just benefits, however. It seems to spring out of a sense of obligation for continuing care for those who have risked life and limb for our country.

We can see the difference also in the standards that we expect our military to uphold. One of the difficulties in appling the Uniform Code of Military Justice, the UCMJ, to private military contractors is just that. The UCMJ standard is higher than what we expect of our citizens under the criminal law. Conduct "unbecoming" is unconstitutionally vaque when criminally charged against a common citizen. It has been consistently upheld, however, when it's charged against a member of the military.

What we count. We tend to count what it costs. We tend to count time, how long will it take? And, how many. How many deaths, how many transgressions, as in law breaking or prosecutions, depending on who you are. And please note that passing more laws or training more policemen is part of this category of we want to count it better.

Some people might say that we might also count efficiency here, or even effectiveness, but I would say that we count efficiency only as far as it relates to the above categories, because otherwise we have to consider efficiency in term of having met another goal. Which leads me to my final point.

What Counts? Here I return to our basic problem, I think. What is good? And what is the good that we should be aiming for? And, what if we don't agree? How can we calculate the uncountable which somehow counts? And, how do we account for certain outcomes with the best of intentions, let alone the unknowable and inscrutable human motivations. In many ways this describes the ethical project, the effort to come to grips with just those problems.

What I would say though, what counts is more than the how's, the how much, the how long, the how many. It's more than the why or the who. Don't get me wrong, I'm not saying we should not count economic or criminal impact. Nor am I saying that our interventions in Iraq or Afghanistan are somehow wrong because we tend to use criminal or economic justifications to explain them.

But what I am saying is that we are in danger of losing sight of what counts. Losing sight of the who and the why behind the counting or the doing. And losing sight of the who of human rights, and the why of intervention, and the why of intervention in one place but not another. It's also what, and to what end, as to something we should be counting, or what counts.

This looks to meaning which is in some ways at the heart of what religious traditions do. Philosophy has given us directions though, Aristotle's "Good Life and Golden Mean" Kant's "Duty", Utilitarian's Greatest good for the greatest number, and even legal situationalisms "It Depends", which is always one of my favorite answers as a lawyer.

But a lot depends on our answer. Aristotle said that the unexamined life is not worth living. I believe that our answer to this question in many ways is the summing up of who each of us is as a person. It certainly is the summing up of who we are as a nation.

Ultimately, what counts depends on the aim that we are pursuing. Our apparent inability to agree on that end, in a way common to all, should not prevent us from asking this question, otherwise we are directionless.

As warriors, you are undoubtedly familiar with Carl von Clausewitz's exortation to pursue one great decisive aim with force and determination. What is that great aim? Is it to be success in Iraq or Afghanistan with no consideration of "The Good", or is the pursuit of the The Good to be the item that leads us to contend in Iraq and Afghanistan?

I would like to end with a legal argument for those of you still resistant to the charms of pursuing the philosophical good life as a worthy measure by which to judge State use of PMCs [Private Military Contractors].

Respectfully, the question should not be why should they not allowed to continue to operate, but why have they been allowed to operate at all.

And this is a point that was also brought up earlier. The burden of proof ought to rest on those seeking a change, because in a way, this [the customary military concept] is not really a change, but a reversion, a return to what we abandoned, although certainly with many differences.

It's no acceptable reasoning to affirm that the use of PMCs is cheaper, faster, or more efficient. Neither is it enough in our society toward common values of the good merely to affirm that the activity, as yet, is not illegal. Mere legality does not translate into legitimacy, let alone the high standard of honor to which our military is called.

A long history and history of ideas first led to the shift from monarchs and their mercenary armies to the citizen soldiers of our republic committed to a democratic governance. We should proceed here -- if at all -- with the utmost caution.

More than anything, we should act deliberately, rather than allowing ourselves to be placed into the position of having to react unthinkingly. There is a lot at stake.

As Clausewitz also said, it is better to act quickly and to err than to hesitate until the time of action has passed. Arguably, it is the private military companies and corporations that have acted quickly. We, however, are in danger of hesitating until the time of action has passed. And neither can we get the genie back in the bottle by passing more laws after the fact.

Where does this leave us? We will hear much of the shear number of military contractors and the inability of the US to prosecute the war in Iraq or Afghanistan, or perhaps to keep shipping lanes clear without PSCs [Private Security Contractors]. This is, in fact, a doctrine of necessity, or "We can't do what we do without them, so therefore, we have to have them."

I'm leaving out the other very common argument that it is more cost efficient to use PSCs. It's likely also more cost efficient to kill or abandon our wounded soldiers, default on our educational and retirement promises to them or entirely to ignore the pleas of those under harsh tyrannies or natural disasters.

The good of ethics trumps cost, or else we have no ethics.

But neither is it enough just to say no. We will not be able to say no unless we can see how desperate the need is to retreat from this path and to refocus instead on the better aim, so that we can take decisive action rather than continue wringing our hands and saying "What's to be done, after all" and allow ourselves to be seduced down the path of what is expedient at the moment. If we aim at nothing, we will hit it, every time.

Thank you.

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Title Ethics and Military Contractors: Examining the Public-Private Partnership.
Publisher Stockdale Center for Ethical Leadership, United States Naval Academy (Citizens Oversight)
Author McCain Conference
Pub Date 2009-04-23
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Keywords Blackwater, Border Security, Private Mercenaries, War Profiteering
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Topic revision: r6 - 2016-05-16, UnknownUser
 

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