The apparently unjustified killings of Iraqi civilians by employees of the private military company Blackwater USA in al-Nissour on September 16 has triggered debate and hand-wringing about the legal situation of contractors involved in the US military operation in Iraq. Despite Congress's expansion of the uniform code of military justice last November to cover contractors, the defense department has failed to give implementation guidelines for this expansion. Therefore, the provision that originated as Paul Bremer's Order 17 granting contractors immunity from prosecution persists in Iraqi law, and means that contractors continue to exist above the law and outside its grasp - unlike soldiers, they can't be court-martialed; unlike civilians, they can't be prosecuted under the laws of the land. Sadly, as the investigative reporter Jeremy Scahill has testified for US senators, "impunity and immunity have gone hand in hand."
As a matter of justice, we should all hope that the Blackwater employees are held accountable for their actions. However, the legal predicament that contractors' crimes raises is a symptom of a deeper, extremely troubling problem: in allowing the Bush administration to significantly privatize the fighting force for the war, we have undermined our ability as citizens to weigh the costs of the conflict, and to demand that what is done in our name is done in a manner consistent with the liberal democratic principles that we as a nation claim to be defending.
It would likely come as a surprise to most Americans to learn that, in addition to the more than 168,000 American military personnel currently engaged in Iraq, there is a private shadow army of nearly 200,000 contractors supporting, and, in some cases, fighting and dying along side the troops. Not only is this private army outside the bounds of public justice, the costs of this army are largely hidden from public view. The material cost is opaquely smuggled in through war funding resolutions; the human cost is never publicly reported. Payments for contractors, who often get work through no-bid contracts, amount to tens of billions of dollars. More than 1,000 of these contractors have died and another 13,000 have been injured - figures that are excluded from official casualty numbers. (To be fair, not all contractors are warriors: no one knows for sure how many of the contractors are engaged in combat-like operations rather than support services, but assuming parity of mortality rates with official US troops, one could conservatively estimate that upwards of 25,000 contractors are so-engaged - in other words, about a "surge" worth.)
Even more troubling than the fact that these costs are being hidden is the way that the money involved is being used to undermine one of the key moral features of American democracy: the all volunteer fighting force.
Bush administration officials are adamant that we need Blackwater and other contractors - that we do not have adequate military capacity to execute the functions that contractors currently carry out. Surely this doesn't mean that America, with the most advanced military on earth, doesn't have the know-how to execute these tasks or to train people to do them. So it must mean that we simply don't have the manpower to do them - that not enough volunteers have come forward to join the military, or that the administration knows that the public wouldn't countenance sending more soldiers into war.
In effect, the government has used contractors as a way to covertly put more troops on the ground and to attract those who can't be motivated by the cause but who can be motivated by dollars. So-called security personnel working for contractors earn princely salaries many times what a soldier earns. And so, rather than facing the hard slog of convincing Congress and the public to authorize sending more soldiers, the administration has simply bought additional soldiers on the sly.
One of the many reasons why the civilized world has come to accept a moral prohibition on mercenaries is that moral intuition tells us that money is the wrong reason for a person to go onto a battlefield, that war is a unique environment and that soldiers who kill and risk dying for a cause should do so primarily because the cause is right, not because the price is right.
By using vast sums to lure individuals onto the battlefield, we disregard our commitment - fundamental to our way of life, to the justification of our system of government and indeed to our justification of the war itself - to respect the dignity of the individual. We use them as means to an end in a kind of martial prostitution.
Now, many have argued that we already practice a form of economic conscription in the US - that many who go into the US military do so because they have no other option. This is a separate question worthy of public debate, and perhaps we should work together to ensure that our society provides viable economic alternatives.
This should not distract us from the fact that by using Blackwater and other such companies our government is guilty of egregious economic conscription, of purposefully using the size of the purse rather than the justice of the cause to entice soldiers. And, perversely, this wrong is amplified by the fact that in the process we create an unjustified inequity between Blackwater personnel and US military soldiers who get paid far less.
In liberal democracies, the need to convince the populace that a war is worthy of its costs - in terms of blood and treasure - and the need to find volunteers to fight it are structural safeguards that limit the wars we fight. Perhaps if the government cannot find enough volunteers to fight this war, it means that the war should not continue to be fought. Otherwise, we Americans should openly revisit the national debate about conscription, rather than permitting the administration to covertly circumvent that prohibition with money.
As the US Congress debates the next round of war funding, and as the administration calls on Americans to support the troops, we should be conscious of the fact that we are not just funding support for our soldiers, but enabling the president to maintain a shadow army of soldiers of fortune on our behalf.
Daniel Baer is a faculty fellow at the Edmond J. Safra Foundation Center for Ethics at Harvard University.
© 2007 The Guardian