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“Created by the wars that required it, the machines now created the wars that it required.” – Joseph Alois Schumpeter, Imperialism and Social Classes

Patriotism and a desire to do right by their people has historically been enshrined in soldiers on the battlefield, but the definition of soldiers and the battlefield in contemporary warfare has called for a reexamination of the modern day war. The increasing ubiquity of private militaries both in terms of their boots on the ground overseas and their loafers in Washington has brought forth issues of legal incertitude over the course of the last half century. This article will examine the military-industrial complex of the United States, the violations of international law that occurred under the supervision of private military contractors (PMCs) and their accountability, while also discussing the ethical implications of their activity and the causal sequences that the industry is responsible for. 

The phrase ‘military-industrial complex’ first attracted popularity in the United States during the close of the Eisenhower administration, with his farewell address warning against the “acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex.” Although many claim that the military-industrial complex is a myth, there is sufficient evidence to refute this argument. For example, the primary purpose of the F-22 Raptor fighter planes that were commissioned during George W. Bush’s administration costing well over $100 million was to penetrate a Soviet air defense system that was made obsolete over a decade prior. However, the large quantities of the redundant military aircraft increases the suspicion that the purchase was made for the sole reason of appeasing the manufacturer. The military-industrial complex is an important and relevant precedent to understand before examining the role of private military contractors, because increases in defense spending and military stockpiles incentivizes policymakers and military generals alike to search for wars overseas where the recently acquired arms can be used. With the rising disfavor towards conscription following the Vietnam War-era, conventional soldiers were no longer adequate to fight wars of the scope that the powerful lobby of defense contractors like Lockheed Martin required, and a convenient alternative surfaced. When the United States began two of the most expensive wars of the twenty-first century in Iraq and Afghanistan, private military contractors became the obvious choice for President George W. Bush to deploy. By 2016, nearly one in four U.S. personnel in Iraq was a private contractor. This opens the question of the companies’ accountability to three different parties: to the American people who are funding the operations, to the host country whose citizens are bearing the brunt of the violations of international law through the use of torture, and to the companies themselves, including the use of foreign employees and rampant corruption along the supply chain. 

Operations conducted by PMCs do not, unlike traditional armed forces, report to Congress, nor are they subject to Freedom Of Information Act requests, a federal law requiring the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request. This allows these forces to operate beyond the public eye. Congress does not consider contractors to be, strictly speaking, “troops,” therefore allowing them to not only circumvent troop-level caps in places like Iraq, but also to elude oversight reports on the ground to the American people. This also permits the CIA or the DOD to expand the number of personnel on ground without facing consequences from Congress. This practice is called mission creep and is ubiquitous in warzones where deniability is crucial to protect the parties involved from further investigations. This exemption has often been called unlawful, given that American taxpayer money is the sole source of revenue for these corporations. In the case of Grisham v. Hagen (1960), Article 2(11) of the Uniform Code of Military Justice (UCMJ) was cited to reverse the original charge of the defendant accused of having committed a capital offence in a foreign country. Article 2 states that, “persons serving with, employed by, or accompanying the armed forces outside the United States,” are subject to treaties and agreements the United States is a party to. However, this was not relevant because it could not “constitutionally be applied in peacetime to the trial of a civilian employee of the armed forces serving with the armed forces in a foreign country and charged with having committed a capital offense there.” 

Although new legislation amends the UCMJ to bring military contractors “serving with or accompanying an armed force in the field” under the jurisdiction of military courts, not only during a time of declared war but also during “contingency operations,” the military has not yet implemented this legislation, nor have courts ruled on its constitutionality. Historically, private contractors have not been subject to criminal law under the U.S. military justice system because the Supreme Court has held that military criminal trials of U.S. civilians in the absence of a declaration of war are unconstitutional. While many have argued that federal criminal prosecution under the Military Extraterritorial Jurisdiction Act (MEJA) keeps contractors accountable for their actions, its scope is grossly limited, because it only includes employees of the Department of Defense. Employees of the Central Intelligence Agency and the State Department, including large companies like Blackwater, are always exempted from this statute. However, Congress is actively considering the extension of the mandate of the MEJA to include CIA and State Department affiliates and employees to effectively counteract the exploitation of this loophole. 

The plausible deniability of actions of the PSCs also allows for human rights violations to go unchecked in the host country. One important example is the unsanctioned use of torture in black sites such as Abu Ghraib. Three critical lawsuits filed against U.S. corporations, Engility Corporation (formerly L-3 Services and Titan Corporation) and CACI International, Inc., by non-governmental organizations as amicus curiae on behalf of Iraqi torture victims after the absence of an investigation by the Department of Justice reveals a deep-seated problem in the American cycle of contemporary warfare. The most common reason cited by district court officials for dismissing overseas instances of torture is, “because the acts giving rise to their tort claims occurred exclusively in Iraq, a foreign sovereign.” This had occurred in the ruling of Al Shimari v. CACI International, wherein the plaintiff accused CACI of torture, including the use of electric shock, sexual assault and rape, sensory deprivation, broken bones, and food and oxygen starvation. Although Congress has pushed to provide access to U.S. courts to rule on torture committed by American nationals overseas, the question of what happens when American contractors fighting American wars overseas employ foreign personnel still remains. U.S. Code §1350, which discusses an alien’s action for tort (ATS) states, “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Thus, one could reasonably conclude that the legislation, with minor amendments, encompass the contravention committed by the PMC in question. However, the addition of the word ‘civil’ makes this argument entirely void, because the aliens in question are affiliated with military personnel and no longer participate in civil action. This complete lack of accountability encourages the expansion of the private military empire overseas. An interesting case to examine is Kiobel v. Royal Dutch Petroleum in the U.S. District Court that Nigerian nationals were killed or unlawfully detained by The Shell Petroleum Company of Nigeria and that they should be held liable. The case was dismissed, because the law of nations does not extend civil liability to corporations. This case also led the Supreme Court to hold the presumption that ATS did not apply outside the United States. 

One of the biggest problems of the industry was revealed in a 2010 House of Representatives report on extortion and corruption along the U.S. supply chain in Afghanistan. Subcontractors of PMCs in regions with unnavigable terrain include warlords and insurgent groups, thereby empowering them with money and legitimacy. Given that one of the primary reasons for the United States’ protracted occupation in Afghanistan was to create a stable government and remove the substantial influence of the same aforementioned non-state actors, it appears counterproductive to be indirectly capacitating these subcontractors. Indeed, this report found that protection payments for safe-passage are a significant source of funding for the Taliban. Many security providers engage in regular bribery to local officials in order to obtain permission to pass through their region, a fact that U.S. officials have confirmed their knowledge of. It has also been found that in Syria, militias armed by the Pentagon fight private contractors employed by the CIA, calling to attention the uncoordinated and ineffective nature of American intervention. Additionally, reports from Afghan officials have found that another private military company has been paying the Taliban to attack NATO forces in order to keep the war going, thereby breeding mercenary markets in the host state. This has multiple ripple effects on the host country, including the lack of nation building, one of the most frequently cited reasons for the US invasion of Afghanistan. An increased focus on military operations shifts the attention away from strengthening legitimate government forces. Finally, the prevalence of PMCs reduces the barriers of entry to conflict, because Congress is no longer involved in the lengthy process of oversight on the nature, length, and degree of involvement overseas, therefore encouraging defense and intelligence officials to seek more opportunities to wage war.  Perhaps one of the most worrisome long-term effects of the use of private military is the increasing dependence that the government has on these corporations. With billions of taxpayer dollars being spent on expensive services that leave the United States with several unresolved cases surrounding the violations of human rights overseas, the question of ethicality comes to light. Going forward, important questions like what the relationship between the White House and the private military sector should look like need to be addressed. Will creating stricter legislation on accountability reduce the government’s dependence on PMCs, thereby making costly international intervention an unfavorable option in general? Policymakers are often handed three options to conduct wars: surrendering to a hostile state, conscription, or outsourcing force. Making the use of PMCs a legal quagmire by strengthening existing legislation, like U.S. Code § 2441, can be the long-term solution to take America out of future wars. Such amendments from within the country could possibly allow us a future where years of protracted conflict stemming from international military intervention becomes nearly obsolete.