The Ethics of Paying Civilians to Enter Harm's Way
Requiring Soldiers to Depend upon Them
A paper prepared for presentation to the
Joint Services Conference on Professional Ethics 2000
January 27-28, 2000
Gordon L. Campbell
United States Army Combined Arms Support Command
(The views presented herein are entirely those of the author, and do not represent the official position of the United States Army Combined Arms Support Command, the United States Army, or the Department of Defense.)
CONTRACTORS ON THE BATTLEFIELD:
The Ethics of Paying Civilians to Enter Harm's Way
Requiring Soldiers to Depend Upon Them
The United States Military has always used contractors in times of war. Washington used civilian wagon drivers to haul supplies. Sutlers were famous, or infamous, for their support of Union Troops during the Civil War. By WW II, civilian workers, hired either individually or through firms, provided support services in all the theaters of war. In the Korean War, contractors provided services ranging from stevedoring, road and rail maintenance to transportation. By Vietnam, contractors were becoming a major part of logistical capabilities within zones of operation providing construction, base operations, water and ground transportation, petroleum supply and maintenance/technical support for high-technology systems. During the Gulf War, the GAO estimates, in addition to 5,000 U.S. government civilians, there were 9,200 contractor employees deployed in support of U. S. Forces providing maintenance for high-tech equipment in addition to water, food, construction and other services. (1) The growth of contingency operations has seen an exponential growth in required contractor support: at one point in Bosnia, our Army uniform presence was 6,000--supported by 5,900 civilian contractors.
Increased use of civilian contractors should not be surprising. Today, U.S. Forces and budgets are down 40% relative to where they were in 1989. (2) For the Army, that's 111 combat brigades reduced to 63. Yet, since that time, the U.S. Army has deployed troops on 36 occasions compared to 10 deployments during the 40 year Cold War. (3) The Guard and Reserve have experienced the same draw downs: 1.8 million soldiers in 1989 reduced to 876,000 today--all the while performing 13 times the man-days of service a year they contributed prior to the Soviet Union's demise. (4)
The use of contractors to support military operations is no longer a "nice to have." Their support is no longer an adjunct, ad hoc add-on to supplement a capability. Contractor support is an essential, vital part of our force projection capability--and increasing in its importance. This has been recognized by the Army, which has been exerting considerable effort to delineate the issues such a symbiotic relationship entails and to incorporate this recognition into Policy, Regulation and Doctrine. (5) Laws may also have to be changed. Army doctrinal efforts have tackled issues as:
What is the legal status of a contractor on the battlefield? (6)
Can a contractor be armed? (7)
Where on the battlefield can a contractor be sent? (8)
What can/cannot a contractor do on the battlefield? (9)
Should contractor personnel wear military uniforms? (10)
While these issues are of vital importance, the more fundamental issue raised in the title of this paper has yet to be addressed. This issue is, of course, bigger than any one Service: it is a political issue enmeshed in economic and social considerations. The notion, much less the requirement, of placing contractors on the battlefield is the cumulative effect of reduced government spending, force reductions/government downsizing, privatization of duties historically performed by the military, low retention rates--particularly in high technology positions, reliance upon increasingly complex technology, higher mission requirements, low military salaries, and recruitment shortfalls all within a booming economy and budgetary surplus projections.
Types of Contractors
Army Doctrine has categorized contractors supporting military battlefield operations as:
Systems Contractors: provide life-cycle support for weapon and other systems fielded by Program Executive Office (PEO)/Program Manager (PM) or Army Material Command managed systems. This support includes specified maintenance and support of equipment deployed with Army forces.
External Support Contractors: work under contracts awarded by contracting officers serving under the command and procurement authority of supporting headquarters outside the theater. Their support augments the commander's organic combat service support capability.
Theater Support Contractors: contractors, usually from the local vendor base, providing goods, services, and minor construction to meet the immediate needs of operational commanders.
Significant benefits may be derived through utilization of contractor capabilities. However, these projected benefits may also have commensurate risks and costs. Possible benefits include:
-Enhanced deployment capability: contract support available within a theater does not have to be deployed to the theater.
-Soldier OPTEMPO offset.
-Maintenance of high-tech, low density skills: the Army can no longer afford to train and maintain career progression for these skills. Contracting them out eliminates the requirement to do so.
-Increasing combat power in force constrained circumstances: when a host nation limits uniformed strength, contractors can perform Combat Service Support (CSS) services and permit soldiers to focus on combat operations.
-Providing capabilities the Army does not have.
The risks and costs include:
-Risks to the contractor personnel and to mission accomplishment.
-Loss of tactical flexibility.
Given an asymmetric threat on a nonlinear battlefield, there is no “safe” zone within the area of operation. Army doctrine does not establish a “Forward line of Contractors”. Contractor personnel will be positioned anywhere in the theater by the commander--METT-TC dependent and in accordance with the terms and conditions of their contract. Regardless of where they are located, contractors must understand their personnel may be at risk wherever they are on the battlefield.
While the previous paragraph may clearly seem to be an intuitive grasp of the obvious to those in the military, I suggest the meaning is not truly understood by most civilians. Furthermore, the meaning, that is, the implications and horrific realm of possibilities it implies, is not only not understood--it cannot be understood by most civilians.
The United States Army takes justifiable pride in the training, education and discipline of its uniformed personnel. They are trained and conditioned, both mentally and physically, to survive in the battlefield environment and be victorious in combat. Whether their job at hand is a cook, truck driver, mechanic or technician, they are soldiers first. They are trained and conditioned to accomplish their tasks in a combat environment. While civilian contract employees may very well have superior expertise to do a job, how can they have the knowledge of the environment in which they may have to do it? Even if the contract employees are former military, the currency of their conditioning, both mental and physical, must be taken into account.
Reliance & Trust
Soldiers providing combat service support are trained and conditioned to accomplish their tasks in a combat environment. They know the stakes. They know their fellow soldiers in combat are counting on them. While, perhaps more importantly, those in combat conduct their operations with full confidence they will receive the support they need. Reliance and trust is built upon military discipline and professionalism. If this is lost, or even put into doubt, a military mission may be put into peril. Will combat soldiers have the same level of confidence in civilian contractors providing support as they do soldiers? Why should they?
The Army's proposed method to engender such reliance and trust is built upon the credo: Train as you fight and fight as you train. For Systems Contractors, the concept is to establish a "habitual relationship" between their personnel and the personnel of the unit they support. Systems Contractor Employees who perform their day to day jobs within a military unit can and must establish personal relationships with the personnel in the unit they support, in effect, becoming an integral part of the unit. They will work with the unit, train with the unit, deploy with the unit and go to war with the unit. The idea is that people who work and train together every day will work together on the battlefield. While a sound beginning, this concept still leaves many unanswered questions concerning physical conditioning, fitness requirements and training contractor personnel to work in hostile environments, e.g. work in NBC (Nuclear, Biological, Chemical) protective gear. A contractor who is killed or otherwise incapacitated due to physical limitations or ineptitude (e.g. inability to don protective gear or walking into a minefield) could put a mission at risk and get soldiers killed. The establishment of a habitual relationship should aid in the identification and resolution of such problems and thus build confidence. However, failure to resolve identified problems will undermine the very trust which habitual relationships seek to achieve.
Another Burden of Command
The "ideal battlefield" would not contain any civilians. The presence of noncombatants as well as "civilians authorized to accompany the force" (i.e., in this case, contractors) in the area of operations greatly complicates the life of a commander. This complexity is compounded when the Commander is dependent upon them to accomplish his mission. Force protection is a critical issue, even in "permissive" environments such as in the case of humanitarian operations. It must be always be borne in mind that while the complete spectrum of deployed operations is divided into the bands of humanitarian assistance, peace keeping, peace enforcement, minor conflict and major theater war, the bands are not mutually exclusive. The spectrum can shift during the operation. "Harm's way" is an ever present possibility. The commander must protect his contractors--they can do little to protect themselves.
Soldiers which provide support can protect themselves and their operations. To the best of my knowledge, all Army Military Occupation Specialties (with the sole exception of Chaplains) contain the requirement to fight as infantry when required. The most a contractor can do is protect himself, personally, with a personal side arm (generally a military issue 9 millimeter pistol with standard military issue rounds). He cannot protect "his buddies", his operation, equipment (which could be highly classified), or position. If he does so, he risks being identified as an illegal belligerent--forfeiting the "rights and privileges" of POW (prisoner of war) status, if captured . A commander must therefore conduct his operations while withholding sufficient combat capability to protect his contractors and their operations. They are critical to his mission. After all, if they were not critical to his mission, they would not be there. Add to this, if the contractor employee does feel unsafe, or for any reason feels he isn't being "paid enough for this" and quits, there is little the commander can do. Yes, the contractor (the actual corporation) still has a requirement to perform and must replace the individual, but a lot can happen in the interim. It would be little comfort to a commander to know his contractor is in violation of his contract as his mission goes down the tubes--particularly if people are getting killed. Thus, reliance and trust flows both ways: soldiers need to know the support will be there when they need it and contractors need to know they will be protected. Again, contractors and their employees must be trained to understand what they may be getting themselves into. Additionally, soldiers need to be trained as to the nature of contractual relationships and the limits of what a contractor can do.
METT-TC, for the commander, is a moral calculus. He knows he should not put civilians at unnecessary risk, but what is unnecessary? He has a mission to accomplish. If a commander has no organic support (military provided) capability and is therefore totally reliant upon contractors, his range of options may be reduced to one of purposely placing civilians at risk or not accomplishing mission.
Command & Control vs. Management
The commander has no "Command & Control" authority over contractor personnel. While the contract can require contractor personnel to abide by all guidance and obey all instructions and general orders applicable to U.S. Armed Forces and Department of Defense Civilians, they cannot be "commanded". Their relationship with the government is governed by the Terms and Conditions of their contract. Only the Contracting Officer has the authority to direct the Contractor (not contractor employees--that would be personal services: a real "no, no" in government contract law) through the contract. In short, the Commander must "manage" contractor personnel through the contracting process. He has no authority to command or discipline them--unless it is a declared war.
When No Laws Apply
Soldiers, at all times and all locations, are subject to the Uniform Code of Military Justice (UCMJ). Only if Congress has declared war are Contractors accompanying the force in the field subject to the UCMJ and thus under direct command, control and discipline of the commander. Historically, such declarations do not come easily. Without such a declaration, contractors, like any U.S. citizen, are subject only to the laws of the nations in which they are in--not U.S. law.
This lack of application of U.S. criminal law outside of our special maritime and territorial jurisdiction, when combined with the reluctance of some host countries to prosecute Americans for these offenses (particularly if they were committed against fellow Americans--soldier or civilian), creates an environment where civilians are untouchable despite commission of what would be serious crimes within the U.S. While, if there is a host nation, political pressure can be brought to bear for them to prosecute, the same is not true if there is no host nation. If a contractor commits an offense while supporting a military operation in a country hostile to the U.S., it is inconceivable he would be turned over to the enemy to be prosecuted. Additionally, as in the case of Somalia, what if there is no government? A contractor, there to support the U.S. national interest, could murder, rape, pillage and plunder with complete, legal unaccountability.
The Senate has made an effort to close this criminal jurisdiction gap by passage of Senate Bill S. 768: The Military and Extraterritorial Jurisdiction Act of 1999. The purpose of the bill is two fold:
1. It extends the jurisdiction of the UCMJ during a declared contingency to DoD civilians and contractor employees (while supporting said contingency).
2. It extends Federal Criminal Legal jurisdiction over said individuals (plus former members of the Armed Services) while they are overseas accompanying the Armed Forces.
The Extraterritorial Jurisdiction aspect of the Bill fills the jurisdictional gap identified discussed above. If contractors' supporting our troops during a declared contingency engage in conduct that "would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States", then they "shall be guilty of a like offense and subject to a like punishment". (11) If there is Extraterritorial Jurisdiction, then extension of UCMJ jurisdiction does not appear necessary--at least for the reasons cited in the Congressional Record.
The problems cited in the Congressional Record discussion that UCMJ authority would deal with are, and I quote "serious crimes" ("sexual molestation of dependent girls, the stabbing of a serviceman and drug trafficking to soldiers"). The Bill seeks to close "the gap that allows individuals accompanying our military personnel overseas to go unpunished for heinous crimes". "Serious" and "Heinous" crimes will be covered by the extension of federal jurisdiction--UCMJ extension is unnecessary. Even the single sentence citing "insignificant misconduct" appears significant enough to merit the application of the federal jurisdiction extension in accordance with the Federal Sentencing Guidelines: "transportation of illegal firearms", "larceny", "receiving stolen property". So, UCMJ extension to civilians appears unnecessary to deter/punish criminal conduct if federal criminal jurisdiction is extended. What UCMJ extension offers beyond federal criminal jurisdiction extension is the authority for the military to discipline civilians. This has, at least, two potential problems.
Government Contract Law vs. UCMJ
One potential problem is the creation of conflict between the UCMJ and Government Contract Law. Under Contract Law, contract employees are not soldiers or government employees. Their relationship with the government is governed by the Terms and Conditions of the contract. Only the Contracting Officer has the authority to direct the Contractor (not contractor employees--that would be personal services) through the contract. The Terms and Conditions of any contract can be constructed so as to include provisions requiring contractor personnel to abide by all guidance and obey all instructions and general orders applicable to U.S. Armed Forces and Department of Defense Civilians to include those issued by the Theater Commander. The Contractor can be required to "take reasonable steps" to ensure his personnel comply and to ensure "the good conduct" of his employees. Furthermore, the contractor can be required to promptly resolve, to the satisfaction of the Contracting Officer, all contractor employee performance and conduct problems identified by the Contracting Officer and/or representative. Add to this a provision allowing the Contracting Officer to direct the Contractor, at the Contractor's expense (i.e. a non-allowable charge to the contract) to remove and replace any contractor employee failing to comply to the above, and you have a significant tool to aid in achieving good order and discipline within an area of operations.
Now, add UCMJ authority. Does this mean officers and senior enlisted may feel "empowered" to direct contractor personnel to do their bidding? Will contractor employees, fearing an "Article 15" or "Courts Martial" if they do not, "hop to" ("yes sir, yes sir, three bags full") and work beyond the requirements of their contract--and send us the bill? Will we, therefore, see an explosion of Constructive Changes (changes ordered by people other than the Contracting Officer with "apparent"--now UCMJ, authority) and Contract Ratification's? Will the Government lose cases in Disputes? I believe any reasonable person with even the slightest experience in these matters will resoundly answer YES. The extension of UCMJ authority will have a negative impact in Contract Administration. If military discipline/command and control is required, then troops should be doing the work.
The second, and major, problem is one of constitutionality. The placement of civilians under military rule is an anathema to our democratic society. Congress has not demonstrated a compelling need to do so and passage of any such law will be determined unconstitutional. Here is one, brief line of reasoning supporting this position.
UCMJ authority extends to civilians accompanying the force in the field in times of DECLARED WAR. This makes sense. There is a compelling need for good order and discipline and absolute unity of command. War is an inherently governmental function. A DECLARED WAR mobilizes the nation to extinguish a severe threat to our national interest, perhaps our way of life or very existence. Under these circumstances civil authority, for civilians accompanying the Armed Forces in the field, is suspended. Contemporary Constitutional Law (within this century) indicates such an egregious suspension of the supremacy of civilian constitutional authority will only be allowed by the Supreme Court by a specific, limited act of Congress based upon compelling need--the Declaration of War.
Senate Bill 768 takes Congress out of the loop. First, no specific compelling need is required to be identified by legislation--only a general category, "contingency operation" is created. Second, authority to declare a "contingency operation" and thus suspend civil law, is given to a NON-ELECTED official--the Secretary of Defense. The constitutionality of a non-elected official given blanket authority to suspend civil liberties is highly suspect.
Now, this line of reasoning can lead to some interesting conclusions.
If, in the National Interest:
the Congress and the President feel UCMJ extension to civilians is required during contingency operations (for unity of command, good order and discipline, etc.) because Peace-Keeping (for example), like War, is an inherently governmental function...
Then our political leadership is admitting the military, by itself, can no longer defend the National Interest: Civil liberties must be suspended and contractors "pressed" into service.
It may then be argued this is tantamount to an admission by the Political Leadership that it has reduced the military to a point which requires the creation of a true, contracted "Shadow Military" of combat service support and combat support that must be under Command Authority to be effective. It is a Shadow Military which, at best--and for a fee, may support, but cannot fight.
It would be a strange turn of events if it comes to the point of the Supreme Court declaring UCMJ extension to civilians during "declared contingency operations" unconstitutional. A Supreme Court ruling that Congress's failure to properly size and fund the nation's military to conduct contingency operations does not create compelling need to suspend civil liberties would be landmark indeed.
There is no doubt contractors can accomplish specific, non-combat tasks traditionally accomplished by the military. The level of support our troops are receiving in Bosnia, and their high level of satisfaction, is an excellent example. Bosnia, however, is not a combat environment. Whether or not actual, sustained combat operations can be successfully supported by civilian contractors is unknown. I hope we never have to find out. Hope, however, is not a method.
Ethics demands contractors and their employees understand what they are signing up to do. It demands they are trained to survive and accomplish their tasks in hostile environments so as not to put our troops, the mission, and themselves at unnecessary risk. Ethics requires us to examine the worst case scenario of fiscally driven policies. It requires we focus on the unpalatable issues the title "Contractors on the Battlefield" implies. Ethics would also seem to demand the military retain core levels of all capabilities necessary to enable it to fulfill the strategic and contingency plans prepared by the Chairman of the Joint Chiefs of Staff (in accordance with Section 153(a) of title 10, United States Code). This capability would be utilized for situations where military force is required but would not create the ethical dilemma of placing civilians in harm's way vs. accomplishing mission.
All of these requirements, however, would greatly reduce the alleged dollar savings now being attributed to contracting out support services. It is a matter of balancing costs and risks. As previously stated, it is a political issue enmeshed in economic and social considerations. Proper balancing requires issue identification and clarification--not obfuscation. Those that weigh only dollar costs will undoubtedly not be the same as those who face the risks--and directly suffer the costs. Defense is expensive. Ethical Defense Policies, in keeping with our democratic principles, is even more so.
1. Shrader, Dr. Charles R. "Contractors on the Battlefield". Landpower Essay Series, No. 99-6, May 1999. Association of the United States Army.
2. Strawbridge, Patrick. "Military's Risks Rising, Joint Chiefs Chairman Tells Veterans". Omaha World Herald August 5, 1999.
3. Seigle, Greg. "Peacekeeping Undermines US Combat Readiness". Janes's Defense Weekly July 28, 1999.
4. Scarborough, Rowan. "Full-Time Warriors". American Legion Magazine August 1999.
5. Numerous Army Agencies are working to develop required policy and doctrine. The primary documents include:
AR 715-9 Army Contractors on the Battlefield (Approved and awaiting publication. It must be noted that since its staffing, it appears the title may be changed to "Contractors Accompanying the Force"--despite the objections of the Logistics Community (for whom the contracted support will augment) and the Acquisition Community (those responsible for obtaining the support).
FM 100-21 Contractors on the Battlefield (Final staffing completed)
FM 100-10-2 Contracting Support on the Battlefield (Published)
FM 63-11 Logistics Support Element (Published and under revision)
DA Pam 716-16 Civilian Deployment Guide (Published)
6. A contractor is neither a combatant nor non-combatant. They are civilians authorized to accompany the force in the field--and must have identification to that effect. As such, they are different from the general civilian population. If captured, they are entitled to Prisoner of War (POW) status.
7. A contractor authorized to accompany the force in the field is not entitled to be issued a firearm. However, a contract employee may be armed only if the all of the following conditions are met:
1. The Theater Commander must grant his approval.
2. The employee's corporate policy must allow it.
3. The employee agrees.
If all three conditions are met, then the employee must pass proper military side arm training and will be issued a MILSPEC weapon and ammunition (generally a 9 millimeter pistol) for personal protection.
8. Contractor personnel may be positioned anywhere in the theater by the commander--METT-TC dependent (Mission, Enemy, Terrain, Troops, Time Available and Civilian Considerations) and in accordance with the terms and conditions of their contract.
9. A contract employee cannot engage in any activity inconsistent with his civilian status e.g. contractors cannot be in direct support of hostile operations/they cannot crew a weapon system.
10. Contractors accompanying the force shall be visibly distinct from soldiers so as not to jeopardize their status...Military uniforms are unacceptable except for specific items required for safety or security such as : Chemical defense equipment, cold weather equipment or mission specific safety equipment.
11. NOTE: the Extraterritorial Jurisdiction section dealing with its application to Third Party Nationals will be, at minimum, "interesting" in its application, much less its explanation to Theater Support Contractors (local vendors from "across" the border). This will probably require a new mandatory Department of Defense Federal Acquisition Regulation Supplement Provision if for no other purpose than to notify potential/actual contractors. Additionally, the application will probably go further than stated in the Bill's discussion. If there is no "Host Nation" (because there is no government or it is hostile to us), then U.S. Law will apply to all Theater Support Contractors as well as those for External Support and Weapon Systems. Overall, the willingness to accept U.S. criminal jurisdiction in order to get a contract may "cool" the Theater Support Contracting environment--particularly those that do not speak English.