Guerrillas, Terrorists, Contractors, and Voters A Case for a Sliding Scale of Partial Civilian Immunity?

 

by

 

Davida Kellogg

 

Department of Military Science

University of Maine

Orono ME

 

"Moral courage is not just about doing things we never dared to do. It's also about saving the things we love. Without it, we risk what matters most." Rushworth Kidder[1]

 

Abstract

 

Although persons other than legal combatants have always participated to some extent in the wars of America, the nature of modern warfare raises the vexed question of whether the binary nature of the combatant/noncombatant distinction (one is either a noncombatant with full immunity from intentional attack or a combatant with none) in international law of war has been rendered untenable by the increasing participation of nominal civilians as unofficial and ununiformed soldier surrogates in modern guerrilla and terror warfare, or as civilian contract logistics support or technicians and operators of information and weapons systems on the battlefield.

 

The problem is that any tactical advantage to be gained by radically revising the principle of civilian immunity, or excising it from international law of armed conflict altogether, would necessarily come at a morally prohibitive cost that of the natural

human rights protected by the legal and moral force of law of war provisions that proceed from this principle. Because of the cardinal position of protection of innocents as the, and not simply a, foundational principle of just war theory, and of the international law of war derived from it, doing away with civilian immunity would render that entire body of law moot. Even those provisions for the humane treatment of wounded or captured combatants that would remain would have no force, as they are predicated on a return of those rendered hors de combat to a protected noncombatant status that would no longer exist.

 

Trimming blanket civilian immunity to only partially cover civilians to the extent that they are engaged in certain categories of combat-related activities would seem to be a just and reasonable solution to the problems presented by the active participation of nominal civilians in warfare. But such measures would have the potential to introduce as many tactical disadvantages as they are intended to overcome, while further undermining the single most perhaps the only effective instrument of power that civilized societies have at their disposal for the mitigation of at least the worst of the horrors of war.

 

Therefore, echoing the sentiment of ethicist Rushworth Kidder quoted above, I shall conclude that, rather than rushing to discard civilian immunity as an antiquated relic of chivalry that has become a hindrance to mission accomplishment and force protection, we ought to exercise the moral courage to save this instrument for the protection of those who matter most to us, as well as those who ought to matter to our enemies.

 

The Trend Towards Increasing Participation of Persons Other Than Legal Combatants in the Wars of America

Modern just war tradition, and the body of international law of war derived from it, are predicated on an unequivocal dichotomy between a nation's legal combatants and its own and enemy civilian noncombatants traceable to ancient Roman jus gentium, under which anyone engaging in state-sponsored warfare without being formally sworn into military service for a particular campaign was liable to prosecution for murder.[2] Running alongside of just war tradition, to which we as a nation subscribe, is an equally long and largely unacknowledged and unexamined counter-tradition of civilians accompanying their armies in the field in the capacity of cooks, suttlers, laundresses, camp followers, "enlisted mens' wives and officers' ladies," etc. And, though the details of stories such as that of Continental Army artillerists' wife-turned-cannoneer, "Molly Pitcher," may be apocryphal to at least some extent, the existence of this and other similar legends attests to civilians having, on occasion, taken a more active part in the fighting in the wars of America as far back as our War for Independence. As the American Revolution ground on, the British Crown, for its part, made increasing use of Hessian mercenaries to fill out attriting Redcoat ranks in America. And the employment of these German soldiers-for-hire, whose motivating interest in that intensely ideological conflict over nationalism was purely economic, was taken by the Americans as a particularly offensive cause for grievance.[3] But, though they were not British in nationality or interest, these foreign hired guns were at least distinctively uniformed, officially in the service of a recognized government, and subject to its code of military discipline.

 

Post-18th century World military history has seen a rising trend in resort to civilian participation in increasingly combat-related capacities that now threatens to stretch the broad blanket of immunity that international law of armed conflict throws over civilians as presumptive noncombatants to the breaking point. During the American Civil War, civilian nurses, newspaper reporters, and photographers were becoming familiar figures on the battlefield. By WWI, questions raised as to the noncombatant status of civilian workers in munitions factories and the treatment due civilian passengers on merchant vessels presumed to be transporting war materiel were leading cynics like Peter Strasser, a German commander of zeppelins that bombed military, industrial, and civilian targets, to declare that "nowadays, there's no such animal as a noncombatant." In the Vietnam Conflict, nominal civilians had become an integral part of enemy strategy and tactics to such an extent that Gen. William Westmoreland could be accused on national network television of attempting to deceive the government about the strength of enemy forces after he made his command decision not to count Communist self-defense and secret self-defense units in MACV Order of Battle estimates, effectively removing them from the ranks of combatants it would be permissible for American troops to attack, in keeping with the letter of international law of war.[4] In the wake of the Vietnam Conflict, the growing participation of nominal "civilians" in the prosecution of modern warfare, both as guerrillas or terrorists and as contractors hired to support troops or maintain and operate sophisticated computer-based weapons and information systems in the field, now threatens to elevate Strasser's self-justifying overstatement to near-truth, and raises the question of whether the jus in bello requirement to discriminate between combatants and noncombatants even remains a realistic possibility under the conditions of modern guerrilla, terror, and technological warfare. This deliberate breaching of the moral and legal firewall between those kinds of participation in warfare allowable for civilian noncombatants and those proper only to legal combatants has set up a tension between military necessity and human rights that now threatens to tear the just war heart out of law of armed conflict.

 

Threats to Civilian Immunity Presented by Forms of Modern Warfare That Employ Persons Other Than Legal Combatants

 

Today, the threat to civilian immunity comes from two apparently diametrically opposed directions guerrilla and the related terror warfare, and, ironically, the high tech warfare to which industrialized nations have turned in order to counter these forms of low tech, so-called "people's" war.

 

Terrorism and Guerrilla Warfare

 

Like guerrilla warfare, terrorism is predicated on the sacrifice of innocents at so fundamental a level that it cannot even be waged if civilian lives are to be taken into consideration. Guerrillas force military significance on their own civilians by casting doubt on their non-combatant status. The innocent non-combatants whose civilian immunity is defeased as a result of the employment of guerrilla tactics are, for the most part, members of the guerrillas' own civilian populations. The sacrifice that guerrillas make is, therefore, at least nominally theirs to make, though those civilians on whom they thrust unwanted military significance might object, were they given a voice in the matter.[5] Terrorists, too, use nominal civilians as pawns to achieve their purposes, recruiting teenagers,[6] children, and now, young women[7] as suicide bombers. But the defining feature of terror warfare is its morally repugnant and manifestly illegal strategy of deliberately targeting civilian populations of nations whose governments' policies do not forward the terrorists' political and ideological agendas,[8] the effectiveness of which has just been demonstrated by the direct influence on the outcome of Spanish national elections of al Quad terror attacks that killed over 200 civilian rail passengers in Madrid on March 11 of this year.[9]

 

Doctrinally and operationally, there can be no separating terror war from the unjust sacrifice of innocent noncombatants, and, because of that, there can be no defending it on the grounds of religious ideology, much less political, economic, or social ambitions. However much such goods as national self-determination, ethnic identity, and religious not to mention social, political, or economic advantage may be desired, they are all of secondary or lower importance to the natural human right of innocent noncombatants to their own lives. The bottom line is that, as Michael Ignatieff[10] maintains, there is no right, either natural or legal, to murder innocent noncombatants in the name of being a nation. Neither, I maintain, does any such right exist for the express purpose of advancing any religion, or sect thereof.[11]

 

My position is in accordance with just war doctrine and international law of war, both of which have their bases in the strong moral prohibition against the deliberate murder of innocents, which in turn is grounded in the teachings of all the World's great religions. So strong is this prohibition that Hugo Grotius, father of international law, insisted that civilian immunity is one of those natural laws that are binding on all people at all times, and that "cannot be changed even by God."[12] The challenge for terrorists is to justify their violation of innocent human beings' inalienable natural right to their own lives for the sake of their social, political or religious war aims, or forfeit the popular support of other peoples upon which their political success ultimately depends. And this they cannot morally or logically do.

 

Since the prohibition is against the deliberate taking of innocent human life, it may be gotten around only if one or more of three extenuating conditions can be shown to apply:

 

1. that the killing was not deliberate,

 

2. that those killed were in fact not innocent by virtue of their political convictions or religion,

 

and/or

 

3. that those killed could be considered something less than fully human.

 

The only morally valid case among these three would be the first. Even the most conscientiously prosecuted military operations may have the unintended double effect of harming innocents despite all efforts to spare them. The doctrine of double effect acknowledges the victims' humanity and innocence, but realistically though regretfully recognizes the fact that soldiers are not omniscient gods but fallible men, who may make mistaken split-second life-and-death judgments despite the most honorable of intentions. The unintended deaths of innocents under those conditions are a tragedy for the killer as well as for those killed,[13] but they do not constitute crimes against humanity as does the deliberate targeting of innocents for terror attacks. This critical difference made by intentionality is disingenuously elided .by apologists for terrorism, who contend that collateral damage does not differ significantly from, or even constitutes, terror attack. At the same time, terrorist leaders conveniently invoke the inferred intentions of their victims to justify their own deliberate disregard for the immunity of the more than 3,000 civilians killed in Qaeda attacks on the World Trade Towers, for instance, on the grounds that those civilians killed were not in fact innocents because they may have voted for or otherwise supported US policies that did not further terrorist political or religious war aims,[14] or because many of them were presumed to belong to religious or ethnic groups that the terrorists see as the enemy in their unilaterally proclaimed holy war of extermination against less than fully human "infidels."[15]

 

In redefining the legal category of those who are not innocent so broadly as to include entire enemy civilian noncombatant populations, however, terrorists invalidate any counter-claims that they may ever wish to make that their enemies have unjustly attacked their civilians. It is both ironic and tragic that what their morally twisted rhetoric has accomplished is to lay terrorists' own innocent civilian populations open to deliberate indiscriminate attack because they may contribute to ostensibly religious charities which funnel funds to terrorist organizations, or send their children to madrasas for educations that amount to little more than indoctrination into terrorist organizations whose only interest in them is to exploit them as human ordnance.[16]

 

Contractor Warfare

 

If the deliberate and calculated use of a people's own civilians as cheap, low-tech weapons against another people's civilian population or troops is the hallmark of terror and guerrilla warfare, the employment of high-priced private civilian contractors to support combat troops in the field, or to maintain or operate high-tech weapons and information systems on the battlefield, has increasingly come to characterize the state-of-the-art technological response adopted by the US to counter these operationally and morally "asymmetrical" forms of warfare .

 

Unlike guerrilla and terror warfare, what I will call contractor warfare is not predicated on a strategy of deliberately blurring of the jus in bello distinction between combatants and noncombatants in order to gain tactical and strategic political advantage. Rather, our increasing reliance on civilian contract workers until "by some accounts, half of all defense-related jobs are now done by private contract workers,"[17] seems motivated by different considerations, harking back to the reluctance of America's founding fathers to raise and maintain a standing army on the grounds that it would be a certain drain on the national economy and a potential threat to individual civil liberties. The first of these considerations is the pressure on civilian leaders "from the people of this country to build a smaller, more efficient military."[18] Recent accusations that Halliburton subsidiary Kellogg, Brown, and .Root had substantially overcharged the government for supplying MREs to troops in the field and fuel to Iraq, however, have cast doubt on the cost-effectiveness of the military's contracting with this and, by extension, other civilian companies. These companies have been portrayed in the media as near-monopolies[19] with the power to negotiate "cost-plus" contracts, which Surowiecki inaccurately described as calculating profits on the basis of the contractor's costs plus a percentage of those costs, effectively "giv[ing] them an incentive to keep those costs high."[20] The second consideration is a concern for force protection, based in the high value Americans traditionally place on individual lives, including those of our sons and daughters in uniform, that, in the wake of the Vietnam Conflict, has morphed into a potentially paralyzing aversion to risking soldier lives. According to retired Air Force Colonel Sam Gardiner,[21] "the success of private corporations in the field has had [the] unforeseen consequence at the Pentagon ... [of making] 'it too easy to go to war.' There are some 135,000 troops in Iraq, but Gardiner estimated that there would be as many as 300,000 if not for private contractors, [and invited his interviewer to consider] 'how much harder it would have been to get Congress, or the American public, to support those numbers.'" The CEO of at least one contracting company[22] has actually touted the advantages of putting contract personnel like those provided by his firm in the field instead of military personnel, precisely because "casualties among [private military companies] do not have the same emotive impact as those from national forces," despite their civilian status.

Despite the significant differences between terror/guerrilla warfare and contractor war, the use of civilian contractors in combat or combat support capacities also blurs the distinction between combatant and noncombatant, posing challenges of its own to the principle of civilian immunity and the rule of law of armed conflict. The employment of civilian construction workers or cooks, for example, in the capacity of SeaBees or Subsistence Specialists for troops on the battlefield strains the legal position of civilians accompanying armies in the approved capacities of "civilian members of military aircraft crews, supply contractors' personnel, technical representatives of government contractors, war correspondents and members of labor units or civilian services responsible for the welfare of the armed forces"[23] as protected persons under the Geneva Conventions. So does the implied integration of civil servants and civilian contractors into the military by their inclusion in publications like the 1997 edition of Air Force Core Values[24] as Air Force personnel, though, as Steven Zamparelli notes, their association with the Air Force is dependent only upon the fulfillment of a civil business contract, and not the honoring of a solemn and binding oath taken before God and the nation.

 

Certainly, the resemblance of at least some contractors who are integrally involved in maintaining or serving increasingly high-tech weapons or information systems on the battlefield comes uncomfortably close to "the ordinary language definition" given by Thomas Adams for mercenaries as "individuals or organizations who sell their military skills outside their country of origin and[/or] as an entrepreneur rather than as a member of a recognized national military force."[25] As Adams noted, mercenaries, fairly or unfairly, have come to have an unsavory reputation so much so that, though "under customary international law, mercenaries were treated in the same manner as other combatants, and, if captured, were entitled to treatment as prisoners of war, ... the 1977 protocol to Article 47 of the Geneva Convention of 1949, sought to codify disgust for mercenaries by placing them in the category of criminals or worse." Should they ever be reclassified, and the 1989 International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries eventually be ratified, those contractors who hire out as fighters in a foreign nation's service, and those whose work with their own nation's army brings them into direct confrontation with the enemy, at least, "could find themselves in the same status as bandits, pirates, and outlaws, literally eligible to be captured or killed with impunity by anyone who has an interest in doing so. Their position would be even worse than terrorists since terrorists can and often do claim at least some shred of political sanction for their actions."[26] That is not to say that considerations such as the advancement of political or even religious ideologies are acceptable as just cause for war, much less campaigns of deliberate murder of innocents, under modern just war criteria.[27] But what Adams seems to be saying is that profit would not carry even the debatable moral weight of political conviction as a reason for the active participation of non- or extra-military personnel in combat, no matter how many billions of dollars and thousands of jobs may be at stake.[28]

 

The position of contract personnel in technical or other combat-related capacities on the battlefield vis a vis international and civil contract law also complicates the maintenance of good order and discipline for commanders in the field. In the absence of a formal declaration of war, civilian contractors, unlike troops, cannot legally be compelled either to go in harm's way, or to remain on the battlefield.[29] Civilian contract personnel can, and have, refused assignment to dangerous areas of operation, and left the field en masse after coworkers were killed.[30] And although the contracting firm may be held legally responsible for replacing civilian employees who refuse to fulfill the terms of their contracts, a commander cannot except in time of congressionally declared war legally compel civilian personnel to perform even critical "warstopper" functions, which none of his soldiers may have the technical expertise to take over until the contractor can provide a replacement.[31] Neither, until recently, could he hold civilian contract personnel subject to military law should they commit acts considered criminal under the UCMJ. This last situation has been considerably ameliorated by the passage of the Military Extraterritorial Jurisdiction Act of 2000.[32] The Act "establishes federal jurisdiction over whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than one year (i.e., a felony offense) while employed by or accompanying the Armed Forces outside the United States."[33] In so doing, it effectively closes the gap in jurisdiction that previously existed where said criminal act:

 

1. could not be prosecuted because it did not take place within the "special maritime and territorial jurisdiction of the United States" or affect "interstate or foreign commerce,"

 

and

 

2. could not be prosecuted under the UCMJ because it was committed by a civilian in a time other than one of congressionally declared war, and a Status of Forces Agreement giving the US "concurrent jurisdiction over such actions" had not been negotiated with the foreign country in which the act was committed.

 

The Military Extraterritorial Jurisdiction Act does not, however, affect US treaty obligations under international law of armed conflict. Under international law of war a commander may still be legally responsible for the safety of civilian personnel as protected persons under the Geneva Conventions (a level of safety far greater than his troops have any right to expect, and which, along with the contractors' higher salaries and freedom to walk away from combat, they may deeply resent). What is more, because membership in the category "combatant" is largely determined on the basis of the actions of persons falling into this class, commanders who employ civilian operators of information or weapons systems like the Dark Stars remotely piloted vehicle on the battlefield could conceivably be held liable for violation of international law of war regarding legal combatants.[34]

This last possibility raises the vexed question of whether the binary nature of the combatant/noncombatant distinction (one is either a noncombatant with full immunity from intentional attack or a combatant with none) in international law of war has been rendered untenable by the increasing participation of nominal civilians as unofficial and ununiformed soldier surrogates in modern guerrilla and terror warfare, or as civilian contract logistics support or technicians and operators of information and weapons systems on the battlefield.

 

To those charged with mission accomplishment, force protection, and compliance with law of war, all in the face of unabashedly noncompliant enemies, the idea of abandoning or radically revising the underlying principle of law of war that grants blanket immunity to all noncombatants, so as to take into account the reality of large-scale civilian participation in modern day asymmetrical warfare, has understandable appeal. Every class of senior Army ROTC cadets I have taught in the past twelve years, and many combat veterans of my acquaintance, have argued in its favor. Their arguments are not without tactical merit or moral rationale. Wholesale abandonment of the principle of civilian immunity, however, would be unacceptable to the wider American society they serve. And, in the context of politically sophisticated terror/guerrilla warfare that uses anti-US propaganda as a highly effective strategic weapon, it is, moreover, unwise. If we are to win our battles without losing the greater war with terrorism through a lack of domestic and international support, then we need to develop and adopt a more nuanced approach to the treatment of persons other than legal combatants our troops are increasingly likely to encounter in the prosecution of counter-terror operations, as well as peacekeeping and other MOOTW.

 

Some Recent Thinking on the Treatment of Persons Other Than Legal Combatants Engaged in Combat-Related Activities

 

How, then, are we to instruct our troops to react to these nominal civilians, when in reality their actions may place them at any point along a continuum from combatant to noncombatant, and an idealized international law of war recognizes only the two extreme end states?

 

Kaurin's Five Steps

Pauline Kaurin[35] recently proposed that our troops adopt a graded series of responses to suspected disguised or otherwise illegal combatants based on observation of their actions. The criteria for action (such as whether the prospective target is armed, and, if so, whether he has his weapon at the ready, etc.) and the graded responses to them she suggests are consonant with both the letter and the spirit of the jus in bello criteria of discrimination and proportionality. And her system has the virtue of correctly locating the status of combatant, legal or illegal, in the definitive action of bearing and employing arms, and not in some self-serving redefinition of key law of war terms of art that makes that names our civilian population "terrorists" for exercising its constitutional right to vote.

Providing our troops with some such relatively simple system for the critical assessment of the combatant status and treatment of individual potential targets could prove an effective means of denying terrorists and guerrillas the propaganda advantage of painting them as indiscriminate murderers of innocent enemy civilians in the international media that is crucial to their overarching political strategy. But it can also play into the morally asymmetrical guerrilla/terrorist strategy of attrition that deliberately thrusts innocent noncombatants in harm's way and/or disguises illegal combatants as civilians in order to cause legitimate combatants constrained by adherence to law of war to hesitate to shoot long enough to put them at a tactical disadvantage. And in an increasingly risk-averse nation, where even relatively small numbers of soldier casualties have sparked protests calling for our immediate withdrawal from Iraq, own force protection has become as strategically necessary for us as our steadfast adherence to law of war.

 

Fractional Immunity

Considering the varied nature of civilian participation in both modern low-tech and high-tech warfare, it might be argued that the most scrupulously just way to treat such nominal civilians would be on a sliding scale that would in effect confer some fractional degree of civilian immunity on each individual according to his personal degree of noncombatancy. But the operational difficulties that would be involved in determining how such fractional civilian status would be determined, rated, conferred, signaled, and honored in the field, and which authorities could be trusted with overseeing such a morally complex, politically sensitive, not to mention subjective, system would make any attempt at enacting fractional noncombatant immunity an exercise in futility. And, in the end, because there would still be tactical advantage to be gained by pretending to greater degrees of civilian immunity than they would be entitled to, terrorists and guerrilla fighters would continue to abuse the jus in bello rights of innocent noncombatants.

 

Warden's Five Rings

In a much commented upon[36] paper in the Spring 1995 issue of Airpower Journal, Col. John A. Warden III, U.S.A.F. Ret.,[37] proposed a model for the strategic application of air power so as to influence enemy leaders that has since gained considerable currency in Air Force circles. Warden's model posits 5 concentric rings or spheres of power with leadership at the center and organic essentials, infrastructure, population, and fielded forces occupying consecutively outer rings, upon which pressure may be effectively brought to bear to achieve desired war aims. Warden's vision is essentially Clausewitzian in its businesslike focus on the gaining of political and other concessions through the strategic application of force; the appropriateness of targets are for the most part left to Air Force and Pentagon lawyers. To his credit, Warden himself concentrates on the innermost rings, especially leadership, as preferred targets. Strong pragmatic arguments have been made that "with the US engaged in a global war against terrorists and the nations who harbor them, we cannot afford to overlook the possibility that a well-placed rifle shot, or properly targeted laser-guided weapon, just might preclude the need for massing our forces on the borders of a hostile rogue nation"[38] But even when the clear intention is to protect innocent civilians from deliberate attack by eliminating "the person that set [terrorists'] strategic policy, the person that incited them and was leading the way,"[39] targeted assassinations may have negative strategic results for both the state ordering the attacks and its allies, as has the recent Israeli assassination of Hamas leader, Sheik Ahmed Yassin.[40] And the appearance of civilian populations at all, much less in a more central position than fielded forces, in Warden's model of concentric rings of prospective targets, has disturbing moral implications that call for an in-depth moral assessment of this strategy.[41]

Conclusions

 

As I see it, there are three possible responses to the moral, military, and legal challenges posed to the principle of civilian immunity and the rule of law of armed conflict by increasing civilian participation in guerrilla/terror and contractor warfare.

 

The first is to abandon the jus in bello requirement to discriminate between combatants and noncombatants as an anachronistic and dangerous impediment to mission accomplishment and force protection, if not a virtual impossibility in the face of guerrilla and terror tactics. In the case of guerrilla and terror warfare, that would be tantamount to accepting combat on our enemies' terms. In doing so we would be striking a Devil's bargain, and a poor one, too some small modicum of tactical parity with a dishonorable enemy that deliberately puts innocents at increased risk in return for our soldiers' honor and the status of our innocent civilian population as protected persons under international law of war that would leave us with no moral right to retributive justice (sensu Elizabeth Anscombe),[42] no basis for appeal to other nations for their participation in a coalition of the morally outraged, and no recourse to legal remedy or defense from a charge of tu quoque.

 

A second possible response to the blurring of the combatant/noncombatant distinction by increasing the presence of guerrillas, terrorists, and all manner of civilian contractors not foreseen by the framers of the Geneva Conventions on the battlefield, is to develop a system for the classification of the moral and legal status of persons that confers fractional civilian immunity along the spectrum from noncombatant to illegal combatant according to the nature and degree of their individual participation in warfare. Such a system would have the virtue of clarifying the status of nominal civilians like guerrillas and terrorists, as well as civilian contract personnel whose maintenance or operation of information or weapons systems on the battlefield comes close to voiding their noncombatant status. But a jus in bello requirement to determine the exact status of each potential target could backfire on soldiers making split-second shoot/don't shoot decisions in the field, both by slowing their reaction time and by laying them open to war crimes accusations should they misjudge. And, in any case, neither guerrillas nor terrorists could be expected to conform to a revised law of war requirement to indicate the combatant status of their fighters clearly and appropriately any more than they already do to the current requirement.

 

The only solution I can see that can ensure the protection of our own and other nations' innocent noncombatants is neither the weakening nor fractionalization of civilian immunity, but recommitment to this foundational principle of law of war. Part of that recommitment must be a thoughtful reconsideration of our growing dependence on nominally civilian contract personnel on the modern battlefield in capacities that blur the critical distinction between combatants and noncombatants, and threaten both civilian immunity and the rule of law of war, in the absence of which the civilian populations of all nations would become fair game. Ideally, that would result in reintegrating at least those technicians who maintain and operate weapons or information systems on the battlefield back into the military services, where I would argue they belong, morally, legally, and operationally. While these technical personnel may be trained by the companies that researched and developed those systems, they should perform their essentially combat occupations as members of our nation's military. In a democratic society where many voters would rather not acknowledge the true size of what James Surowiecki called "the-blood-and-iron [national] defense burden of [our] government,"[43] that could be a hard-sell indeed. Alternatively, if we cannot reintegrate battlefield technicians into our military as regular service members, then government contracts for their services should be written with the understanding that these employees of theirs are to be considered as a sort of ready reserve that can be mobilized, or as civilian personnel who may be deputized into military service, for the duration of a conflict.



[1]. Rushworth Kidder, When Moral Courage Fails: Pete Rose and the Boys' Choir of Harlem, Institute of Global Ethics Newsletter, v. 7, n. 2, Jan. 22, 2004, .

[2]. Marcus Tullius Cicero, quoted in Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, Prentice Hall, 1994, p. 14.

 

[3] Thomas K. Adams, The New Mercenaries and the Privatization of Conflict, Parameters, v. xxix, n. 2, Summer 1999, p.p. 103-116.

 

[4]. Stephen Young, Westmoreland v. CBS: The Law of War and the Order of Battle Controversy, Vanderbilt Journal of Transnational Law, v. 21, no. 2, 1988, pp. 219-279.

 

[5]. Davida Kellogg, Guerrilla Warfare: When Taking Care of Your Troops Leads to War Crimes, JSCOPE 1997, http://www.usafa.edu/isme/JSCOPE97/ Kellogg97.htm.

 

[6]. Greg Myre, A Palestinian Asks, Who Made My Son a Suicide Bomber?, The New York Times, 1/14/04.

 

[7]. Ravi Nessman, Bombing Recruits Divide Palestinians, Bangor Daily News, 1/14/04. The case described in this report is particularly disturbing as it implies that the young wife and mother reported on was compelled, quite possibly against her will, to become a suicide bomber by means of accusations, quite possibly untrue, made by her husband's family that she was an adulteress.

 

[8]. As argued by Osama bin Laden in his Letter to America, 11/24/02.

 

[9]. David Brooks, Al Quaeda's Wish List; Edward Luttwak, Rewarding Terror in Spain; Paul Krugman, Weak on Terror, all New York Times, 3/16/04.

 

[10]. Michael Ignatieff, Human Rights as Politics and Idolatry, Princeton U. Press, Introduction by Amy Gutman, 2001, p. xv.

[11]. Davida Kellogg, The Case For International Co-Operation in The War Against Terrorism, Canadian Conference on Ethical Leadership, Royal Military Academy, Kingston Ontario, Nov. 2003.

 

[12]. Quoted in Christopher, op cit., p. 109.

 

[13]. See Jonathan Shay, Achilles in Vietnam: Combat Trauma and the Undoing of Character, Touchstone, New York, 1995, p. 129-135.

 

[14]. See footnote 8, above.

 

[15]. Steven Emerson, American Jihad: The Terrorists Living Among Us, Free Press Paperbacks, 2003, p.p. 1-285.

 

[16]. See, for instance, Children for Combat, Jerusalem Post, March 16, 2004, which reported an incident in which an 11-year old boy was sent to school with a backpack loaded with a command detonatable 10-kilo bomb. This was only one of 29 such cases in the past 3 years involving children under the age of 18 , 22 of whom were killed.

 

[17]. James Surowiecki, The Financial Page: Army Inc., The New Yorker Magazine, 1/12/04.

[18]. Steven J. Zamparelli, Competitive Sourcing and Privatization Contractors on the Battlefield, Air Force Journal of Logistics, v. 23, n. 3, Fall 1999, p. 115.

 

[19]. Jane Mayer, Contract Sport, The New Yorker Magazine, Feb. 15 and 23, 2004, pp. 80-91.

 

[20]. Surowiecki, op. cit.. Actually, in cost-plus contracts, contractor's profits are calculated on the basis of the contractor's costs plus a fixed fee that does not increase with those costs, a substantially different financial arrangement from the one that Surowiecki described (conversation with Gordon Campbell, Principal Deputy to the Commanding General for Acquisition, Combined Arms Support Command).

 

[21]. Quoted in Mayer, ibid., p. 87.

 

[22]. Timothy Spicer, quoted in Adams, op. cit., p. 115.

 

[23]. AF Pamphlet 110-31, Civilians Accompanying the Armed Forces, quoted in Zamparelli, op. cit., p. 112.

 

[24]. Quoted in Zamparelli, op. cit., p. 105.

 

[25]. Adams, op. cit., p. 104.

 

[26]. Adams, op. cit., p. 112.

 

[27]. Kellogg, 2003, op. cit.

 

[28]. As noted by Surowiecki, op. cit., and confirmed by the attitude expressed in Malcolm MacKenzie's letter to the editor, The Mail: Halliburton's War, The New Yorker Magazine, 1/26/04, for example.

 

[29]. See Adams and Zamparelli, op. cit.

 

[30]. Surowiecki, op. cit.

 

[31]. Consider, for example, how KBR's failure to pay its subcontractor responsible for delivering "just in time" support for our troops in Iraq while it undergoes internal audit by the Pentagon, which now threatens to leave those troops without hot meals (David Phinney, Cold Chow?, Army Times, March 22, 2004), constitutes a potential morale decimator that could have negative consequences for US military operations in Iraq.

 

[32]. Final version Military Extraterritorial Jurisdiction Act of 2000 (Enrolled Bill) S.768 as passed by both Houses, 1/24/2000, http;//thomas.loc.gov/home/billdownloadhelp.html.

 

[33]. Department of Defense, Office of the Secretary, 32 CFR Part 153 {0790-AH73] Criminal Jurisdiction Over Civilians Employed By or Accompanying the Armed Forces Outside the United States, Certain Service Members, and Former Service Members, Federal Register, V.69, no. 21, Monday, Feb. 2, 2004, Proposed Rules, p., 4890-4901.

 

[34]. Legal opinion of W. Darrell Philips, Chief, International and Operational law Division, AF JAG School, Maxwell AFB, quoted in Zamparelli, op. cit., p. 113.

 

[35]. Pauline Kaurin, Five Steps to Noncombatant Protection, JSCOPE, 2004, http://www.usafa.edu/isme/JSCOPE04/ Kaurin04.htm.

 

[36]. Maj. Christopher Bence, Warden Vs. Pape, Air and Space Chronicles, 28 Feb. 2000.

 

[37]. Col. John A. Warden III, The Enemy as a System, Airpower Journal, Spring, 1995, v. 42.

 

[38]. Matthew Pape, Can We Put the Leaders of the "Axis or Evil" in the Crosshairs?, Parameters, Autumn 2003, v. xxxii, n.3, p. 62-71.

 

[39]. Boaz, Ganor, head of the International Policy Institute for Counter-Terrorism in Israel, quoted in Greg Myre, Death of Sheik Raises Question of Hamas Fate, The New York Times, 3/23/04.

 

[40]. Under Pressure, US Criticizes Israel Move, The New York Times, 3/23/04.

 

41. Davida Kellogg, A Moral Assessment of Warden's Five Ring Strategy, in prep.

 

[42]. As discussed by Christopher, op. cit., p. 21.

 

[43]. Surowiecki, op. cit.