Guerrillas, Terrorists, Contractors, and Voters — A
Case for a Sliding Scale of Partial Civilian Immunity?
by
Davida Kellogg
Department of Military Science
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
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
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
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
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
1. could not be prosecuted because it
did not take place within the "special maritime and territorial
jurisdiction of the
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
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
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
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
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
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
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
[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
[7].
[8]. As argued by Osama bin Laden in his Letter to
[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.
[42]. As discussed by Christopher, op. cit., p. 21.
[43]. Surowiecki, op.
cit.