One of the most dramatic changes in the U.S. military establishment over the past quarter century has been the explosive growth of out-sourcing to private contractors of an increasing number of functions that were traditionally performed by military forces. Those functions include almost everything from the preparation of meals to trash collection, the building and maintenance of camps and bases, equipment maintenance, the interrogation of prisoners, recruiting new enlistees, driving trucks and flying helicopters, and even guard duty. Companies like Halliburton are reaping vast sums of money by providing support services to the Pentagon. According to one senior Pentagon official, the U.S. military would collapse without this support. Until recent years, however, contractors were limited to support functions and not to actual combat roles. But that is changing, and a new breed of business, known as the private military company (PMC), is emerging. Today, in Iraq alone, there are anywhere from 50,000 to 100,000 contract employees, as many as a quarter of them providing security services – which, on occasion, involve actual combat with the enemy. According to Peter Singer of the Brookings Institution, the firms providing security services in Iraq “have sent more troops and taken more casualties than all of our other reluctant allies combined.” Many of those who work for the PMCs are former special operations veterans who retire from the military and then ply their skills in the private sector for considerably more money. Among the better known PMCs operating in Iraq are MPRI (Military Professional Resources Inc.), Olive Group, AEGIS Specialist Risk Management, Control Risks, Triple Canopy Inc., and Blackwater USA. Budget Realities and Legal Issues But, although Iraq has certainly spurred the growth of PMCs, it is by no means the only market for such companies, which today are operating throughout the world. PMCs are protecting oil fields and pipelines, guarding airports and seaports, securing vessels on the high seas, protecting mining concessions, guarding celebrities and VIPs, ferreting out intellectual property theft and the counterfeiting of branded products, and even protecting endangered species from poachers. The growth of PMCs has mirrored the expansion of the security industry on a domestic basis. Throughout the United States, law-enforcement budgets have been stretched to the limit and, were it not for the millions of private security guards and cameras, crime might well be out of control. Indeed, private security cameras often provide crucial evidence in criminal cases, including the 1995 Oklahoma City bombing. Today, some PMCs have larger and more formidable military capabilities than many of the world’s smaller countries. This raises the question of the legal status of such companies in the modern world. Critics of PMCs say that they often cross the line and are, in effect, mercenary organizations. Among the best known mercenary companies in recent years were Executive Outcomes, which operated throughout Africa in the 1990s; Sandline International, which closed in April 2004; and Gurkha Security Guards Ltd., which was active in the Sierra Leone civil war. A number of other firms also provide men for the Praetorian Guard units of various developing countries, especially in Africa. Mercenaries? Or Civilian Contractors? In December 1989, the United Nations promulgated the International Convention Against the Recruitment, Use, Financing, and Training of Mercenaries. The Convention entered into force on October 20, 2001, less than six weeks after the terrorist attacks on the World Trade Center and the Pentagon. It is worth noting that, despite the United Nations’ opposition to such companies, the PMCs have, on occasion, performed contract work for the world body. But what is the distinction between a mercenary and a military contractor? In the 1977 Protocol Additional to the Geneva Conventions of August 12, 1949, a mercenary is defined as “any person who is specially recruited locally or abroad in order to fight in an armed conflict,” who takes “a direct part in hostilities,” “is motivated to take part in the hostilities essentially by the desire for private gain,” and “is neither a national or a Party to the conflict nor a resident of territory controlled by a Party to the conflict.” That definition would seem to include many employees of today’s PMCs. Traditionally, civilian contractors did not directly participate in hostilities, but that also has changed, especially in Iraq and Afghanistan. The U.S. government argues that companies like Blackwater USA do not fall under the mercenary provisions of international conventions because they are supporting the armed forces of a party to the conflict – i.e. the United States. Other Markets Also Available Private contractors also are part of the intelligence-collection process, both for government agencies and private-sector clients. Some of these companies are PMCs; others could best be ified as private intelligence companies (PICs), because they do not provide military support services. Just as the Pentagon is short of manpower and resources, so too is the CIA. The CIA’s Directorate of Operations (DO) has recruited private companies and individuals to handle what once were exclusively in-house functions, including the raising and support of paramilitary forces, the interrogation of prisoners, the filling of transportation requirements, and even some covert operations. Many companies provide multinational corporations with competitive intelligence and facilitate entry into difficult markets, where it may be necessary to deal with warlords, mafia chieftains, and political instability. It also is not unusual for private companies to investigate industrial espionage and intellectual property (IP) theft. In some cases, such companies conduct quiet wars against IP pirates and their government allies. That task is particularly important in countries like China, where the government does little either to protect foreign intellectual property or to enforce its own laws concerning piracy and other violations of trademarks, patents, copyrights, contracts, service marks, and the theft of trade secrets. The New Feudalism A quarter of a century ago, Robert A. Nathan, writing in Foreign Policy, warned that an increasing number of companies were engaged in the usurpation of police and military powers, and that some of their activities amounted to little more than a “return to the wild west.” According to Nathan, “If the international corporate sector seeks protection by private counter-terrorist security firms, a medieval situation may emerge in which the security function of the state is usurped by private contractors.” He described this emerging situation as “the new feudalism.” It is doubtful that even Nathan could have imagined the size and number of private military companies operating today. As long as military resources are strained across the globe, there will be plenty of work for private contractors. And the scope of their activities can only be expected to increase in the years ahead. Such activities are not inconsistent with the U.S. Constitution. Indeed, the founding fathers expressly anticipated a role for the private sector in the defense of the nation. The Constitution gives Congress only three war-making powers: declaring war, raising armies, and the issuance of Letters of Marque and Reprisal. Letters of Marque and Reprisal are essentially grants by Congress to private individuals to carry out military actions against enemies of the United States—historically, this usually meant maritime pirates. Just as private individuals, bearing Letters of Marque and Reprisal, played an important role in ending piracy on the high seas (some still exists, but in relatively isolated areas), in the world of the 21st century it should not be surprising that private contractors are and will be crucial to winning the war against terrorism.No tags for this post.