The Armed Forces of the United States are designed to be supported by capabilities provided by civilians. The Army, for example, depends not only on Reserve and National Guard components for warfighting elements, but also on private contractors for numerous roles no longer performed by military personnel. Originally working in small contingents focused on logistical functions, private contractors now rival military personnel in number in the battlespace. In addition to providing direct logistical support to the military, contractors perform equipment maintenance and reconstruction work, train military and police, and work as civil affairs staff, interpreters, and even interrogators. They also provide private armed security services. The issues arising from new roles are exacerbated by the growth of the contractor population in conflict zones at a pace that defies effective recordkeeping.
This rapid increase in the number of contractors has outstripped procedures meant more for acquisition of tangible objects than services. It has also placed private contractors in harm's way in a manner not envisaged in previous conflicts. Legal and regulatory schemes have been challenged and perhaps stretched beyond limits. The laws of war divide the world neatly into combatants and civilians, but on today's battlefields, the distinctions blur. Moreover, there are neither recognized nor logical rules of engagement for private individuals. The laws of armed conflict not only fail to accommodate armed private citizens, but also, in some instances, may treat them as unlawful combatants. Put simply, the requirements of the contemporary battlespace do not mesh well with procedures, regulations, and laws devised for a different era.
Growth of Privatization
The end of the Cold War exposed ethnic tensions and intra- and interstate rivalries that destabilized broad regions of the world. Neither the extent nor the nature of the resulting conflicts had been anticipated. In these conflicts, the battlespace is cluttered with large numbers of personnel and entities not previously seen as major players in conflict arenas. These include the United Nations and its many components, foreign governments, nongovernmental organizations (NGOs), a plethora of news media, and even private entrepreneurs who arrive without benefit of government sponsorship. The main driver of new entries in the battlespace is privatization of activities formerly performed by uniformed personnel.
In the United States, privatization means any shift of activities or functions from the state to the private sector and, more specifically, any shift of the production of goods and services from public to private. Especially where the privatized functions are military, this process has been contentious, as many argue that national security itself is being privatized. (1) However, it is beyond cavil that private military firms must provide the military with certain professional services intrinsically linked to warfare, which begs the question of what is and is not inherently governmental. The services to be provided often are ill defined until events unfold or technology changes. Although regulations for contracting these services are detailed, they leave significant issues to be resolved as they arise because the regulations were devised in another time and for purposes that do not always suit today's threat environment.
Probably the most significant change comes as a result of outsourcing some logistical needs previously provided by uniformed personnel. That outsourcing may be accomplished through NGOs, other governments, international organizations, or private contractors and may include outsourcing within the continental United States. This paper deals exclusively with the issues that have arisen from using private companies to support the U.S. military in a foreign conflict. For that purpose, Iraq will be the backdrop that illustrates the speed with which earlier practices of outsourcing have been overtaken by threats not contemplated only a few years ago. …