Academic journal article Northwestern University Law Review

"Jealousies of a Standing Army": The Use of Mercenaries in the American Revolution and Its Implications for Congress's Role in Regulating Private Military Firms

Academic journal article Northwestern University Law Review

"Jealousies of a Standing Army": The Use of Mercenaries in the American Revolution and Its Implications for Congress's Role in Regulating Private Military Firms

Article excerpt

ABSTRACT-The use of mercenaries during the American Revolution should inform the debate over the regulation of private military firms (PMFs) today. This Comment examines the historical use of mercenaries to demonstrate that a standing army, in the experience and understanding of the Framers, included both enlisted citizens and private enterprises who performed a wide range of essential military functions. It further argues that PMFs as they currently function in Iraq and Afghanistan fall squarely within the Framers' broad conception of a standing army. The debates about national defense following the American Revolution show that the Framers accepted a standing army in the new nation solely on the condition that it be regulated and controlled by Congress. However, PMFs are currently governed as civilians by the terms of their contracts with the Executive Branch. This arrangement has led to a number of serious problems, including widespread waste and fraud resulting from deficient oversight, lack of accountability for brutal human rights violations, and distortion of the democratic decisionmaking process. This Comment argues that treating PMFs as civilians for the purposes of regulation is misguided, both as a constitutional and practical matter. Congress must exert control over PMFs using the same system that governs the military, in accordance with the separation of powers over national defense established at the framing.

INTRODUCTION

On August 31, 2010, President Obama announced the end of combat operations in Iraq.1 In the eighteen months preceding the announcement, nearly 100,000 troops returned home.2 But the withdrawal of troops did not necessarily mean a reduction in U.S. military presence.3 A surge of private military firms (PMFs)4 arrived in Iraq as U.S. troops departed.5 The United States would maintain its military hegemony in Iraq beyond the end of combat operations, but it would exercise authority through the use of private military companies rather than American troops.

A deep ambivalence has accompanied the use of PMFs in Iraq and Afghanistan.6 As a presidential candidate in February 2008, Hillary Clinton sharply criticized military contractors, referring to them as mercenaries and sponsoring legislation to ban them.7 As Secretary of State in July 2010, however, in the midst of the troop withdrawal from Iraq, she asked Congress to approve funding to double the number of PMFs working in Iraq under the authority of the State Department.8

Condemning the use of PMFs when politically expedient and then employing them when convenient is not a new phenomenon in American history. One of the complaints lodged against King George in the Declaration of Independence was that "[h]e is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation."9 Nevertheless, during the Revolution, American military leaders actively sought the aid of mercenaries to support their fledgling army of enlisted men.10 It would have been odd for them to do otherwise: the use of mercenaries was the norm in European warfare at that time.11

The use of mercenaries during the American Revolution should inform the debate over the regulation of PMFs today. This Comment examines the historical use of mercenaries to demonstrate that a standing army, in the experience and understanding of the Framers, included both enlisted citizens and private enterprises who performed a wide range of essential military functions. It further argues that PMFs as they currently function in Iraq and Afghanistan fall squarely within the Framers' broad conception of a standing army. The debates about national defense following the Revolution show that the Framers accepted a standing army in the new nation solely on the condition that it be regulated and controlled by Congress. …

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