“Minding the Prophet Margin: Just War, Accountability, and the Private Military Contract(or)”

Transcript of an academic presentation given for the Business of War panel of the Christian Scholars Conference at Lipscomb University, Nashville, TN (June 2013)

We’ll start with our expectations low. I did not write a paper, I wish I could have, but I ran out of time. The manuscript I am working on took much longer than I anticipated, but Tuesday I wrapped it up a frantically writing feverishly for this presentation. 

I provided an abstract for the conference bulletin, and I try to follow that more or less, I have 3 sections I am going to cover: war as a moral public act, war as commercial morality, and war as fact of life. This began as a series of really wordy bullet points, so I hope you will forgive me. As Christians you kind of have to. 

I. War as a Moral Public Act

As a starting point, I really appreciate Dan Bell’s book War as Christian Discipleship: Recentering the Tradition on the Church Rather than the State. In it, he distinguishes just war as Christian Discipleship (CD), which is a form of life that must account for war, as opposed to Public Policy Checklist (PPC), which fails to imagine a life apart from war. In this presentation, I will focus on PPC, which is effectively his attempt as creating a funnel through which to understand the varying major tenets of what we have come to call the “just war tradition.” I will not focus on discipleship much, it might come in toward the end, but he outlines seven major tenets in his book that he calls PPC. He lists those as:

1. Legitimate Authority
2. Just Cause
3. Right Intent
4. Last Resort
5. Reasonable Chance of Success
6. Discrimination
7. Proportionality

Some of the problems of that, as I have mentioned, is that it fails to imagine a life apart from the context of violence. Another way of putting that is ‘who are we, if we are not fighting?’ And that should draw on images from Stanley Hauerwas’ War and the American Difference: ____, in which he talks about America as a nation that requires war in order to make sense of its national identity. 

But there are strengths [to JWT], and Dan Bell and others, in varying degrees, want to get rid of the just war tradition or criteria. I am not one of those people. I think JWT can have significant effect secularly as well as ecclesial in creating a kind of framework through which to understand war in the postscript. In fact, Bell and others have been doing a lot of work trying to reclaim Augustine against modernity as someone who is responding to war pastorally, not formulaically. In fact, Aquinas, when he laid out his Summa, the more legalized form of JWT that we have, was actually a primer for [theology students, including] priests preparing to take confession. So we have taken that out of context and created this formula that Dan Bell calls the PPC. 

So in my project, I want to look at private military contractors, private military companies, and try to figure out, if JWT applies primarily to states and individuals, then what applies to these corporate entities. Academi was formerly Z, which was formerly Black Water, was founded by Eric Prinz, a former navy SEAL, in 1998. I focus on them because of their high profile in the “Global War on Terror.” They are/were the largest of three private military contractors that the United States used in Iraq.  I worked with them, and I think they are still in business in NC. 

As a business, however, it is in need of securing profit in order to survive as a corporate person. It is not publicly traded and it is therefore less subject to scrutiny as a privately held company. Its founder has said, “We are trying to do for the national security apparatus what FedEx did for the postal service.” Notice the postal service is now defunct, or rather it is facing obsolescence. It is cutting back, and now there are advocates for getting rid of it. The title of my presentation, “Minding the Prophet Margin’ I distinguish between the profitability of war and the prophet margin. JWT requires a kind of prophetic distance between church and state, so that one does not become beholden to the other. Honesty at that level means that there must be no hint of conflict of interest of conflicting loyalties. Another way of putting that is, in the words of Saul Alinsky’s AIF organizing principles, “no permanent friends, and no permanent enemies.” 

However, there is a troubling confluence between nationalism and commercialism. For myself personally, I try to draw to mind, trying to think of how this is beginning to get played out. There were 4 or 5 individuals who, while I was in Iraq, were killed and strung up over a bridge above the Euphrates in Fallujah. In recalling that event, I remember thinking, at that time, that the story went that they were soldiers. Does anyone know that? Does anyone know that that is not true? They were actually black water employees. But when it was told to me, I remember specifically remembering it as fellow soldiers. Instilling a certain fervor in me to respond in kind. But they were actually Black Water employees loyal not to the US, but to their company, I guess, or their code of ethics. 

So we have to be careful that the prophetic nature of a framework like JWT does not get reduced to the mere profitability of the marketplace. The invisible hand too often fails to manifest itself strongly enough in these situations, instead being nothing but an apparition. 

II. War as Commercial Morality, AKA The Business of War. 

In this section, I want to ask ‘what kind of teeth is the profit margin of commercial morality capable of having? If JWT has been leveraged for the use of nation states, and has contributed significantly to international law (thank you Hugo Grotius in the 17^th century), and as political significance shifts from nation states to transnational corporations, then where/how does this move ethical consideration in light of war? In other words, to what or whom are corporations accountable? And a quick disclaimer, my use of the acronym PMC includes companies and their employees, who are basically contractors, so I use private military companies/contractors, I use those interchangeably. 

Legal documents, however, like Academi’s code of business ethics and conduct, as well as the Montroe Document, which I will cover, they are more careful to differentiate between corporate entities and persons. Though not in such a way, I feel, as to render inaccurate or inappropriate a very close conflation as I make, between companies and contractors which are individuals. It is my sense that the status given corporations is something like a privileged personhood, making the search for a consistent ethic, which would be applicable both to human beings and corporate entities, very hard to find. In a way, this is precisely the problem with which I take issue.  

For example, if we want to say that a human being that has been directly responsible for the death of another human being can be put to death, why should we not be dissolving corporations that are found to be irrevocably accountable for the death of human beings? So it is inconsistent. And it goes both ways, I think. 

Academi’s Code of Business Ethics and Conduct is about a 40 page document that names a number of legal documents to which it “requires compliance,” including the Hague convention, the UN UDHR, Geneva Conventions, and the Convention Against Torture. In the United States, the War Crimes Act of 1996, Military extra-territorial Jurisdiction Act of 2000, the Montroe Document, and the International Code of Conduct for Private Security Service Providers, and the UCMJ. 

More specifically, my interests are its section on “Rules for the Use of Force” or RUF. As it relates to something like the PPC, as Bell outlines, when required, [rules for the use of force] must be (and, very quickly, I noticed that it said “the military ROE” for PMCs under Black Water’s corporate oversight, “are not to be used for Use of Force decisions.” I’ll get into why that might be the case, but I thought that was kind of interesting). So for PPC, some of the following might be parallel;

When force is used, when it is required, it must be “proportionate to the threat, appropriate to the situation, limited to what is strictly necessary,” and, further, Academi employees shall not “engage in torture or any other cruel, inhumane, or degrading treatment or punishment” and finally, “firearms shall only be used in self defense or in defense of others against immanent threat of death.” 

So some of the parallels might be 

Proportionate of course to proportionality

Appropriate might invoke legitimate authority

Limited might call to mind discrimination

Torture might be right intent and 

Defense might be last resort

But that is as close as they will come to explicitly naming their moral frame for military specific activities. The montroe document, and a lot of these UN documents, distinguish military companies from security companies, though Black Water (and I’ll keep saying Black Water because it is just what I have in my head) they sometimes go both ways. So Black Water in my experience, the only time they had weapons was when they were escorting diplomats. But PMCs include companies like KBR, that hired specifically drivers [who] could elect to carry a weapon but did not always. When I encountered them, they really just sat in the truck, drove back and forth, which could be very dangerous, but they did not engage in military kind of engagements. They just sat and drove, but under the UN documents, they would be considered something like a PMC [since they were authorized the use of weapons]. Because the security and military functions are somewhat deluded in the documents I have read at least. 

There some important considerations employees must take into account, but the language is much less decisive [where? Academi or UN docs?]. Being prefaced with a statement that “employees will be guided to the right decisions by their own personal values, discretion, and good judgment.” Unfortunately, personal experience leads me to believe that, while some martial persons are great people, it is not the case for all. The very nature of the necessity for law itself suggests [the need for?] an over-arching system of accountability be required in a world in which personal values come into stark contrast. Stanley’s done a lot to talk about the liberal enlightenment project of trying to neglect the fact that we have conflicting personal interests that we are trying to attend to them all is just not going to happen. 

Like a good business, most of their code of conduct consists of specifically workplace related considerations, like equal employment, harassment, unprofessional behavior, etc. The monrtoe document, on the other hand is more helpful, but in less ways than we might like. Produced by the Swiss government in conjunction with the international committee of the Red Cross (ICRC), it is available online. It is about as long, maybe a little bit longer than the [Academi’s] Code of Ethics. It is not legally binding, which is important. It was signed by 17 nations, including Iraq, Afghanistan, the US, UK, and others. Notable exceptions include the state of Israel. Published in 2008 by the Swiss government, as I’ve said, and the ICRC, it defines three majors groups with which the document is concerned:

1. Contracting States are countries which hire PMCs
2. Territorial States are in whose boundaries PMCs operate
3. Home States are the countries in and out of which PMCs are based

PMC personnel can fall into three categories (or possibly companies as well, it is unclear), based on the Third Geneva Convention, which are to include:

1. Civilians
2. Member of the armed forces 
3. Militias, which are also volunteer corps belonging to a state party

PMCs are most often classified as civilian, even though they can be armed. And the reasoning might be something like ‘we cant bar civilians from carrying personal weapons,’ so there must be something beyond carrying a weapon that identifies someone as non-civilian, as a combatant. Because they operate outside of military chain of command, they are not often classified as members of the armed forces. 

Finally, militias must meet four criteria. To fall into 

1. To fall under responsible command
2. To have distinctive, fixed sign
3. Carry arms openly
4. Obey the rules and customs of war

Despite these helpful criteria, the montro document has fun little gems like PMCs, as companies “are not bound to respect international or humanitarian law, which is binding only on parties to a conflict, and individuals, not corporate entities. Nor are they bound by humanitarian law, which is only binding on states.” How the loopholes might be exploited are fairly obvious – you conceal weapons, or you don’t use distinctive markings and that [undermine] the militia category. The parallel command structure they use, apart from the military (notice: “military ROE should not be used”), can circumvent the classification as members of the armed forces. So civilian is all that we have left. 

In its current form, it seems to neglect important problems faced when there is overlap. For example, in the case of the war in Iraq, the US is both Home and Contracting Party, while Iraq was the Territorial State. It forces the question if this does not constitute a disproportionate commitment to the interests of one party of an armed conflict. The montroe documents states it is the territorial state that has jurisdiction to prosecute for war crimes, but the US can (and I am fairly sure has, but I haven’t been able to research enough) use its status of forces agreement to protect their own PMCs contracted with them, housed by them, and also contracted by them. 

Or another example, the forfeiture of civilian status “while under a command responsible to an armed conflict.” So if it’s found that you are answering to a military chain of command, you forfeit your civilian status. In my own experience, PMCs accompany convoys frequently, and also are documented guarding military bases and overtly state-affiliated persons, including non-diplomats [company CEOs?], such as visits by politicians and congress people. They have also operated weapons systems in a combat operation, all of which would disqualify them as civilians. 

In these cases, how are PMCs fundamentally different than a uniform-wearing state agent? They may not salute a flag, but their loyalty to the bottom line makes clear that they are serving a state like party to the armed conflict. Now that war has become a profit-producing environment, those defending the dollar should be no less accountable [to what?] than those defending democracy. 

III. War as a Fact of Life

War is a fact of life. In order for it to be a moral act instead of a commercial pursuit, we all must recognize our common responsibility by contributing to and/or securing the common good. The difference between soldier and ‘hired gun’ (side note, “mercenary,” etymologically, is really just somebody who does something for anything. So a prostitute could be a mercenary), is increasingly narrow. The problem is one of staffing, specifically the lack there of in the US military. In other words, recruitment is low. 

The US ambassador to Iraq, Ryan Crocker, former US ambassador to Iraq, remarked that there is no way to fulfill requirements of modern American war fighting without the use of PMCs. In the context of an all volunteer force, or AVF, “there is no alternative except through contracts.” Would his claim be possible apart from the recruitment issues the military faces? Recall founder Eric Prinz’s statement about FedEx and the post office. 

Part and parcel to this discussion must be the phenomenon of what’s being called the “economic draft,” in which nobody has to serve, so nobody does. “Nobody” being the poor. If you look at the military documents that outline equal employment and racial diversity, they don’t often differentiate sharply between enlisted and officer. Little literature that I’ve encountered gives enough credence to the social, the class nuances between enlisted and officer. And they are there. People who are joining the military for noneconomic reasons, by and large, are white, affluent men who are going into the officer corps. 

In the words of a high-ranking staff person in the senate armed forces committee, in personal conversation, “it isn’t a right to serve, it’s a privilege.” I would encourage him to tell that to recruiters in their hometown [recruiting assistance program (HRAP)] suffering substance abuse and suicide rates higher than any other specialty in the active duty military. 

Furthermore, the fact is that it is still about body count. In Vietnam, soldiers reported how many they killed as a marker of success. There are often reports of body count being tied to promotion, both within NCO and officer corps, as though it’s a conventional war where you kill more of them than they kill of you. Operating off this weird, General Patton kind of idea, kind of whoever kills more wins. In the Civil War, more northern [union] soldiers died than southern [confederate], but they had a larger army… 

The same sentiment plays out in reverse today – “not one state department employee was killed while we were protecting them,” and that is [becomes] a marker of success. That was a quote from founder Eric Prinz in Men’s Journal in 2011. It is still about how many are, or are not, being killed, as though war is really only about killing. However, as a moral and political act, as both PPC and Christian discipleship, as defined by Bell, require. War must be about more than body count on either side, it must be about preserving justice, or restoring peace. Even in a strictly secular environment. 

To talk about death as the only determinative element of war robs it of its moral significance (and I’ll say more about that in the Q&A if you like).  To undo the commercializing effect of the abundance of PMCs that are doing the fighting, that uniformed and accountable state agents otherwise would, we need to reconsider the illusion of the all-volunteer force. Business and war do not mix, and it is the increasing profitability thereof that fuels the moral dyslexia like that we see around frameworks like PPC, including the Montroe Document and Black Water’s code of business ethics and conduct.

The confusing loopholes inherent in each document repeated verbatim within the Code of Business Ethics and Conduct… the code of conduct quoted the Montroe Document in a series of places I found a little problematic. Commercial morality compromises the necessity and critical distance between virtue and vice. It threatens to destroy the prophet margin in favor of the profit margin. This is going to upset a number of people, but one practical step that might need to be played out is a return to a kind of compulsory service. Not military service but to… in WWII, the Mennonite Central Committee set up civilian public services, [which] were ways in which objectors and other people who would not fight in WWII were able to contribute to the common good, broadly understood. They didn’t have to wear uniforms, didn’t have to carry a gun, and they could contribute significantly and substantively to the common good. 

Part of the problem I’ve encountered with both what I’d call anarcho pacifists and the isolationism that can run through anarcho pacifism, and the small government tea partiers, that want government out of their lives, is such that they in effect may be demanding moral [culture/social?] withdrawals [from the common wealth] without making moral [same] deposits into the common good. I could say more about that, but reconsidering the draft is necessary to undo the economic draft IOT countervail the abundance of PMCs, who are not accountable to anything, basically, other than what I have read. 

In conclusion, we need to mind the prophet margin before being morally consumed by the profit margin. Thanks for listening.