Blackwater Rising: The Legal Issues Raised by the Unprecedented Privatization of U.S. Military Functions

The Army has used civilian contractors to provide supplies and services to its forces in the field since the Revolutionary War. These early contractors fed the cavalry’s horses and transported supplies. Over the years, the role of the civilian contractor has dramatically evolved. Following the Vietnam War and the end of the draft, there has been an ever-increasing privatization of functions previously performed by the military.The wars in Iraq and Afghanistan, which began in response to the September 11 attacks and have only recently started to come to a formal end, have significantly accelerated this process. As a result, by 2010 the number of contractors in these battle zones began to exceed the number of U.S. troops.This massive privatization of functions previously carried out by the military has also resulted in an actual re-definition of their roles. Private contractors now perform many jobs that were formerly the responsibility of uniformed personnel, including those in forward battlefield positions as well as in active combat. This significant change in role has been accompanied by a corresponding rise in deaths and injuries for contractor employees, so that they now surpass those sustained by military personnel.The redefinition of the civilians’ role in battle has raised many new legal issues, for which there was very limited prior relevant precedent. In the civil context, these issues include the applicability of the political question doctrine to tort cases arising on the battlefield; contractor immunity under the Feres doctrine, the government contractor defense and the so-called combatant activities exception; the application of the state secrets doctrine and the enforceability of arbitration clauses in employment contracts. Legal questions also arise in the criminal sphere, such as the liability of civilian employees for breaches of local laws as well as the Military Code of Justice and the extra-territorial jurisdiction of U.S. courts to hear cases arising from alleged criminal acts occurring in overseas war zones.As a result, the federal courts have been left to struggle with many new and complex questions raised by these changed civilian roles, relationships and functions without any significant framework for guidance. Consequently, some cases have dragged on for over a decade, while others have reached diametrically opposite results, which are often not logically capable of reconciliation.If there was ever an area of overwhelmingly unique federal interest, it is the subject of military contractors’ legal liabilities and responsibilities in war zones. The present patchwork quilt of remedies is neither adequate nor fair and is totally lacking in the predictability, which the law should provide to its citizens. Too often the families of civilian men and women, who died while serving in the roles traditionally performed by soldiers in war time, have been denied any effective remedy for their loved one’s sacrifices