Letting mercenaries fight our wars undercuts the Constitution

This effort has had the support of Jared Kushner, President Trump’s senior advisor and son-in-law, as well as the backing of ousted chief strategist Stephen K. Bannon.

{mosads}The New York Times reported in July that the White House recruited Prince and Trump supporter Stephen A. Feinberg — the billionaire owner of the military mega-contractor DynCorp International — to “devise alternatives to the Pentagon’s plan to send thousands of additional troops to Afghanistan.”

Prince shot back in an op-ed that he finds the word “mercenary” pejorative. But, of course, his company (renamed several times after “Blackwater” became associated with lethal mayhem in Iraq) exists to make a profit — for Prince.

After the Iraq war, Prince sold off his interests in Blackwater — now named Academi — and founded the Frontier Services Group, or FSG, a security and logistics firm based in Hong Kong and financed by the Chinese government.

Prince, the brother of Education Secretary Betsy DeVos, has also reportedly worked to rebuild his private paramilitary business through foreign shell companies and is under investigation by U.S. authorities for possible money laundering and attempts to broker defense services to Libya and other countries.

According to The Washington Post, Prince also secretly met with a Russian envoy in the Seychelles islands in January, apparently as part of an effort to establish a “back-channel line of communication between Moscow and President-elect Donald Trump,” according to U.S., European and Arab officials.

Prince has euphemistically argued that a “restructuring” of the war – using private contractors (many of them presumably from foreign countries) as a “presidential envoy” — would cut U.S. costs in Afghanistan and would give U.S. troops “an exit ramp.” Particularly chilling is Prince’s suggestion that the replacement of U.S. troops with a corporate army would be inherently democratic, on the grounds that, as he put it, “Trump was hired to remake our government.”

There is nothing democratic about Prince’s plan. If implemented, it would threaten the very integrity of the U.S. Constitution.

Many Americans are unaware of an inescapable principle of constitutional law: With the exception of the Thirteenth Amendment’s ban on slavery, the Constitution binds only the government’s conduct. It does not limit the actions of private parties, with rare exceptions.

So when Facebook limits “free speech” by censoring hateful language online, the First Amendment has no say. The Constitution, with its checks and balances on power, does not apply to Erik Prince or his private army.

There is no mystery here. If Prince were to lead a mercenary army on the United States’ behalf, the American people would have virtually no say — either at the ballot box or in the courts — about the manner in which his troops carried out their contractual obligations or about whether Prince’s firm could be held accountable for anything that went wrong. Nor could we be sure that the U.S. government would be legally responsible to the American public for any bad acts by FSG.

The Bill of Rights would not constrain Prince’s army from violating U.S. citizens’ constitutional rights. The full panoply of military laws and regulations that bind the training and conduct of soldiers would not apply to Prince’s army (although Prince claims that “[a]ll contracted personnel would be subject to the Uniform Code of Military Justice” — a concession that would appear to sweeten the contract deal, though we haven’t seen the fine print). 

Federal statutes that limit government conflicts of interest and mandate transparency would not apply by their terms, either. Nefarious activity could occur in the name of the U.S. government and there would be little the American electorate could do about it. 

The Senate would not have the constitutional power to veto Prince’s appointment — even if he wielded power on the scale exercised by government officials whose hiring requires Senate approval. The president’s power to remove Prince would likewise derive solely from the terms of Prince’s contract — which the American public would not be able to preview or weigh in on — and not from Article II of the Constitution. Because Prince and his gang of mercenaries are not government actors, federal and military courts’ power to review their actions would also be severely limited.

Although Prince and his firm could face civil claims for wrongdoing on the battlefield, an American citizen could not walk into court and challenge Prince’s decision using the laws normally employed to challenge actions by administrative agencies within the executive branch. Prince’s firm is not an administrative agency. It is a private company that happens to have strong and potentially insidious ties to the Chinese government. And, of course, lots and lots of weapons. 

In short, private contractors are not accountable to the American public in the same ways that government actors are accountable. Private industry also has a profit-making incentive, making it less interested in serving the public good than are government officials who take an oath to uphold the Constitution — and whose jobs do not depend on the bottom line of a spreadsheet.

Our democratic system of separated powers was set up to ensure that too much unbridled power did not end up in one place. Our Constitution also does not tolerate a “government” that is divorced from the system of accountability designed to ensure the people’s ability to govern themselves 

By courting proposals to outsource military operations in Afghanistan, the White House could be throwing wide the constitutional barn door. If the proposals are implemented — if we allow private parties like Prince to go to war in Afghanistan in America’s name — it is impossible to tell whether the barn itself will survive. 

Kimberly Wehle is a professor of law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater Investigation. Wehle is also the author of the forthcoming book, “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”