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Blackwater

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While I'm not on-face opposed to mercenary armies, I have three concerns

1. Their leaders and members aren't sworn to uphold the US Constitution. What's to stop them from turning on the US? While it's not likely to happen in this particular circumstance, I think it's dangerous for the US government to subsidize large private armies that aren't really under its control.

2. I haven't read the recent book about Blackwater, but the issue of jurisdictional loopholes concerns me. Mercenaries should consent to subject themselves to the UCMJ as a condition of their employment.

3. The guy who wrote the book claims that there are 10Ks of mercenaries in Iraq, effectively constituting a "shadow war." His claims may be exaggerated, but I'm somewhat concerned that the Executive could use mercenaries to effectively skirt Congressional oversight of its war powers.

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So if I understand correctly you are implying that the retaliation of force against someone who is eventually innocent (such as in the case of reasonable searc) is a form of "collateral" damage. Would this be the same sort of collateral damage that occurs in mass bombings during wartime? (which I have argued for vocally on the board, so I could buy that analogy if that is how you mean it).
Yes, that's correct. Limitations (which do properly exist) on bombing, arrest and searches, inter alios, are not absolute. The fact of a rights violation does not then sanction massive, willy-nilly counter-violations in the name of retaliation -- retaliatory force should be proportional and should only be used against those who are in fact the rights-violators. But this does not mean that a government should fail to perform its proper function because it cannot guarantee with absolute certainty that only the guilty will be affected. Bombing so-called "civilian" targets, especially in the context of contemporary Middle Eastern warfare, is mandatory, because the former distinction between civilian and combatant is essentially invalid. Even when there is a well-defined division of soldiers and civilians as there was in WWII, it was necessary to bomb cities in Germany and Japan because it was insufficient to shoot their soldiers on the battlefield. (By contrast, I believe that it was sufficient to shoot Italian soldiers on the battlefield). Collateral damage should be limited, but not at the expense of self-destruction.
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I'm not sure about the legality in particular cases, but ethically, the state cannot grant anyone the power to initiate force, which means that it cannot grant anyone the power to violate the Constitution, which means that private forces are just as limited as military forces, except in their freedom to act as private citizens. When acting abroad, a private force should be held to the same standards as the military of that government, as well as the law of the nation it's in, or of the occupying forces.

So, if a mercenary commits an atrocity in Iraq, he cannot be tried under a military tribunal, but he can be tried under Iraqi law, courts set up by the occupation forces, or an international court of justice -- whichever one asserts the de-facto authority. A mercenary on US soil is tried as any other private citizen would be. In no case do they have any "special" powers that the military does not.

According to a recent book critical of Blackwater, (Blackwater: The Rise of the World's Most Powerful Mercenary Army) there is a jurisdictional hole in which these security companies operate. According to the book companies like Blackwater, being private, operate outside the US military code of conduct, but the US Govt. contracts they operate under also protect them from civil liability. BTW, the book was written by a guy who writes for The Nation, so you can be fairly sure he does not like the current administration.

This is the key issue then: what type of oversight does Blackwater have? The problem with determining this is that their contracts vary depending on who they are subcontracting for (usually the Army subcontracts to KBR who subcontracts to someone else who then hires Blackwater contractors). From what I can tell, there is no government authority that Blackwater is directly responsible to. I'll have to do some more research.

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