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REGULATING THE NEW PRIVATEERS OF THE TWENTYFIRST CENTURY
William R. Casto*
I. INTRODUCTION
In the last twenty years, a confluence of factors worked a significant
change in the way that nations wage war. Some four centuries ago, the
emergence of nation states in Western Europe led to the monopolization of
military resources by the state, and this state-owned-and-run model
eventually spread to virtually the entire world. But the times are changing.
Today, at the beginning of the twenty-first century, most nations-large and
small-routinely outsource some military missions to private corporations.'
National military establishments have always been subject to detailed and
rigorous regulation by their respective nations, but the new corporate
warriors 2 frequently are not. This Essay examines the need to create effective
regulatory regimes for the new corporate warriors.
In large measure, the world-wide emergence of military outsourcing to
privatized military firms ("PMFs") 3 stems from the end of the Cold War
*
Alvin R. Allison Professor of Law, Texas Tech University. This Essay elaborates
upon my comments at the Rutgers School of Law-Camden Symposium, "Twenty-Five Years
After Fildrtiga v. Pefia-Irala:Exploring the Tension Between Accountability and Foreign
Policy." I thank the participants, especially Beth Stephens and Kristin Myles, for their
comments.
1. See generally P.W. SINGER, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED
MIuTARY INDUSTRY (2003); Laura A. Dickinson, Government for Hire: Privatizing Foreign
Affairs and the Problem of Accountability Under InternationalLaw, 47 WM. & MARY L. REV.
135 (2005) [hereinafter Dickinson, Government for Hire]; Jon Michaels, Beyond
Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing
War, 82 WASH. U. L.Q. 1001 (2004).
2.
3.
I borrow the phrase from Singer. See SINGER, supra note 1.
The acronym is Singer's. See id. at 8.
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between the United States and the USSR. During the Cold War, the
superpowers tended to buttress otherwise unstable governments around the
world as a way of securing allies. In particular, financial support for
governmental military establishments was routinely available. Now world
powers are comparatively uninterested in the stability of many countries and
regions, and the former practice of providing significant support has lapsed.
At the same time, many powers have substantially reduced their military
establishments, and the reduction has flooded the world with a surplus of
military personnel and equipment. Finally, the opening of economies around
the world has significantly facilitated the international private sale of goods
and services.4 In the United States, "[e]very major American military
operation in the post-Cold War era has involved considerable levels of
support and activity by private firms offering services that the U.S. military
used to perform on its own." 5
PMFs perform a wide variety of services. At least one foreign country
has hired a private corporation to mount an entire military campaign on a
virtually turnkey basis. 6 The corporation planned the campaign, provided the
command and control structure, and also provided a battalion on the ground
to supplement local forces, specialized support troops, helicopter gunships,
and fixed-wing combat and support aircraft. The enemy forces were quickly
routed.
7
The United States hires PMFs to provide a wide range of services
ranging from mundane mess hall operations to operating highly complex
technical equipment. In addition, PMFs working for the United States train
foreign armies and provide security and bodyguard services abroad for
branches of the American government.
The conduct of American soldiers and sailors has always been subject to
a comprehensive array of overlapping regulatory systems. The most
important control always has and always will be military discipline. Military
personnel are socialized into rigorous chains of command, and soldiers
routinely follow orders. In addition, our soldiers at home and abroad are
subject to the Uniform Code of Military Justice, 8 which provides a
comprehensive system of criminal law.
In contrast to the national military establishment, corporate warriors are
subject to a significantly weaker and frequently sporadic panoply of
4.
5.
6.
7.
8.
See id. at 49-72.
Id. at 16.
Seeid. at 4, 93-94, 112-13.
See Michaels, supra note 1, at 1012-47.
10 U.S.C. §§ 801-950 (2000).
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regulatory systems. Private corporations and their employees are not subject
to military discipline the way soldiers are. Their primary motivation is
financial gain. Nor are private citizens subject to the Uniform Code of
Military Justice. 9 Of course, private persons within the United States are
regulated by state and federal criminal law, but United States law does not
generally regulate extraterritorial activities.'° When corporate warriors travel
abroad, they frequently are not subject to United States criminal law." In
theory, they are subject to the laws of the foreign country where they operate,
but the practice frequently falls short of the theory. Likewise in theory,
international law bars the use of mercenaries, but PMFs
around the world do
12
not fit the international law definition of mercenary.
Recent experiences in the Balkans illustrate the problem. The employees
of a PMF working for the Army became involved in illegal arms trade,3
prostitution, and a series of sex crimes including "owning" young girls.'
When a corporate employee complained, the corporation fired the employee
and quickly transferred the implicated wrongdoers out of the Balkans.' 4 No
one was ever prosecuted for this sordid and outrageous misconduct.' 5 The
Balkans example involves apparent lawlessness by private citizens who
happen to have been employed by a PMF. The conduct was presumably
beyond the scope of their employment. Sometimes, however, a PMF
employee may engage in lawless activity that is intended to serve their
employer. Some of the interrogators involved in the Abu Ghraib scandal
were PMF employees. They have not been prosecuted for their apparent
misconduct because there were no laws applicable to their situation. There
was no Iraqi government at the time, and therefore there were no Iraqi laws
9. See Glenn R. Schmitt, Closing the Gap in Criminal Jurisdiction over Civilians
Accompanying the Armed Forces Abroad-A First Person Account of the Creation of the
Military ExtraterritorialJurisdiction Act of 2000, 51 CATH. U. L. REv. 55, 60-72 (2001)
[hereinafter Schmitt, Closing the Gap].
10. See infra notes 50-53 and accompanying text.
11. See infra notes 59-83 and accompanying text.
12. See P.W. Singer, War, Profits, and the Vacuum of Law: PrivatizedMilitary Firms
and InternationalLaw, 42 COLUM. J. TRANSNAT'L L. 521, 524 (2004).
13. See SINGER, supra note 1, at 222, 297-98 n.28. The corporation's local manager in
Bosnia apparently even videotaped himself raping women. Id. at 222.
14. Apparently the United States Army ordered the accused employees to be removed
from Bosnia within seventy-two hours. See Brief of Appellee at 6, Bilbo v. DynCorp, 55 Fed.
Appx. 416 (9th Cir. 2003) (No. 01-57039), 2002 WL 32115989.
15. See SINGER, supra note 1, at 222, 297-98 n.28.
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or institutions to regulate even the most heinous misconduct. Nor were there
any applicable American criminal laws.16
When a corporate warrior is operating in a region with no functioning
government, the lack of controls is exacerbated by the absence of local laws
and regulatory institutions. Even when there is an otherwise effective system
of criminal law in a foreign country, local prosecutors-as a matter of
prosecutorial discretion-frequently elect not to prosecute an American
citizen. Needless to say, the likelihood of prosecution is even further
diminished if the American flees the jurisdiction.
This Essay addresses the need for a comprehensive system of
overlapping approaches to regulating the overseas activities of PMFs
employed by the United States. Most of the issues and considerations
addressed are also pertinent to American PMFs working abroad for private
employers or foreign governments, but this Essay's analysis and
recommendations are addressed to PMFs working for the United States.
The problem of regulating American businesses empowered by the
American government to wage war abroad for profit is not new. Our
Founders were quite familiar with the concept and created a comprehensive,
three-tiered regulatory model for controlling entrepreneurs cloaked with
military authority. This Essay briefly considers the Founders' model1 7 and
then applies the Founders' insights to the problem of regulating today's
PMFs. There is a need for an effective system of criminal law to govern the
overseas activities of corporate warriors. 18 Criminal law, however, has never
been viewed as a complete and exclusive solution to the problem of
misconduct. The Founders believed that the victims of those who wage war
for profit should be entitled to a private remedy for wrongful acts, and
today's victims should have a private tort remedy to supplement the
sanctions of criminal law. This Essay considers purely domestic tort
remedies against corporate warriors 19 and also addresses tort remedies for
violation of international law. 20 Finally, some attention should be given to
the United States' administration of its contracts with PMFs. The Founders
believed in restricting capitalist warriors' profits when the warriors acted
16. See Glenn R. Schmitt, Amending the Military ExraterritorialJurisdiction Act of
2000: Rushing to Close an Unforeseen Loophole, ARMY LAW., June 2005, at 41, 42
[hereinafter Schmitt, Amending MEJA].
17. See infra notes 28-45 and accompanying text.
18. See infra notes 59-83 and accompanying text.
19. See infra notes 84-120 and accompanying text.
20. See infra notes 121-45 and accompanying text.
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wrongfully, and today's corporate2 warriors' profit motive should also be
harnessed to regulate their conduct. '
II. PRIVATEERING
In the late Middle Ages, princes frequently hired privately organized
companies of soldiers for specific campaigns, but by the late seventeenth
century, the old practice of free companies organized and run for profit had
faded into desuetude.22 A respected and insightful early student of the subject
explained, inter alia, "since war is not an occupation by which a man can at
all times make an honorable living, it ought not to be followed as a business
by anyone but a prince or a governor of a commonwealth. 2 3 After the
middle ages, the emerging nation states monopolized control of military
establishments through the creation of national armies. 24 Mercenaries were
still widely used, but they were incorporated as individuals into national
armies. 25 As nation states with modem national armies emerged, western
European countries developed comprehensive systems of regulation for their
military forces.2 6 These systems were based upon a strict chain of command
with comprehensive codes of military discipline.
The new PMFs of the last two decades are significantly different from
national military establishments. Military units traditionally have been firmly
oriented toward the achievement of national policies. Soldiers are motivated
by patriotism. Of course, they are also "jobists" who simply want to have
successful careers, but getting ahead or getting along in the armed forces
traditionally requires soldiers to orient their conduct toward achieving
national policies. In sharp contrast, PMFs are privately organized business
corporations that operate for profit. They are not subject to military
discipline and military codes. In a sense, they are throwbacks to the free
21. See infra notes 147-62 and accompanying text.
22. See SINGER, supra note 1, at 19-39.
23. NiccoLo MACHIAVELLI, THE ART OF WAR 14 (Da Capo Paperback 1990) (1521).
24. See WILLIAM H. MCNEIL, THE PURSUIT OF POwER: TECHNOLOGY, ARMED FORCE,
AND SocIErY 117-43 (1982).
25. See SINGER, supra note 1, at 32-38. In addition, countries would pay other countries
to rent the other countries' military regiments. The Hessian troops employed by Great Britain
during the American Revolution are a classic example. Id. at 33.
26. See MCNEIL, supra note 24, at 117 (noting that the spread of the "militarycommercial complex" was paralleled by "the bureaucratization of military administration").
27. Id. ("A well-drilled army, responding to a clear chain of command that reached
down to every corporal and squad from a monarch claiming to rule by divine right, constituted
a more obedient and efficient instrument of policy than had ever been seen on earth before.").
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companies of the late Middle Ages. Unfortunately, however, when nations
have turned to PMFs in recent times, scant attention has been paid to the
need to regulate the activities of PMFs. Instead, their government employers
have concentrated upon the accomplishment of specific missions with little
or no thought to the misconduct of their hirelings.
Any private business that is cloaked by the state with authority to
exercise military power obviously needs to be regulated by the state, but a
modern regulatory model for PMFs has yet to emerge. Although PMFs seem
to be a throwback to the free companies of the Middle Ages, that ancient
practice is of little value in the twenty-first century. Pillaging and rapine
were commonplace. One suspects, however, that the free companies'
princely employers paid scant attention to their independent contractors'
activities off the immediate field of battle.
The Age of Enlightenment provides a better model for regulating PMFs.
Although the land-based free companies disappeared in the seventeenth
century, western European countries and the United States, as well,
continued the practice of outsourcing significant aspects of war at sea to
private venture capitalists throughout the eighteenth century and into the
nineteenth century. In English-speaking countries, these merchantadventurers, who waged war for profit, were called privateers. The French
called them corsairs. During the Revolutionary War, most of the rebelling
colonies' naval forces were privateers, 28 and our substantial reliance upon
privateering as a national policy continued in the War of 1812. 29 For a
variety of reasons, however, privateering-like the free companies of the
Middle Ages had previously done-fell into desuetude by the end of the
nineteenth century.30
To twenty-first-century eyes, privateering may seem quaint, but the
ancient practice provides a valuable model for understanding the need to
regulate today's corporate warriors. There is a world of difference between
the practice of princes in the late Middle Ages and the consensus of our
28. EDGAR STANTON MACLAY, A HISTORY OF AMERICAN PRIVATEERS, at viii-ix (1899).
The Continental Congress and state governments commissioned over 3000 privateers. JACK
COGGINS, SIHPS AND SEAMEN OF THE AMERICAN REVOLUTION-VESSELS, CREWS, WEAPONS,
GEAR, NAVAL TACTICS, AND ACTIONS OF THE WAR FOR INDEPENDENCE 74 (1969).
29. See generally C.S. FORESTER, THE AGE OF FIGHTING SAIL: THE STORY OF THE NAVAL
WAR OF 1812 (1956); JEROME R. GARITEE, THE REPUBLIC'S PRIVATE NAVY: THE AMERICAN
PRIVATEERING BUSINESS AS PRACTICED BY BALTIMORE DURING THE WAR OF 1812 (1977).
30. See William R. Casto, The Origins of FederalAdmiralty Jurisdictionin an Age of
Privateers, Smugglers, and Pirates, 37 AM. J. LEGAL HIST. 117, 151-52 (1993) [hereinafter
Casto, Origins of Federal Admiralty Jurisdiction]. The United States did not use privateers
after the War of 1812. Id.
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Founders in the late eighteenth century on the need to regulate the conduct of
individuals and organizations entrusted with military authority. To modem
eyes, the customary rapine and pillaging of the Middle Ages is simply
appalling. In sharp contrast, most of us give deference-which is not to say
obeisance-to the Founders' thoughts on regulating governmental power. In
addition, the privateering model is intrinsically more apropos than the
Middle Ages' free company model, because seagoing privateers routinely
operated beyond the borders of the country that commissioned them. When
the new corporate warriors act within United States territory, they are
comprehensively regulated by state and federal law. Like with privateering,
today's regulatory lacunae are abroad.
Our Founders understood the positive value of privateering. A major
objective of maritime war has always been the capture, destruction, or
disruption of the enemy's commercial shipping, and eighteenth-century
maritime nations used a system of prize money to encourage attacks on
enemy commerce. Captured ships, which were called prizes, would be sold,
and a substantial portion of the proceeds would be distributed to the
capturing crew.3 1 In addition to encouraging and rewarding the crews of
regular navy ships with prize money, governments also opened the prize
system to private commerce raiders who operated for profit.
The practice of privateering required adventurers to refit small, fast
merchant vessels at their own expense. 32 The owner of a privateer also would
have to hire a large complement of sailors. The crew of a two-masted
schooner operating in a commercial mode would seldom exceed six men, but
the same ship converted to a privateer usually would carry a crew of forty or
fifty men.33 These extra hands made the schooner easier to sail and were
especially useful when attacking another ship. In addition, after capturing an
enemy ship, members of the privateer's crew would have to be transferred to
the captured ship to serve as a prize crew. A privateer's oversized crew made
it possible to dispatch a number of prizes into port without seriously
affecting the privateer's ability to continue cruising.
Privateering enabled countries to maintain relatively small navies during
peacetime, but with the onset of war, a flotilla of commerce raiders could be
launched with the stroke of a pen. In exchange for a privateering
commission, merchant adventurers would assume the capital costs of
31. See WiLLIAM R. CAsTO, FOREIGN AFFAIRS AND THE CONSTrruTION IN THE AGE OF
FIGHnNG SAIL 37-38 (2006) [hereinafter CASTO, FOREIGN AFFAIRS].
32. Id. at 43-44.
33. Id. at 43, 46.
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obtaining and refitting a suitable vessel and the expenses of crewing and
operating the vessel. These costs and expenses were not defrayed from the
national treasury. Instead, privateers had to recoup their investments from the
sale of prizes taken from the enemy.
All eighteenth-century western European nations used privateers, but
there nevertheless was a general agreement that privateers were not entirely
trustworthy. Unlike regular navy units, they were not subject to military
discipline, and they had to recoup all of their capital costs and operating
expenses from the sale of prizes. Privateers were rational wealth-maximizers.
Their profit motive rendered them inherently unreliable for the
accomplishment of missions that had no clear prospect of profit.34
Moreover, if left unchecked, their thirst for wealth could lead to appalling
abuse. Our Founders had few illusions about the nobility of the privateering
trade. Justice William Paterson of the United States Supreme Court bluntly
recognized that privateering "is a sort of licensed depredation .... Activated
by a predatory spirit, how often do privateers perpetrate outrages, that shock
the moral sense, and disgrace the human character., 35 Another federal judge
explained that privateers are "activated by a spirit of lucre, which not only
incites to plunder the base and lawless freebooter, but tarnishes even
heroism, by seducing into unjustifiable actions the bravest men."36
Our Founders fully understood the need for regulating privateers and
created a comprehensive system of overlapping controls designed
specifically to check inevitable abuses. The primary control was the prize
court system. To turn a profit, a privateer had to be able to sell the enemy
ships that it captured, and there was a strong tradition that ships could not be
sold unless they were first condemned by a prize court as a lawful prize. A
knowledgeable English admiralty judge37 noted that it is not "thought fit, in
civilized society, that property of this sort should be converted without the
sentence of a competent Court., 38 As a practical matter, privateers were
forced to validate their seizures with a judicial condemnation because "no
34. See FORESTER, supra note 29, at 92-96.
35. Unpublished Opinion of Justice Paterson, at 7, preparedfor Del Col v. Arnold, 3
U.S. (3 Dall.) 333 (1796), quoted in Casto, Origins of FederalAdmiralty Jurisdiction,supra
note 30, at 124.
36. Findlay v. The William, 9 F. Cas. 57, 59 (D. Pa. 1793) (No. 4790).
37. See HENRY BOURGUIGNON, SIR WILLIAM Scolr, LORD STOWELL: JUDGE OF THE HIGH
COURT OF ADMIRALTY 1798-1828 (1987).
38. The Hendrick and Maria, (1799) 165 Eng. Rep. 529, 533 (P.C.) (appeal taken from
admiralty court).
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man buys under that title [based on mere seizure]; he requires a sentence of
condemnation, as the foundation of the title of the seller."' 9
Although establishing marketable title was important, that was not the
only purpose of the condemnation proceedings. One of the United States'
leading admiralty judges explained, "The intervention of a court of admiralty
of the captor is made necessary, not to give validity to the capture but to
inquire into the circumstances, and give the captor his reward .... and the
court will not vest it in him if the capture is improperly made., 40 This
engrained practice of condemnation assured that privateers' conduct was
routinely subject to judicial review. In seeking a judicial condemnation of a
prize, a privateer was required to go to a prize court of the country that
issued the privateer's commission. The proceedings might be ex parte or
inter partes, but in either event, the prize judge was required to render an
independent review of the privateer's conduct in taking the prize. Thus,
privateers' conduct that generated revenue was always subject to
independent review of the conduct's propriety. This system of independent
review created a significant practical constraint upon misconduct.
In addition to independent review by a prize court, privateers'
misconduct was subject to criminal prosecution. In truth, privateers looked a
lot like pirates. Both privateers and pirates roamed the seas attacking
merchant vessels for private gain. Indeed, many of the most famous pirates
of the eighteenth century began their careers as privateers with formal
government commissions.4 1 When Captain William Kidd sailed the Indian
Ocean, he had a privateer's commission. 42 Eventually, however, the British
hanged him for exceeding his commission.43 Similarly, Blackbeard the pirate
was at one time a British privateer. 44
Prize judges and prosecutors were not the only monitors of privateers'
misconduct. Private persons who were injured by privateers were also
empowered to participate in and even initiate regulatory proceedings.
Condemnation proceedings in prize courts were not necessarily ex parte. If a
39. Id.
40. Moxon v. The Fanny, 17 F. Cas. 942, 946 (D. Pa. 1793) (No. 9895); accordCARL J.
KULSRUD, MARITIME NEUTRALITY TO 1780: A HISTORY OF THE MAIN PRINCIPLES GOVERNING
NEUTRALITY AND BELLIGERENCY TO 1780, at 42 (1936) ("[T]he purpose of the prize court...
was to free ships and cargoes unjustly seized, to condemn others as good prize, and to hold the
privateer responsible for unlawful captures.").
41. ROBERT C. RITCHIE, CAPTAIN KrDD AND THE WAR AGAINST THE PIRATES, at v (1986).
42. Id. at 52-55.
43. Id. at 206-27 (describing the political forces at play in Kidd's trial).
44. See LINDLEY S. BuTLER, PIRATES, PRIVATEERS, & REBEL RAIDERS ON THE CAROLINA
COAST 32 (2000).
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ship was improperly seized, the owner or his representative could intervene
in the condemnation and directly challenge the lawfulness of the seizure. In
addition, before or after a condemnation, a ship owner could initiate a suit in
admiralty for restitution of an unlawfully seized ship.45
The essence of the practice of privateering was to license private
businessmen to conduct military missions abroad for profit. These venture
capitalists-like the regular Navy-exercised military powers overseas under
the express, public authority of the United States. Like the Navy, they
represented and acted for our nation overseas; but unlike the Navy, their
actions were not principally motivated by a desire to serve the national
interest. Privateers waged war for profit. They were rational wealth
maximizers. Now, the United States is turning once more to outsourcing
military missions to venture capitalists. Like the old privateers, PMFs are
private businesses organized to wage war for profit. PMFs are the new
privateers of the twenty-first century.
I. THE ABSENCE OF REGULATION
Like the old privateers, the new privateers are cloaked with military
powers and represent the United States overseas. But we have forgotten the
Founders' wisdom and understanding regarding the special need to regulate
those who wage war for profit. The Founders created a comprehensive
apparatus of independent and overlapping regulatory systems, but there is no
comprehensive regulatory regime for the new privateers.
It might be argued that the method of payment for today's PMFs is less
likely to result in overreaching abuse. The old privateers' revenue streams
came solely from the seizure and sale of enemy shipping. 46 More seizures
generated more revenue; less created less. This simple economic calculus
standing alone undoubtedly would have encouraged privateers to seize ships
unlawfully, and a counterbalancing system of regulation-particularly the
requirement of condemnation-was therefore necessary. In contrast, the new
privateers' revenue streams are not linked directly to the amount of property
seized. Therefore, it might be argued that there is less need for a
comprehensive regulation.
Although the new privateers do not operate under precisely the same
economic calculus as their eighteenth-century predecessors, this difference
45. See Glass v. The Betsy, 3 U.S. (3 Dali.) 6 (1794), discussed in
THE SUPREME COURT IN THE EARLY REPUBLIC 82-87 (1995).
46. See supra notes 37-40 and accompanying text.
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R. CASTO,
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does not mean that there is less need for regulation. As a practical matter, the
older system of privateering generated more significant self-regulation than
does today's practice. Maritime privateering used a highly centralized
command and control system. All the employees were in a single, quite small
ship, and within the narrow confines of that ship, they were subject to the
direct command and control of their captain. The maritime tradition of a
captain's control over his crew is similar to the rigid system of discipline
found in military establishments. A privateer captain's principle motivation
was to generate lawful seizures, and abuses by his crew could complicate the
condemnation of a prize. Therefore, the economics of greed or wealth
maximization directly encouraged privateer captains to maintain effective
control over their crew's actions.
In contrast, the new privateers generally operate on land, and corporate
employees may be spread out over vast geographic expanses. Unlike the
crews of the old privateers who operated within the narrow confines of their
small ships, the new privateers are not really subject to the immediate and
direct control of their supervisors. Moreover, the payment system for the new
privateers does not encourage supervisors to prevent employees from
abusing their authority. Unlike under the old system of privateering, the
revenue streams of the new corporate privateers are not necessarily impeded
by abusive misconduct. If anything, the47new privateers' profit motive may
encourage them to cover up misconduct.
Of course, the employees of the new corporate privateers tend to be
reasonably conscientious and reasonably law-abiding people. But some are
not, and their inevitable misconduct gives rise to a need for regulatory
controls. Some of this misconduct is intended to further the corporate
mission, 48 and some is not. 49 In either event, there is a need for regulation.
Frequently, however, the new privateers are not subject to any significant
regulatory control when they operate outside the United States.
Most of the impediments to regulating the new privateers' overseas
activities stem from the ancient concept of territoriality. As nation states
emerged at the dawn of the modem era of western civilization, a
corresponding consensus emerged that activities should be regulated by the
47. In one case, when a PMF employee complained to the PMF about other employees'
engagement in despicable misconduct, the employer promptly fired the whistleblower. See
supra note 14 and accompanying text. In another case, a PMF employee in Afghanistan who
apparently killed his interpreter was quickly transferred out of the country. See infra note 58
and accompanying text.
48. See supra notes 13-15 and accompanying text.
49. See supra note 16 and accompanying text.
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law of the country in which the activity takes place. In 1689, Ulrich Huber,
the father of post-medieval choice-of-law doctrine, explained that "[tihe laws
of each state have force within the limits of that government and bind all
subject to it, but not beyond." 50 We inherited this principle of territoriality
from our European ancestors. French law regulates conduct in France;
English law regulates conduct in England; and American law regulates
conduct in America.
Under the principle of territoriality, when corporate warriors act within
the United States, they are subject to regulation by state and federal law, but
when they act within another country, regulation is left to the laws of that
foreign country. This principle makes a good deal of practical sense, and that
is why it has endured for centuries. But there have always been exceptions.
The broad expanses of the globe encompassed by the oceans are not within
any country's territory. Rather than leave maritime activities unregulated,
there has always been a consensus that any country may regulate activities at
sea. In addition, a country may, if it wishes, regulate "the activities, interests,5
status, or relations of its nationals outside as well as within its territory." '
Therefore, if Congress wishes, it may properly regulate extraterritorial
conduct that falls within this and other 52 exceptions. Nevertheless, the
principle of territoriality holds powerful sway, and there "is a long-standing
principle of American law that legislation of Congress, unless a contrary
intent appears, is meant to apply only within the territorial jurisdiction of the
United States. ' 3
In theory, all Americans, including corporate warriors, who go abroad
are subject to regulation by the country where they temporarily reside. As
Huber explained over three-hundred years ago, "All persons within the limits
of a government, whether they live there permanently or temporarily, are
deemed to be subjects thereof."54 The practice, however, may be quite
different. The experience of regulating civilians who accompany American
50. Ulrich Huber, De Conflictus Legum Diversarum in Diversis Imperiis (1689), quoted
in
DAVID P. CURRIE ET AL., CONFLICT OF LAWS 3 (6th ed. 2001) [hereinafter CURRIE ET AL.,
CONFLICT OF LAWS].
51. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402(2) (1987).
52. Under the protective principle, a country may "punish a limited number of offenses
directed against the security of the state or other offenses threatening the integrity of
governmental functions." Id. § 402 cmt. f. In addition, under the passive personality principle,
there is a limited and controversial power to regulate extraterritorial attacks directed against a
country's nationals who are outside the regulating country. See id. § 402 cmt. g.
53. EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (internal quotation marks
omitted) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)).
54. CURRIE ET AL., CONFLICT OF LAWS, supra note 50, at 3.
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Armed Forces overseas is instructive. For decades there was a scandalous
regulatory gap. Like the new privateers, the vast majority of Americans
accompanying the Armed Forces overseas are reasonably law-abiding and
reasonably conscientious people, but some are not. In the past, there were
incidents in which American civilians accompanying the Armed Forces
committed homicide, rape, sexual molestation, and other serious crimes
overseas-all in direct contravention of the applicable foreign laws.
Foreign prosecutors, however, frequently were reluctant to prosecute,
especially when the victims of this heinous misconduct were themselves
American citizens.56
The same regulatory gap has arisen in respect of the new privateers. In
the abyss that became the former Yugoslavia, some American corporate
warriors who engaged in appalling misconduct were never prosecuted.57
More recently, an American security supervisor killed his interpreter in
Afghanistan, and his PMF employer barred Afghan police from investigating
the death. Now, the American has left the country, and his employer has
declined comment.5 8
As these anecdotes graphically illustrate, the principle of territoriality
only works if there is effective enforcement of the laws of the country where
the individual acts. In the case of the new privateers, there is significant
potential for an enforcement gap to emerge. A foreign country may have a
reasonably effective system of laws, but the government may, as a matter of
discretion, decline to enforce those laws. An enforcement gap may also
emerge if an American corporate warrior injures a foreign citizen who is a
member of a class disfavored by the pertinent foreign government. An
55. See Military ExtraterritorialJurisdictionAct of 1999: Hearing on H.R. 3380 Before
the Subcomm. on Crime of the H. Comm. on the Judiciary, 106th Cong. 16-17 (2000)
[hereinafter Hearing on H.R. 3380] (statement of Robert E. Reed, Assoc. Deputy Gen.
Counsel, U.S. Dep't of Def.); id. at 19-20 (statement of Brigadier Gen. Joseph R. Barnes,
Assistant Judge Advocate Gen., U.S. Army); see also id. at 2 (statement of Rep. Steve Chabot,
Acting Chairman, H. Subcomm. on Crime) ("[E]ach year incidents of rape, sexual abuse,
aggravated assault, robbery, drug distribution, and a variety of fraud and property crimes
committed by American citizens abroad go unpunished.").
56. "[O]ften the host nation is not interested in prosecuting criminal offenses committed
by U.S. civilians-particularly when the victim is not a citizen of the host nation." Id. at 17
(statement of Robert E. Reed); accord id. at 19 (statement of Brigadier Gen. Joseph R.
Barnes).
57. See supra notes 13-15 and accompanying text.
58. See FT. WORTH STAR-TELEGRAM, Oct. 2, 2005, § A; FT. WORTH STAR-TELEGRAM,
Oct. 1, 2005, § A.
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equally serious enforcement gap will emerge when American corporate
warriors operate in a foreign land that has no effective system of laws.
IV. REGULATORY OPTIONS
Eighteenth-century privateers were subject to a comprehensive system of
regulation, and their modem-day counterparts should be similarly regulated.
The old privateers' receipt of compensation was conditioned on their having
acted appropriately. Moreover, they were subject to private suit by victims of
their misconduct. Finally, privateers were subject to criminal law. This same
three-tiered system that our Founders created should be used to regulate the
new privateers.
A. CriminalLaw
Although the principle of territoriality has impeded the application of
United States criminal law to overseas activities, the principle clearly is not
an absolute bar to applying United States law extraterritorially. In 2000,
Congress formally recognized the need to extend federal criminal law to
civilian employees and contractors of the Department of Defense ("DoD")
and enacted the Military Extraterritorial Jurisdiction Act of 2000
("MEJA").5 9 The Act applied to DoD civilian employees and contractors,
and the employees of DoD contractors, 6° and criminalized acts committed by
these persons abroad if their conduct would be a felony under federal law if
committed within the United States. MEJA's primary purpose was to
criminalize the misconduct of American civilians associated with the Armed
Forces in countries like Germany and Japan. The drafters also understood
that the problem experienced in countries with functioning governments "has
been compounded in recent years by the increasing involvement of our
military in areas of the world where there is no functioning government, such
as Somalia, Haiti, and the Balkans.",61 Although the statute was a valuable
extension of federal criminal law, it only coincidentally addressed the
problem of corporate warriors 62 and therefore contained enormous gaps in
coverage. Corporate warriors who are hired by an arm of the federal
59.
60.
61.
62.
Schmitt,
Pub. L. No. 106-523, 114 Stat. 2488 (codified at 18 U.S.C. §§ 3261-3267 (2000)).
Id. § 3267.
Hearing on H.R. 3380, supra note 55, at 2 (statement of Rep. Steve Chabot).
For excellent analyses of the original Act and its recent amendment, see generally
Closing the Gap, supra note 9, and Schmitt, Amending MEJA, supra note 16.
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government other than the DoD, or by a private company or a foreign
government, were not covered.63
The gap in MEJA's coverage was dramatically illustrated by the
disgraceful abuse and torture of prisoners at the Abu Ghraib prison. 64 Some
of the American participants were PMF employees of CACI International
Inc., which was hired by the government to assist in prisoner interrogations.
The Department of Defense contracted with CACI in March, 2000,65 and
when MEJA was enacted nine months later in November, 2000, 66 CACI
employees became subject to MEJA. Shortly thereafter, however, the CACI
contract was transferred from the Department of Defense to the Department
of the Interior ("DOn").67 When the Abu Ghraib scandal erupted in early
2004, Attorney General Ashcroft initially announced that the Department of
Justice was considering a criminal prosecution against the CACI employees,
but he discovered that there were no applicable American criminal laws. 68 If
the CACI contract had remained with the DoD, MEJA would have applied,
but the switch to the DOI effectively exempted the employees from
prosecution. The timing of the contract's transfer from the DoD to the DOI
suggests that a purpose of the transfer may have been to avoid MEJA's
criminal sanctions.6 9
In 2004, apparently in response to the Abu Ghraib scandal,7 ° Congress
expanded MEJA's scope beyond DoD contractors to regulate PMCs hired by
federal agencies and departments other than the DoD.71 Unfortunately, gaps
and ambiguities in the amended statute significantly restrict its value.
Congress was aware of the fact that PMCs are routinely hired by various
federal agencies and departments but restricted the amendment's expansion
63. The statute did, however, apply to subcontractors of DoD contractors. See 18 U.S.C.
§ 3267.
64. See supra note 16 and accompanying text.
65. See Letter from Dep't of Interior, Nat'l Bus. Ctr. Acquisition Servs. Ctr. to Office of
the Special U.S. Liaison Officer, London, England, at 85 (Sept. 24, 2003) [hereinafter DOI
Letter], available at http://www.publicintegrity.org/docs/wow/CACI ordersAll.pdf.
66. The Act was enacted on November 22, 2000. See Pub. L. No. 106-523, 114 Stat.
2488.
67. See DOI Letter, supra note 65.
68. See Schmitt, Amending MEJA, supra note 16, at 42.
69. One wonders why the DOI would be interested in hiring a PMF to interrogate
prisoners in Iraq. The DOI claimed that the contract transfer would "reduce acquisition costs
and procurement time." See DO! Letter,supra note 65.
70. See Schmitt, Amending MEJA, supra note 16, at 42-43.
71. See Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005,
Pub. L. No. 108-375, 118 Stat. 1811 (2004) (to be codified at 18 U.S.C. § 3267(1)(A) (2006))
[hereinafter Reagan Defense Act]; see also Schmitt, Amending MEJA, supra note 16, at 42-43.
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to employees, contractors, and subcontractors of "any other Federal agency,
or any provisional authority, to the extent such employment relates to
supporting the mission of the Department of Defense overseas. 72
No one knows what the amendment's reference to "any provisional
authority" means. 73 More significantly, the requirement that non-DoD
contractors' "employment relates to supporting the mission of the
Department of Defense overseas" 74 is bound to be significant. An argument
has already been made that a "reasonable interpretation" of this language
would be that the amendment only applies "when a person's activities have,
as their principal purpose, the intent to assist the mission of the DoD. 75
Even when the statute is clearly applicable, pragmatic considerations will
hamper prosecutions. The cases are tried in federal district court, 7766 and some
in the military believe that problems of proof will discourage United States
Attorneys from seeking indictments.77
The statute clearly does not apply to PMFs hired to conduct operations
that have no obvious relationship to the DoD. For example, the Department
of State's anti-narcotics section has paid PMFs well over one billion dollars
to assist in suppressing cocaine production and exportation in Colombia, and
a number of PMF employees have been killed there in combat.78 More
recently, the State Department awarded five-year contracts to PMFs worth as
much as one billion dollars for world-wide security services, including
"armed, qualified protective services details [and] . . . Counter Assault
Teams and Long Range Defense Marksmen teams. 79
Some are concerned that Congress's constitutional authority to
criminalize activities outside the United States is somewhat limited. In
particular, there is a concern that while Congress has plenary power to
72. Reagan Defense Act § 1088, 118 Stat. at 2066 (to be codified at 18 U.S.C. §
3267(1)(A)(i)(II)).
73. See Schmitt, Amending MEJA, supra note 16, at 45-46.
74. Reagan Defense Act § 1088, 118 Stat. at 2066 (to be codified at 18 U.S.C. §
3267(1)(A)(iii)(H)).
75. Schmitt, Amending MEJA, supra note 16, at 44-45.
76. 18 U.S.C. § 3262 (2000).
77. Lisa L. Turner & Lynn G. Norton, Civiliansat the Tip of the Spear, 51 A.F. L. REV.
1, 39 n.234 (2001) (noting the impracticability of bringing witnesses to the United States from
overseas and the federal court's lack of subpoena power over foreign witnesses).
78. See SINGER, supra note 1, at 208; Michaels, supra note 1, at 1024-26. As part of this
mission, PMFs mistakenly ordered a plane carrying American missionaries to be shot down.
Leslie Wayne, America's For-ProfitSecretArmy, N.Y. TIMES, Oct. 13, 2002, at C 1.
79. Renae Merle, Embassy Security Firms Chosen, WASH. POST, June 12, 2005, at D4
(internal quotation marks omitted).
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regulate the Armed Forces and its contractors overseas, legislative authority
under the Constitution may not extend to overseas activities not significantly
related to the projection of military force. 80 This worry. should be dismissed
as unsubstantial. The territoriality principle should not be converted into a
rule of constitutional law. The government obviously has constitutional
authority to contract for the provision of services overseas. Surely the
Necessary-and-Proper Clause 81 authorizes the government to regulate the
conduct of these agents when they are acting for the government overseas.
The Constitution's Foreign Commerce Clause 82 and the federal government's
implicit constitutional power over foreign relations surely authorize
Congress to regulate the extraterritorial conduct of persons hired to perform
services for the United States overseas.83 Clearly, some branch of American
government must have power to regulate the conduct of Americans overseas.
If the federal government lacks this power, our system of federalism vests
the power in the various states.
B. Tort Remedies
Private tort remedies have always gone hand in glove with public
criminal law. 84 If criminal conduct directly injures a private individual, it is
inconceivable that the malefactor would not be subject to liability under tort
law. Tort law is an outgrowth of criminal law 85 but is significantly different.
In a sense, tort plaintiffs serve as private attorneys general. For various
reasons, a prosecutor may be unwilling to prosecute conduct that appears
criminal. Certainly, in some situations, foreign prosecutors have been
notoriously uninterested in prosecuting Americans. Moreover, if a
wrongdoer has fled a foreign country, a criminal prosecution in that country
would require cumbersome extradition proceedings. In such a case, the
private citizen who has suffered harm might commence a tort action. More
80. See Schmitt, Amending MEJA, supra note 16, at 42-46; see also Michaels, supra
note 1, at 1090, 1123-24.
81. U.S. CONST. art. I, § 8, cl. 18.
82. Id. art L., § 8, cl. 3.
83. See Louis HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 70-72
(2d ed. 1996) (discussing the foreign affairs power). This analysis is bolstered by the
unanimous world-wide agreement that every country has legislative authority to regulate its
own citizens' extraterritorial conduct. See supra note 51 and accompanying text.
84. See William R. Casto, The New Federal Common Law of Tort Remedies for
Violations of InternationalLaw, 37 RUTGERS L.J. 635, 651-52 (2006) [hereinafter Casto, The
New Federal Common Law].
85. See DAN B. DOBBS, THE LAW OF TORTS 4 (2000).
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significantly, a private tort plaintiff typically has suffered direct injuries that
cannot be remedied by criminal conviction. A criminal prosecution is not
designed to and does not provide compensation to victims.
Given the traditional parallel between criminal law and private tort
remedies, private remedies to regulate the new privateers should be available
as a matter of course. When the old privateers went down to the sea in ships,
the Supreme Court stated as clearly as possible that the victims of privateers'
unlawful misconduct had a private cause of action against the privateers. The
86
Justices were "clearly of opinion" that a private civil remedy was available.
People harmed by the new privateers' unlawful misconduct also should have
a private tort remedy, and there are three possible sources. Under the
principle of territoriality, the local tort law of the country where the
misconduct takes place may provide a basis for a claim. In addition,
contemporary American choice-of-law principles may lead to the application
of American tort law to overseas misconduct by Americans. Finally, a
federal common law remedy for violation of international law will be
available in some cases.
1. Traditional Tort Claims
If a simple tort action is filed in an American court, the court's choiceof-law principles usually will direct the court to the tort law of the place
where the alleged tort took place. Thus, in actions for personal injury, the
Restatement directs a court to the "law of the state where the injury occurred
unless . . .some other state has a more significant relationship . . .to the
occurrence and the parties. ' 7 This approach is readily recognizable as a
version of the old principle of territoriality.
a. Foreign Tort Law
A choice-of-law solution based upon the territoriality principle, however,
can present serious problems for a plaintiff. For example, suppose an
American contractor injured an individual in Iraq during the first year after
Saddam Hussein's dictatorship was toppled. If the injured party subsequently
sued the contractor in an American court, how would the court determine the
86. Glass v. The Sloop Betsy, 3 U.S. (3 Dall.) 6, 6 (1794), discussed in CASTO, supra
note 45, at 82-87.
87.
RESTATEMENT
(SECOND)
OF CONFLICT
OF
LAWS
§
RESTATEMENT (SECOND) OF CONFLICT].
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146 (1971)
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689
content of Iraqi law? 88 This could prove to be an insurmountable task and
might result in a dismissal of the claim without reaching the claim's merits.
In a well known case, a tort action arising out of wrongful conduct in Saudi
Arabia was filed in an American court.8 9 The court assumed that Saudi
Arabia law governed the claim9 ° and dismissed the case because the plaintiff
could not establish the details of Saudi negligence law. 9' The applicable
Saudi rules of decision evidently were a mystery to both the plaintiff and the
defendant, so the plaintiff, who had the burden of proof, lost.
Many other courts have taken a significantly different approach to the
problem of determining the content of foreign law. Rather than require the
plaintiff to prove the content of foreign law, these other courts presume that
foreign law is the same as forum state law and place the burden of proof on
any party that contends to the contrary.92 This approach tends to assure just
results but is a transparent legal fiction that can lead to strange
pronouncements regarding the laws of foreign countries. Thus, one court
presumed that Chinese marital property law is the same as California law.93
Another court refused to presume that Turkey had a workers' compensation
statute replicating American law but did presume that Turkey had a system
of negligence liability much like the American system.94 Notwithstanding,
these superficially strange pronouncements, the presumption that American
law replicates foreign law is better than the rule that places the burden of
proof on the plaintiff. By definition, an American court believes that
88. See generally id. § 136; EUGENE F. ScOLES ET AL., CONFLICT OF LAWS §§ 12.1512.19 (3d ed. 2000).
89. See Walton v. Arabian Am. Oil Co., 223 F.2d 541 (2d Cir. 1956).
90. The court believed that applicable choice-of-law rules precluded application of
American tort law. Id. at 543. Today, an American court might apply American tort law in this
situation. See Wilcox v. Wilcox, 133 N.W.2d 408, 410 (Wis. 1965) (rejecting Walton);
ScoLEs Er AL., supra note 88, § 12.19 n.14.
91. Walton, 223 F.2d at 546 (dismissing a tort claim for failure to prove the content of
Saudi Arabian tort law).
92. See Scot.Es ET AL., supra note 88, § 12.19 (discussing variations of this approach);
see also RESTATEMENT (SECOND) OF CONFLICT, supra note 87, § 136 cmt. h; ROBERT A.
LEFLAR, AMERICAN CONFLICTS LAW 357-59 (4th ed. 1986).
93. Louknitsky v. Louknitsky, 266 P.2d 910, 113 (Cal. 1954). Similarly, in Gemstar
Ltd. v. Ernst & Young, 917 P.2d 222 (Ariz. 1996), the court indulged a presumption that
Arizona corporate law was the same as British Virgin Islands corporate law. Id. at 229; accord
Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1321-22 (11th Cir. 2004) (equating
Alabama and Cayman Islands law).
94. Tidewater Oil Co. v. Waller, 302 F.2d 638, 642-43 (10th Cir. 1962). In Schreiberv.
Camm, 848 F. Supp. 1170 (D.N.J. 1994), the court presumed that the laws of Jamaica, Florida,
and New Jersey on the vicarious tort liability of a land owner were the same. Id. at 1174. The
land was in Jamaica. Id. at 1171.
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American tort law establishes a fair system of civil justice. If the precise
content of applicable foreign law cannot be established, the presumption of
similarity assures that the case will be resolved fairly. In contrast, the harsh
rule that the plaintiff must prove the unknown content of foreign law
resolves the case without regard to fairness.
b. American Tort Law
In the run-of-the-mill tort case, the principle of territoriality usually
results in selecting foreign tort law to determine whether conduct in a foreign
country is tortious, but foreign law is not invariably selected. Under the
Restatement (Second) of Conflict of Laws, the general rule of territoriality
may be overridden in a case where another state "has the most significant
relationship to the occurrence and the parties. 95 In tort cases, the state with
the most significant relationship usually is the state where the wrongful act
and resulting injury took place,96 but the citizenship of the plaintiffs and
defendants are also significant. If an American harms another American in a
foreign country, an American court might very well apply American tort law
to the occurrence.97 Indeed, if the particular legal issue involved is a loss
allocation principle rather than a conduct regulating principle,98 American
law should be applied as a matter of course.99 The case for applying
American law where the defendant is an American citizen and the plaintiff is
a foreign national is less clear,1°° but an American state might properly
decide to apply its own law to regulate how its citizens comport themselves
abroad.101
95.
RESTATEMENT (SECOND) OF CONFLICT,supra note 87, § 145(1).
96.
Id. § 145(1) cmt. e; see, e.g., Xuncax v. Gramajo, 886 F. Supp. 162, 195 (D.
Mass. 1995) (applying Guatemalan rather than Massachusetts tort law to a tort action by a
Guatemalan citizen against another Guatemalan citizen). In Xuncax, the court also applied
Guatemalan tort law to a tort claim by an American citizen against a Guatemalan citizen. Id.
97.
See supra note 90 and accompanying text.
98.
See ScoLEs ET AL., supra note 88, §§ 17.36-.47. For example, respondeat
superior is a loss allocation principle that does not directly regulate an employer's conduct.
See infra notes 138-45 and accompanying text. Because employees generally are judgmentproof, ordinary tort doctrine effectively places the loss caused by a tort on the victim.
Respondeatsuperioreffectively allocates the loss to the employer rather than to the victim.
99.
See ScoLEs ET AL., supra note 88, § 17.39. Of special significance is the
"common country rule." Id.
100. See id. §§ 17.41-.47 (discussing loss allocation rules); id. §§ 17.48-.50
(discussing conduct regulation rules).
101.
Given the defendant's domicile, there is no constitutional impediment to choosing
American tort law. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822-23 (1985); Allstate
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The case for applying American tort law to the wrongful conduct of
Americans abroad is strongest when the misconduct is patently improper and
the content of the foreign country's law cannot be identified. For example,
suppose American employees of a PMF engage in slavery, rape, and other
sex crimes in a foreign country. 10 2 These activities would be tortious under
American law and also presumably under the comparable law of the foreign
country. Until contrary proof is available, we may reasonably presume that
any country's policy is to provide a remedy for such obviously wrongful
behavior. In other words, the lawmakers in the other country would probably
prefer to provide a victim with a remedy under American law rather than no
remedy at all. This realistic commonsense analysis seems preferable10 3to the
blatant legal fiction that the foreign law is the same as American law.
The strongest case for applying American tort law arises when the new
privateers operate in geographic areas where, as a practical matter, there is
no government at all. Consider again the hypothetical tort in Iraq following
the fall of Saddam Hussein. 1' 4 In what sense can it be said that any Iraqi tort
law existed? In theory, one might argue that the old law continued
notwithstanding the complete disappearance of any semblance of
government, but this legal fiction would not comport with reality. Moreover,
the keystone of the principle of territoriality is a fundamental assumption that
territories should be regulated by their own government and not by foreign
governments. The principle makes no sense whatsoever when a territory has
no functioning government.
A hundred years ago when the territoriality principle was at the height of
its influence, the Supreme Court recognized that sometimes a court should
apply forum state law to the overseas conduct of forum state citizens:
No doubt in regions subject to no sovereign, like the high seas, or to no law
that civilized countries would recognize as adequate, such countries may
treat some relations between their citizens as governed by their own law, and
05
keep to some extent the old notion of personal sovereignty alive.
Ins. Co. v. Hague, 449 U.S. 302, 320 (1981). Because the choice is between American law
and the law of a foreign country, there is no Full Faith and Credit Clause problem. See id.
102. See supra notes 13-15 and accompanying text.
103. See ScoLES Er AL., supra note 88, § 12.19.
104. See supra note 88 and accompanying text.
105. Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909); see also Cuba
R.R. Co. v. Crosby, 222 U.S. 473,478 (1912).
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The high seas, of course, were the most common area subject to no
sovereign, and the regulation of privateering in the eighteenth century was a
classic example of sovereigns regulating their subjects' or citizens'
extraterritorial activities.106
The new privateers of the twenty-first century operate on land, but
sometimes the regions where they operate are without a meaningful
sovereign. A century ago, the traditional approach to this problem was to
allow an extraterritorial application of forum state law. The Supreme Court
has recognized this approach in dicta as recently as 1968107 but has seldom, if
ever, encountered the issue. The British courts, however, did. The principle
of territoriality held full sway in Great Britain, but the British courts were
clear that British tort law could be extended to regulate the activities of
British citizens abroad. 10 8 A.V. Dicey, the leading English conflicts scholar
of those times, specifically addressed the issue of what law "governs
transactions taking place in an uncivilized country, e.g., in Afghanistan."' 1 9
Reasoning from British case law, Dicey concluded that in a tort action
arising from misconduct "in a barbarous country, the character of the act
cannot depend upon the law of the country where it is done."" t0 In such
cases, English tort law would govern the action if the plaintiff and defendant
were English."' He also believed that English tort law would govern a suit
between an Englishman and a German arising out of conduct in a lawless
region.' 2
Dicey's notion that some countries are civilized and others are not reeks
of early twentieth-century racism and imperialism1 13 and should be accorded
106. See supra notes 34-44 and accompanying text.
107. See Zschering v. Miller, 389 U.S. 429, 462 (1968); see also supra note 105 and
accompanying text.
108.
See A.V. DICEY & A. KErTH, A DIGEST OF THE LAW OF ENGLAND WITH REFERENCE
TO THE CONFLICT OF LAWS 699, 781-84 (3d ed. 1922).
109. Id. at 781.
110. Id. at 783.
111. Id. ("[Tihe act is probably wrongful and actionable in England, if it would have
been tortuous if done in England.").
112. Id. at 783-84.
113. He defined civilized states as "including any of the Christian States of Europe, as
well as any country colonized or governed by such European State, at least in so far as it is
governed on the principle recognized by the Christian States of Europe." Id. at 30. In his
mind, uncivilized states included Turkey, China, "the Territory of Utah" (apparently before it
joined the United States), "Bechuanaland Afghanistan, and Thibet." Id. at 30-31, 781.
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little weight today. 114 But his more general insight that there may be lands
where no sovereign provides an effective or recognizable system of laws
remains valuable. In that situation, he believed that a country should apply its
tort law extraterritorially to regulate the conduct of its citizens in the
ungoverned lands. An American court might use the same insight to extend
American tort law extraterritorially. In particular, if a tort action arising from
misconduct in a failed state is filed in an American defendant's state of
domicile, the forum court should routinely apply its own tort law. This same
insight led Congress in the Military Extraterritorial Act to extend the reach of
federal criminal law to "areas of the world where there is no functioning
government."',15
The principle of territoriality does not work in the case of a failed state
because as a practical matter, there is no effective system of local laws in
place to regulate conduct. In choosing one state's law over another's, courts
are supposed to consider the "needs of the . . . international systems" and
therefore "have regard for the needs and policies of other states and of the
community of states."" 6 In the failed-state situation, the needs and policies
of the area where misconduct occurs and of the community of states are to
have an effective system of laws regulating conduct. By applying forum state
law, the American court would fulfill those needs and policies.
Perhaps the most important consideration in tort cases is to recognize a
state's interest in regulating harmful conduct within its territory. A forum
court in the United States should balance the relative interests of the various
interested states and apply the local law of "the state whose interests are most
deeply affected." ' 1 7 But to repeat, there is no government in a failed state to
formulate policies. If there were a government, we may reasonably assume
that it would be interested in having some system of laws applied to regulate
harmful conduct in its territory. The absence of an effective foreign legal
system coupled with the reasonable presumption that any state would want
there to be effective laws regulating wrongful conduct weighs heavily in
deciding that applying American forum state law would not override the
interests of any state.
Various other factors operate in much the same way to commend the
application of American forum tort law to the failed-state paradigm. There
114.
See, e.g., Walton v. Arabian Am. Oil Co., 233 F.2d 541, 545 (2d Cir. 1956)
(rejecting the contention that Saudi Arabia is uncivilized); Allianz V.-A. Munich Reins. Co. v.
S.S. Eskiseher, 353 F. Supp. 84, 85 (S.D.N.Y. 1972) (discussing Turkish law).
115. See supranote 61 and accompanying text.
116. RESTATEMENT (SECOND) OF CONFLICT, supra note 87, § 6(2)(a) cmt. d.
117. Id. § 6(2)(c) cmt. f.
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can be no justified expectation that a theoretically existing but practically
nonexistent law of a failed state will apply. 1 8 The basic policies underlying
the field of tort law, which are to deter misconduct and to compensate for
injuries caused by misconduct, favor applying forum law. " 9 Needless to say,
"ease in the determination and application of the law to be applied" will be
20
best served by selecting forum state law.1
2. The Alien Tort Statute
In some cases involving PMF misconduct, the federal courts will have
jurisdiction under the Alien Tort Statute ("ATS") to provide a supplemental
tort remedy for violations of international law.12 ' Although Congress
originally enacted the ATS as part of the Judiciary Act of 1789,127the
Supreme Court did not render an authoritative opinion on the Act until its
2004 decision in Sosa v. Alvarez-Machain. 23 This decision is a watershed,
and all analyses of ATS litigation must now flow from the Sosa
guidelines. 24 The Court began by unanimously holding that the ATS vests
the federal courts with subject matter jurisdiction but does not create a
statutory cause of action. 125 The Court then explained that the tort cause of
action-or at least the remedy-for
violations of international law comes
26
law.
common
federal
from
118. Id. § 6(2)(d).
119. Id. § 6(2)(e). A central policy of tort law is to provide compensation and
deterrence regarding some forms of misconduct. Unless forum law is applied, there will be no
tort compensation or deterrence for any misconduct whatsoever in the territory of the failed
state.
120. Id. § 6(2)(g).
121. 28 U.S.C. § 1350 (2000). State trial courts with general jurisdiction would also
have power to adjudicate this federal cause of action. Indeed, under the Constitution, they are
so required.
122. The Judiciary Act of 1789, 1 Stat. 73 (codified at 28 U.S.C. § 1350).
123. 542 U.S. 692, 697 (2004). One of the leading pre-Sosa analyses of the ATS was
my article, William R. Casto, The Federal Courts' Protective Jurisdiction over Torts
Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467 (1986) [hereinafter
Casto, Law of Nations], which the Justices in Sosa cited and relied upon six times. 542 U.S. at
713, 717, 718, 719 n.13, 721; id. at 743 (Scalia, J., concurring).
124. For a general exploration of Sosa's import, see Casto, The New Federal Common
Law, supra note 84.
125. 542 U.S. at 713 (quoting Casto, Law of Nations, supra note 123, at 479-80);
accord id. at 743 (Scalia, J., concurring).
126. Id. at 724-31 (majority opinion). See generally Casto, The New Federal Common
Law, supra note 84, at 639-45.
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The Court in Sosa went on to provide the lower federal courts with a
number of guidelines for shaping this new federal common law cause of
action. These guidelines draw a sharp distinction between the norms for
which a tort remedy is provided and the multitude of other legal issues that
arise in tort litigation. All tort plaintiffs must prove that the defendant has
violated some substantive norm that regulates the defendant's conduct. If the
defendant has violated no legal rule regulating conduct, the defendant has
acted lawfully and is not subject to liability. Sosa held that in ATS litigation
the norm regulating conduct must be found by the federal courts in
international law.127 Other rules of decision that are not conduct-regulating
128
norms are to be legislated by the courts as ordinary federal common law.
In searching for international law norms that regulate a particular
defendant's conduct, the Sosa Court warned that the "courts should require
any claim . . . to rest on a norm of international character accepted by the
civilized world and defined with ... specificity." 129 International law-like
all law-is a dynamic concept that develops and changes over time. An
emerging norm of international law may eventually receive general
acceptance, but until it does, the federal courts should not provide a tort
remedy. This requirement of general acceptance in effect makes the process
of divining the norms to be remedied a process of investigation and
discovery. The federal courts do not legislate or create the norm. They seek it
in the materials and resources of international law. Requiring general
acceptance significantly limits the scope of the cause of action.
Other rules of decision applicable in ATS litigation are created through a
different process. These rules will be pure 130 federal common law, which the
federal courts will legislate. In fashioning these rules, the courts may
appropriately draw upon all the usual source materials that customarily have
informed common law decision-making. 13 ' Thus, for example, all common
law courts have routinely awarded punitive damages against intentional
tortfeasors, and a court should therefore feel free to legislate a comparable
127.
128.
129.
542 U.S. at 724-26.
See Casto, The New Federal Common Law, supra note 84, at 643-45.
542 U.S. at 725; see Casto, The New Federal Common Law, supra note 84, at
645-54.
130. In an important sense, international norms are also classified as federal common
law. See Casto, The New Federal Common Law, supra note 84, at 639-43. But they are
different from other types of federal common law because the Supreme Court lacks final
legislative authority to make customary international law. See id. at 642.
131. See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 469 (1942) (Jackson, J.,
concurring).
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rule of damages for ATS litigation. 132 The Sosa Court ruled, however, that a
number of factors will counsel hesitation in shaping the scope of the tort
action for violations of international law. The requirement of establishing the
international community's general acceptance of a norm is the most
important limitation
upon this new federal common law cause of action, but
1 33
there are others.
Officers and employees of a government obviously are subject to
liability when they violate international norms designed to protect
individuals from governmental misconduct, and the same liability should
extend to a government's independent contractors. Like government
employees, they are cloaked by the state with significant authority, and they
act for the state. In the leading ATS decision, the principal defendant was
Jose Francesco Sosa, a modern privateer hired by the United States to kidnap
a Mexican citizen in Mexico. 34 No one argued that Mr. Sosa's independent
contractor status rendered him immune to otherwise applicable norms of
international law.
Some have argued that private corporations in contrast to human
defendants are not subject to liability, 35 but the courts have rejected this
fanciful argument. 36 Human beings clearly are subject to regulation by
international norms. Although a corporation is a non-human juridical person,
non-human actors are not generally exempt from international norms.
Governments are mere juridical persons, and they are the quintessential
object of international norms. Governments sometimes form and act through
corporations. Any suggestion that government-owned-and-run corporations
are above international law is obvious nonsense. Similarly, well-established
norms of international law surely cannot be avoided through the slight of
132. See Casto, The New FederalCommon Law, supra note 84, at 652 n. 100.
133. See id. at 653-65.
134. 542 U.S. at 697-98.
135. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289
(S.D.N.Y. 2003) (rejecting defendant's contention that corporations are not subject to liability
under the ATS).
136. In re Agent Orange Prods. Liab. Litig., 373 F. Supp. 2d 7, 54-59 (E.D.N.Y.
2005); Talisman Energy, 244 F. Supp. 2d at 308; NCGUB v. Unocal, 176 F.R.D. 329, 360-61
(C.D. Cal. 1997); see also Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1358-59 (S.D.
Fla. 2003). For the applicability of international law norms to corporations, see generally
Steven Ratner, Corporationsand Human Rights: A Theory of Legal Responsibility, 111 YALE
L.J. 443 (2001).
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hand of hiring a private
corporation to perform functions otherwise regulated
137
by international law.
If a corporate employee, acting pursuant to the policy of a corporate
privateer, violates an international norm, then the corporation, as well as the
employee, is subject to liability. A more complicated issue arises when the
individual is not acting pursuant to corporate policy. Under United States
agency law, a corporate employer is routinely subject to liability for the
employee's torts if the employee was acting within the scope of
employment. 138 The complicated issue is whether this well-established
principle of respondeat superior should be incorporated into ATS litigation.
There is little, if any, international law precedent regarding the availability of
respondeat superior liability because traditional disputes arising under
international law seldom, if ever, involve a claim for damages against a
private employer. Therefore, establishing a general acceptance of respondeat
superior as a principle of international law 139 will be, at best, difficult and
probably impossible. On the other hand, if the issue is controlled by ordinary
federal common law,' 4° respondeat superior liability presumably would be
provided in ATS litigation as a matter of course.
The best solution to this potentially complicated issue lies in the nature
of respondeatsuperior.The Sosa Court's requirement that principles must be
generally accepted under international law is limited to conduct-regulating
137. See Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 445-46 (D.N.J. 1999). At
first glance, the Torture Victims Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256, 106
Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2000)), provides some support for the
claim that corporations should not be subject to suit in ATS litigation. Under the TVPA, only
"individuals" are subject to liability, and one might argue that the word "individuals" limits
the TVPA's scope to human beings. See Beanal v. Freeport-McMoRAN, Inc., 969 F. Supp.
362, 381-82 (E.D. La. 1997), affd on other grounds, 197 F.3d 161 (5th Cir. 1999); In re
Agent Orange, 373 F. Supp. 2d at 55-56. If, in fact, Congress decided in enacting the TVPA
that corporations should not be subject to liability for torts committed in violation of
international law, then the TVPA's legislative wisdom should be adopted for all such torts.
See Casto, The New Federal Common Law, supra note 84, at 661-63. The TVPA's legislative
history, however, indicates that the word "individuals" was selected to exclude tort claims
against sovereign governments. H.R. Rep. No. 102-367, at 4 (1993) ("Only 'individuals,' not
foreign states, can be sued."). There is no evidence that Congress considered corporate
liability one way or another when it enacted the TVPA. Therefore, the Act cannot be read as
evidencing Congress's considered wisdom on the subject and should not be used by the courts
to fashion a common law rule. See Casto, The New Federal Common Law, supra note 84, at
661-63. In any event, courts have held that corporations are subject to liability under the
TVPA. See Sinaltrainal,256 F. Supp. 2d at 1358-59.
138. See RESTATEMENT (SECOND) OFAGENCY §§ 219, 245 (1958).
139. See supra notes 129-33 and accompanying text.
140. See supra notes 130-32 and accompanying text.
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norms, and respondeat superior simply is not a norm that regulates
conduct.' 4 1 In ATS litigation, the conduct-regulating norms are directed at
the employee-not the employer. The norms are crucial to establishing the
unlawfulness of the actor's conduct. Under respondeat superior, however,
once tortious misconduct within an employee's scope of employment is
established, the employer is liable regardless of fault. 42 The doctrine is a
principle for allocating losses and not a norm for regulating conduct.1 43 The
American Law Institute has explained that
with the growth of large enterprises, it became increasingly apparent that it
would be unjust to permit an employer to gain from the intelligent
cooperation of others without being responsible for the mistakes, the errors
of judgment and the frailties of those working under his direction and for his
benefit.44
Because respondeat superior is not a conduct-regulating norm,' 45 its
availability in ATS litigation is an issue of pure federal common law and not
141.
142.
See supra note 127 and accompanying text.
See RESTATEMENT (SECOND) OF AGENCY §§ 219, 245, supra note 138; accord
RESTATEMENT (THIRD) OF AGENCY § 2.04 (tent. draft no. 2, Mar. 14, 2001); RESTATEMENT
(THIRD) OF AGENCY §§ 7.03, 7.07 (tent. draft no. 5, Mar. 17, 2004).
143. Without respondeat superior, loss resulting from wrongful conduct is, as a
practical matter, usually allocated to the victim-plaintiff. To be sure, the victim could obtain a
judgment against the employee who committed the tort, but the employee frequently will be
judgment-proof. With respondeatsuperior, the employer becomes liable for the employee's
tort. Because the employer is significantly less likely to be judgment proof, the employer's
vicarious liability significantly shifts the loss from the victim to the employer. See
RESTATEMENT (THIRD) OF AGENCY, supra note 142, § 2.04 cmt. b (tent. draft no. 2). This
allocation of loss is done with absolute disregard to whether the employer has acted
wrongfully.
144.
RESTATEMENT (SECOND) OF AGENCY, supra note 138, § 219 cmt. a. The doctrine
is based in significant part upon the employer's power to control employees, but no standards
of conduct are imposed upon the employer. Liability is imposed on the "non-faulty employer."
Id.; accord RESTATEMENT (THIRD) OF AGENCY, supra note 142, § 2.04 cmt. b (tent. draft no.
2); RESTATEMENT (THiRD) OF AGENCY, supra note 142, § 7.03 cmt. b (tent. draft no. 5).
145. To be sure, the existence of respondeat superior liability obviously influences
employer conduct. See, e.g., RESTATEMENT OF AGENCY, supra note 142, § 7.07 cmt. b (tent.
draft no. 5). Nevertheless, the doctrine is not a norm that itself establishes rules of conduct.
Adverse publicity and fear of being caught can have a powerful influence upon human
conduct, but fear and bad press are hardly norms. Similarly, in international law, the
availability of an effective international forum to enforce the norms of international law can
have a profound effect upon conduct, but no one would view the jurisdictional rules regulating
the power of international tribunals to be conduct-regulating norms.
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subject to the stringent requirement of proving the existence of a wellestablished international norm. 46 If respondeat superior is based upon
simple domestic common law rather than international law, the doctrine
obviously should be available in ATS litigation. American common law
judges always have and always will hold employers vicariously liable for
their employee's torts. Any change to this fundamental concept of American
tort law should come from a legislature and not the courts.
C. Regulating Revenue Streams
The final layer of regulation should be imposed through the contracting
process. Our Founders created a regulatory scheme that systematically linked
privateers' compensation to their conduct, and today's new privateers should
also be subject to this kind of economic constraint. The old system of prize
courts was sui generis and cannot be adapted to modem privateering, in
which compensation flows directly from the government to the contractor.
Nevertheless, the general principle that misconduct should adversely affect a
privateer's revenue stream is an idea of timeless wisdom. Unfortunately,
today's government contracts provide no significant mechanism to
discourage PMFs and their employees from mistreating people.
The federal government's debarment and suspension process provides a
model for discouraging contractor misconduct. Under this process, the
government may invoke the procurement debarment process, and a
contractor may be excluded from government contracting or temporarily
suspended, 4 7 if a contractor demonstrates lack of business integrity, commits
serious breaches of contract or otherwise demonstrates lack of present
responsibility. 48 Unfortunately, however, procurement debarment does not
address the problem of PMF misconduct against others, because the purpose
of procurement debarment is simply to assure that contractors will fulfill
their contracts.
The Abu Ghraib scandal illustrates the ineffectiveness of procurement
debarment as a tool for regulating PM!F misconduct. Some of the Americans
involved in the disgusting mistreatment of prisoners were civilian PMF
employees, and when this became public knowledge, the General Services
Administration ("GSA") investigated the matter to determine whether a
146.
147.
CONTRACTS
148.
See supra note 127 and accompanying text.
See JOHN CIBINIC, JR. & RALPH C. NASH,
JR., FORMATION OF GOVERNMENT
454-503 (3d ed. 1998).
See id. at 456-58, 461-64.
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debarment would be appropriate. 149 The PMF's contract, however, has no
clauses addressing the blatant misconduct. 150 As a result, the investigation
centered on a laughable worry that the contract was for I.T. services and that
the provision of interrogation services at the government's specific request
was beyond the contract's scope. 151 The PMF quite properly replied that "in
war time we should respond when called."' 52 The inevitable result was a
GSA decision not to debar.
In addition to procurement debarment that centers upon a contractor's
responsibility, the government also uses inducement debarments to require
contractors to perform contracts "in ways that will further fundamental social
and economic goals." 153 The concept of inducement debarment is the
obvious model for regulating PMF misconduct, but as a practical matter, this
kind of debarment is only used when sanctioned by an executive order 154 or a
statute. 5 5 Therefore, bringing inducement debarment to bear on the problem
will require specific congressional or presidential action.
There are other possible contractual mechanisms that might be used to
address PMF misconduct. The government always maintains the right to
terminate a contract for convenience,15 6 and in theory such a termination
might be used against a PMF. There is general agreement, however, that
terminations for convenience cannot be used to back door the debarment
process. 5 7 About the only effective contractual tool available to the
government is its right to remove contractor employees from the theater of
149. See Calvin Biesecker, GSA Won't Suspend Defense Contractor,CACI Says, DEF.
DALY, July 8, 2004, § 5.
150. For the entire
572 pages
of the CACI contract file, see
http://www.publicintegrity.org/docs/wow/CACI-ordersAll.pdf (last visited Apr. 23, 2006).
151.
See Gail Repsher Emery & Roseanne Gerin, Out-of-Scope Contracts Run Out of
Time, WASH. TECH., June 21, 2004, http://www.washingtontechnology.com/news/19_6/coverstories/23775-1.html.
152. CACI's InterrogationSupport ContractExtended, DEF. DAILY, Aug. 12, 2004.
153. CmINic & NASH, supra note 147, at 455. See generally id. at 458-60, 464-67.
154. See, e.g., Exec. Order No. 11,246, pt. II.D., § 209(a), 3 C.F.R. 339, 343 (19641965).
155. See CiBmNc & NASH, supra note 147, at 465-67 (discussing statutes that permit
inducement debarment).
156. See JOHN CIBINIC, JR. & RALPH C. NASH, JR., ADMINISTRATION OF GOVERNMENT
CONTRAcTS 1073-87 (3d ed. 1995).
157. See id. at 1082; CmiNic & NASH, supra note 147, at 500-03.
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operations.' 5 8 This limited power, however, does not
affect the PMF's
59
revenue stream and may actually benefit the employee.
If the government wishes, it may use its contracting power to regulate
PMFs by changing the terms upon which it contracts and by revamping the
administration of PMF contracts.1 6° Unfortunately, however, there is little
likelihood that the government will do so. The executive branch's exclusive
interest is operational, and it has shown scant concern for PMF conduct that
is not directly related to the accomplishment of assigned missions. 161 In fact,
the government has taken action on occasion that, in effect-though
perhaps
62
not intentionally-protected PMF misconduct from regulation.
V. CONCLUSION
The recent, burgeoning practice of outsourcing military jobs to private
corporations is an ad hoc development oriented entirely toward the
accomplishment of specific military and quasi-military objectives. Ordinarily
when the government contracts to obtain services, virtually the sole
considerations are whether the services will be performed reliably,
effectively, and at an appropriate price. No thought is given-nor should be
given-to contractor misconduct that is not related in some way to the
contractor's obligations under the contract. The government properly
assumes that the regulation of extra-contractual misconduct should be left to
comprehensive interlocking systems of American tort and criminal law.
When, however, military services are performed overseas, this assumption
does not hold true. As a practical matter, American tort and criminal law
158. See Turner & Norton, supra note 77, at 36; see, e.g., supra note 14 and
accompanying text.
159. See infra note 162 and accompanying text.
160. For excellent discussions of possible reforms, see Dickinson, Government for
Hire, supra note 1, at 199-207, and Steven L. Schooner, ContractorAtrocities at Abu Ghraib:
CompromisedAccountability in a Streamlined, Outsourced Government, 16 STAN. L. & POL'Y
REv. 549 (2005).
161.
There was a proposal to change contracting policy regarding PMFs, but the
purpose was to give military commanders more operational control. See Karen L. Douglas,
Contractors Accompanying the Force: Empowering Commanders with Emerging Change
Authority, 55 A.F. L. REv. 127, 128-29, 150-55 (2004).
162. See, e.g., supra notes 13-15 and accompanying text. When an American PMF
operation mistakenly killed eighteen unarmed civilians, including nine children, in Colombia,
and the State Department was asked whether the United States would help the Colombian
government in its efforts to bring the PMF employees to justice, the State Department replied,
"Our job is to protect Americans, not investigate Americans." Singer, supra note 12, at 539
(internal quotation marks omitted) (quoting a State Department official).
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generally does not operate extraterritorially, and an effective system of
foreign criminal and tort law may not be available. This regulatory gap is
particularly egregious when American contractors are operating in a
geographic region that has no functioning government.
When our Founders licensed privateers to perform military duties at sea
where there was no functioning government, they created a comprehensive
regulatory scheme to regulate the privateers. A comparable scheme is
necessary to regulate the new privateers of the twenty-first century. 163 The
conduct of PMFs who are employed by the United States to act for and to
represent the United States should be regulated by the United States.
Extending American law overseas to regulate conduct in foreign lands is not
inconsistent with the ancient principle of territoriality. The power of
government to regulate the actions of its citizens and agents has always been
viewed as an appropriate exception to the principle of territoriality. The
exception held true when the United States regulated its privateers some two
centuries ago, and it is equally applicable in respect of the new privateers of
the twenty-first century.
163. This Essay has used the Founders' three-layered approach to regulating
privateers, but that tripartite scheme should not be considered as an exclusive solution to the
problem. For example, given corporations' tendency to punish whistle-blowers, see, e.g.,
supra note 14 and accompanying text, whistle-blower protection should be provided. See
Deven Desai, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to
Regulating PrivateMilitary Companies, 39 U.S.F. L. REv. 825, 861-64 (2005).
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