COORDINATING THE FORCES: MILITARY
COMMAND OF NON-DOD CONTRACTORS
IN BATTLESPACE EMERGENCIES
Matthew Chow
I. Introduction .....................................................................................
II. The Case for Military Command of Non-DoD Contractors ........
III. Barriers in the Present State of Battlespace Contracting ................
A. The Contracting Officer and the FAR .......................................
B. Multiple Procuring Agencies and the Fight for Control ...........
C. Competing Objectives and Divergent
Motivations of Contractors and Commanders ..........................
IV. Earlier Proposals for Enhancing Military
Command of Non-DoD Contractors .............................................
V. Constitutional Authority for Military
Command of Non-DoD Contractors .............................................
A. The President’s Commander-in-Chief Authority......................
B. The President’s Foreign Affairs Authority .................................
C. Implications—Changes, Equitable
Adjustments, and Liability Issues ...............................................
VI. Conclusion........................................................................................
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I. INTRODUCTION
[C]ommanders feel as though they do not have complete visibility on the actions, the movements, [and] the performance of armed security contractors in the
field . . . . [I]t is worth exploring whether or not there needs to be one central entity
that would at least be in charge of the mission of all armed security contractors in
Iraq . . . not just those who work for the Department of Defense.1
The use of contractors to support armed conflicts has been around for centuries, but only after the War on Terror began did its prevalence garner much
attention.2 Today, contracting and military forces are sharing the foreign
1. Geoff Morrell, Press Sec’y, U.S. Dep’t of Def., Press Briefing (Oct. 17, 2007), available at
http://www.defenselink.mil/transcripts/transcript.aspx?transcriptid=4063.
2. Rafael Enrique Valero, Hired Guns, Nat’l J., Jan. 5, 2008, at 23–25.
Matthew Chow ([email protected]) expects to receive his J.D. degree from The George
Washington University Law School in May 2009. He is senior articles editor of the Public
Contract Law Journal. He thanks his family and Judge Jeri Kaylene Somers for their support throughout the writing process.
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battlespace3 to an extent greater than ever.4 This development is regarded as
necessitating better coordination between the two forces, particularly in battlespace emergencies.5 Many proposals for improving coordination exist, but
their focus on regulatory and administrative change diminishes the likelihood
of adoption and effective implementation.6
This Note suggests that improved coordination during foreign battlespace
emergencies may be achieved through military command of non-Department
of Defense (DoD) contractors.7 Authority for such command already exists,
and that authority lies in the Constitution. Article II, section two, states that
“the President shall be Commander in Chief ” of the armed forces.8 Article II
also grants the President great authority over foreign affairs.9 The scope of
these constitutional powers is subject to rigorous debate.10 Nonetheless, this
Note suggests that an inherent implication of presidential powers is the authority to equip combatant commanders11 with emergency command authority over non-DoD contractors.
Part II of this Note illustrates the need for military command of non-DoD
contractors. Part III follows with an examination of the current state of nonDoD contracting in foreign battlespaces, and Part IV concludes that existing
proposals to improve commander-contractor coordination are weak. Part V
suggests that the President’s constitutional powers can be invoked to equip
commanders with a unified command over DoD and non-DoD contractors
3. This Note uses the term “battlespace” in accordance with the American Bar Association’s
(ABA) definition of an area that is subject to hostile action but not limited to the conventional
battlefield or combat zone. Letter from Robert L. Schaefer, Chair, ABA Section of Pub. Contract
Law, to Dean G. Popps, Principal Deputy to the Assistant Sec’y of the Army (Oct. 12, 2005),
available at http://www.abanet.org/contract/federal/regscomm/emerging_007.pdf.
4. Cong. Budget Office, Contractors’ Support of U.S. Operations in Iraq 1 (2008); see also
Press Release, U.S. Army, Army Accepts Gansler Commission Report on Contracting; Commits
to Action (Nov. 1, 2007), available at http://www.army.mil/-newsreleases/2007/11/01/5901army-accepts-gansler-commission-report-on-contracting-commits-to-action/.
5. Eric Schmitt & Thom Shanker, Pentagon Sees One Authority over Guards, N.Y. Times,
Oct. 17, 2007, at A1.
6. See discussion infra Part IV (discussing preexisting proposals to improve coordination
between contractors and military commanders sharing the battlespace).
7. This Note does not focus on military command of Department of Defense (DoD) contractors because commanders already possess authority to directly command DoD contractors in
emergency situations. See discussion infra note 28 and accompanying text.
8. U.S. Const., art. II, § 2, cl. 1.
9. U.S. Const., art. II, § 2, cl. 2; id. § 3; see also United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 319 (1936) (“The President is the constitutional representative of the United States
with regard to foreign nations. He manages our concerns with foreign nations . . . .” (quoting
S. Comm. on Foreign Relations Report of Feb. 15, 1816, in 8 Compilation of Reports of the
Comm. on Foreign Relations, United States Senate 1789–1901, S. Doc. No. 56-231, at 24
(1901))).
10. See, e.g., Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign
Affairs, 111 Yale L.J. 231, 237 (2001); Steven I. Vladeck, The Calling Forth Clause and the Domestic
Commander in Chief, 29 Cardozo L. Rev. 1091, 1091 (2008).
11. “Combatant commander” is defined by DFARS 252.225-7040(a) to refer to the commander
of a unified or specified combatant command in accordance with 10 U.S.C. § 161 (2006).
Military Command of Non-DoD Contractors
261
when the current system of contract administration is too slow to effectively
respond to emergency situations in foreign battlespaces.
II. THE CASE FOR MILITARY COMMAND
OF NON-DOD CONTRACTORS
The overall number of American troops deployed to Iraq and Afghanstan
is decreasing.12 Meanwhile, the number of non-DoD contractors in foreign
battlespaces continues to grow.13 By August 2008, there was one contracted
employee for every military serviceman deployed in Iraq.14 Non-DoD contractors are providing goods and services that are critical to winning the War,
such as food, fuel, vehicles, communications equipment, security, and logistics.15 Indeed, “the success of our war fighters is linked directly to the success
of the contracting workforce.”16
Paradoxically, the notion of a shared fate between non-DoD contractors
and the military has not translated into coordinated strategies or execution.
For example, combatant commanders in Iraq often receive calls for help
from non-DoD contractors whose presence in the battlespace was previously unknown to them.17 Contractors’ unknown presence in the battlespace
may jeopardize lives, cause confusion, disrupt previously planned operations,
and deprive commanders of a clear understanding of battlespace conditions.
Without a unified command, coordination to the degree that is necessary to
achieve marked success may be unobtainable.
The absence of a unified command over DoD and non-DoD contractors
also creates an enormous challenge for combatant commanders to execute
effective responses to emergency situations in foreign battlespaces. For example, commanders currently lack the ability to readily identify contractor
personnel or track their movements.18 The lack of this critical information
12. Jim Garamone, Bush Announces Iraq Troop Cut, Am. Forces Press Service, Sept. 9, 2008,
available at http://www.defenselink.mil/news/newsarticle.aspx?id=51083.
13. John M. Broder & David Rohde, State Department Use of Contractors Leaps in 4 Years, N.Y.
Times, Oct. 24, 2007, at A1; see also Patrick F. Kennedy et al., Report of the Secretary of
State’s Panel on Personal Protective Services in Iraq 5 (2007), available at http://www.state.
gov/documents/organization/94122.pdf.
14. Cong. Budget Office, Contractors’ Support of U.S. Operations in Iraq 8 (2008).
15. Id. at 5.
16. On Urgent Reform Required: Army Expeditionary Contracting, The Report of the Commission on
Army Acquisition and Program Management in Expeditionary Operations: Hearing Before the Subcomm.
on Readiness & Management Support of the S. Comm. on Armed Servs., 110th Cong. 12 (2007) (statement of Claude M. Bolton, Assistant Sec’y of the Army (Acquisition, Logistics, and Technology)
and Army Acquisition Executive) (referring to DoD and non-DoD contractors).
17. News Transcript, Robert Gates, Sec’y of Def., Media Availability with Secretary Gates
Enroute to Chile (Oct. 3, 2007), available at http://www.defenselink.mil/transcripts/transcript.
aspx?transcriptid=4050.
18. Rebecca Rafferty Vernon, Battlefield Contractors: Facing the Tough Issues, 33 Pub. Cont. L.J.
369, 389–90 (2004).
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puts commanders at an operational disadvantage because their decisions often
are based on the number of personnel in an affected area.19
Furthermore, military command over non-DoD contractors would enable commanders to respond much faster to battlespace emergencies than
the current system of contract administration permits. Direct command over
non-DoD contractors would bypass the slow process of issuing change orders
through a Contracting Officer (CO),20 who may or may not be deployed in
the immediate area. Combatant commanders would be able to communicate
their needs directly to contractors without fear of being relayed through a
bureaucratic process when emergencies require immediate action.
Military command over non-DoD contractors also would ensure that contractors’ services are available in times of emergency. Currently, the lack of
authority leads to situations where contractors can be wholly absent when
their services are necessary. Contractor personnel stationed in the Balkans,
for example, once refused to work during holidays.21 Direct command authority could avert any potential disasters that might occur if contractors remain
capable of ignoring the military’s needs.
Thus, there are several reasons why military command of non-DoD contractors deployed in foreign battlespaces is necessary. Despite these reasons,
preexisting barriers continue to block the implementation of such authority.
III. BARRIERS IN THE PRESENT STATE
OF BATTLESPACE CONTRACTING
There are several barriers to military command of non-DoD contractors,
and the three most significant are (1) the role of the CO and tedious regulatory procedures for contract administration; (2) the multiplicity of federal
agencies that contract private companies to perform work in foreign battlespaces; and (3) conflicting objectives and divergent motivations of contractors and commanders.
A. The Contracting Officer and the FAR
Today, the DoD and the Department of State represent the two most active government procurers of contractor support for foreign areas where the
nation has an active military presence.22 By August 2008, there was one contracted employee for every military serviceman deployed in Iraq.23
The large number of contractors sharing the foreign battlespace with the
U.S. military has created operational challenges for combatant commanders.
19. Id. at 390.
20. See discussion infra Part III.A (discussing the role of the Contracting Officer (CO) and the
Federal Acquisition Regulations (FAR)).
21. Vernon, supra note 18, at 389.
22. Cong. Budget Office, supra note 14, at 8.
23. Id.
Military Command of Non-DoD Contractors
263
In times of emergency, commanders lack contractual authority to command
non-DoD contractors working in the battlespace because such authority is
based on a contractual relationship to which the DoD is not a party.24
Instead, COs for the Department of State and other non-DoD agencies
exercise exclusive contractual authority over their respective contractors.25
The Federal Acquisition Regulations (FAR) provide rules for contract administration, including a process whereby contractor personnel take supervision
from a contractor firm, which may or may not report to a prime contractor,
who finally takes orders from a CO who may be remotely stationed away from
the battlespace.26
DoD contracts follow the same system under normal circumstances.27
However, the DoD’s contracting rules expressly permit combatant commanders to bypass the CO and directly command DoD contractors in emergency
situations such as enemy attacks or natural disasters in foreign combat areas.28
This special provision, however, applies only to DoD contracts. Combatant
commanders do not possess similar emergency command authority over nonDoD contractors.
An internal investigation of the Department of State’s contracting activities
in Iraq concluded that “[t]he process for coordination and sharing of information between the Embassy and the Multi-National Force–Iraq [i.e., the
military] is not sufficiently robust to ensure mutually beneficial situational
awareness and knowledge of the particulars of incidents that could potentially
affect U.S.–Iraqi relations.”29 The reason for this is the previously described
system of non-DoD contract administration, in which any attempt by combatant commanders to coordinate military and contractor operations must
run through a CO, who subsequently navigates a bureaucracy of contractual
paperwork and organizational hierarchy before producing any desired change
in contractors’ performance in the battlespace.
This process of non-DoD contract administration, even in times of battlespace emergencies, could take days, if not weeks, and the process must be
separately run for each contractor who reports to a different CO. Such a slow
24. Id. at 20; see also 73 Fed. Reg. 10,945, 10,952 (to be codified at FAR 52.225-19(d)(4)) (stating that new Federal Acquisition Regulations create no authority in combatant commanders to
“create missions” or modify contracts); c f. Dep’t of Def. Instruction 3020.41, ¶¶ 6.1.4, 6.3.3
(Oct. 3, 2005), available at http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf [hereinafter
DoDI No. 3020.41] (“The contract is the principal legal basis for the relationship between the
Department of Defense and the [DoD] contractor. . . . The contracting officer . . . is the liaison between the commander and the defense contractor for directing or controlling contractor performance because commanders have no direct contractual relationship with the defense contractor.”).
25. See, e.g., FAR 1.602-1.
26. Letter from Robert L. Schaefer, supra note 3, at 2–3.
27. DoDI No. 3020.41, supra note 24, ¶ 6.1.4.
28. Id., ¶ 6.3.3. Combatant commanders have express authority, “in emergency situations
(e.g., enemy or terrorist actions or natural disaster),” to direct DoD contractors’ conduct within
and without the scope of their contract so long as the contractor does not perform “inherently
governmental” activities. Id.
29. Kennedy et al., supra note 13, at 6.
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process is inconsistent with combatant commanders’ needs for action that is
responsive to emergency battlespace situations in a matter of minutes and
hours, not days or weeks. Furthermore, commanders who dare to try this approach will make a futile effort because there is no single database that identifies all of the non-DoD contractors present in the battlespace, never mind
detailing exactly what they are contracted to do.30 The result is an inability
to coordinate the operations of the military with those of contractors sharing
the battlespace.
B. Multiple Procuring Agencies and the Fight for Control
Except for the DoD, the Department of State and the U.S. Agency for
International Development (USAID) collectively supply the largest contingency of government contractors in the Iraqi battlespace.31 Many of their
contractors are private security companies (PSCs) hired to protect government employees such as embassy officials, and contracting for such services
presents new challenges.32 However the pressing nature of war does not accommodate this novel situation, and both agencies face internal struggles
to develop effective contract administration rules and procedures that will
assuage public concerns about contractors’ misconduct33 and the military’s
concerns regarding battlespace coordination.
In addition to internal struggles, the Department of State is involved in
an external struggle with the DoD. The Department of State refuses to yield
control of its contractors to the DoD.34 For example, the Department of State
asserts that it should retain control over the approximately 2,500 PSCs that
protect American diplomats despite recent developments exposing oversight
problems with PSCs that resulted in the death of Iraqi nationals.35 The DoD
expressed displeasure with the status quo, so the two departments agreed in
December 2007 to improve coordination in certain battlespace emergencies.36 That agreement, however, is very limited in scope,37 and it does not
30. Office of the Special Inspector Gen. for Iraq Reconstruction, Management of Iraq
Relief and Reconstruction Fund Program: The Evolution of the Iraq Reconstruction
Management System 7 (2006), available at http://www.sigir.mil/reports/pdf/audits/06-001_evo
lution_of_irms.pdf.
31. Cong. Budget Office, supra note 14, at 9.
32. See Sean McCormack, Spokesman, U.S. Dep’t of State, Daily Press Briefing (Oct. 23,
2007), available at http://www.state.gov/r/pa/prs/dpb/2007/oct/93949.htm; see also Donna Miles,
Gates Aims to Resolve Disconnect Between Military, Security Contractors, Am. Forces Press Service,
Oct. 18, 2007, available at http://www.defenselink.mil/news/newsarticle.aspx?id=47847.
33. Some government contractors have come under public scrutiny for covering up wrongdoing, such as inappropriately shooting and killing an Iraqi national while intoxicated. Eric Schmitt,
Report Details Shooting by Drunken Blackwater Worker, N.Y. Times, Oct. 2, 2007, at A10.
34. Schmitt & Shanker, supra note 5, at A1.
35. Id.
36. Memorandum of Agreement Between the Department of Defense and the Department
of State on USG Private Security Contractors, at 7 (Dec. 5, 2007), available at http://www.
defenselink.mil/pubs/pdfs/Signed MOA Dec 5 2007.pdf [hereinafter MOA on Private Security
Contractors].
37. See discussion infra note 51 (discussing the limited scope of the December 2007 agreement
between the DoD and Department of State).
Military Command of Non-DoD Contractors
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negate the argument that combatant commanders are better trained to command and control all contractors, including Department of State and USAID
contractors. The first priority in the battlespace is security, and commanders
best understand how to manage resources, including contractors, in response
to and in anticipation of changing battlespace conditions to satisfy that priority. Thus, despite some progress, the nature of multiple agencies controlling contractors makes it difficult to coordinate any response to battlespace
emergencies.
C. Competing Objectives and Divergent Motivations
of Contractors and Commanders
Contract performance is the contractor’s single objective, and that may
compete with the military’s objectives depending on the contracted service.
For example, some PSCs have a contractual objective to protect a diplomat
when he or she is moving from one location to another. If, in route, PSCs
encounter people who they believe to be a threat, the PSCs may engage those
people in aggressive and perhaps lethal ways when in fact the apparent threat
is more benign.38 PSCs may act with little regard for regional security or
promotion of trust with natives because their only objective is protection of
diplomats.39 That competes with the military’s objectives, which focus on regional security and developing positive relations with natives. Coordination
is more difficult when objectives compete, and this issue is only exacerbated
during emergencies.
The difference in motivating factors for contractors and commanders presents another challenge to battlespace coordination. The profit-driven nature
of contracting provides little incentive for contractors to comply with military orders that interfere with their jobs.40 Each contractor is operationally
focused on its own obligations with little regard for those of other contractors
or the military.41
Comprehensively, the multiplicity of departments and agencies that contract private companies to perform work in foreign battlespaces, the role of
the CO and the tedious procedures of contract administration, and the competing objectives and divergent motivations of contractors and commanders
collectively compromise battlespace coordination.
38. This was actually the case in an incident in Iraq where private American security contractors fired into the windshield of an Iraqi vehicle out of fear that it contained a bomb. Steve
Fainaru & Saad al-Izzi, U.S. Security Contractors Open Fire in Baghdad, Wash. Post, May 27,
2007, at A1.
39. See Kennedy et al., supra note 13, at 6 (suggesting contractors need to improve their
sensitivity to local cultures).
40. Admittedly, some contractors may comply with military orders and subsequently submit
a request for equitable adjustment as necessary, which could drive contractors’ profits higher.
This creates the risk, however, that COs will deny a request for equitable adjustment because the
orders were not given by someone with contracting authority.
41. See discussion supra Part II (discussing uncoordinated strategies between contractors and
combatant commanders).
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IV. EARLIER PROPOSALS FOR ENHANCING MILITARY
COMMAND OF NON-DOD CONTRACTORS
Various stakeholders have presented numerous proposals to equip commanders with varying degrees of authority over contractors. These proposals,
however, have either encountered significant political resistance or failed to
offer solutions comprehensive enough to have significant impact.
The most common proposals are (1) granting combatant commanders limited contract authority; (2) improving combatant commanders’ knowledge of
the current contract administration rules and procedures; (3) deploying more
COs; (4) decreasing use of contractors and enlarging the enlisted force to
compensate; and (5) shifting full-time command and control authority over
all contractors to the DoD. Each proposal has merit, but the first four proposals fail to offer the extent of authority that the Constitution provides to the
President, while the latter proposal to create permanent full-time commandand-control authority over all contractors appears to be politically infeasible.
One proposal is to provide combatant commanders with limited contractual authority over non-DoD contractors. A CO would retain most of her or
his authority, but commanders could issue orders to contractors if necessary
under certain circumstances. The effectiveness of this proposal is limited because it would be difficult to clearly define the boundaries of a commander’s
contractual authority, it would require statutory changes to the FAR and
Defense Federal Acquisition Regulation Supplement (DFARS), and it would
require commanders to dedicate substantial personal time to learning about
contracting rules and procedures.42
Many stakeholders have pleaded for commanders to engage in more training on managing contractors in the battlespace.43 More training is not a
meritless proposal, but it probably would not lead to improved coordination
without accompanying changes to the rules of contract administration.44 The
process of communicating necessary changes from a commander to a contractor may improve marginally if commanders improve their understanding of
the contracting process, but this improved understanding does nothing to
change the many steps that a CO must undertake to issue a change order.
Likewise, the deployment of more COs would only marginally satisfy the
need for better commander-contractor coordination in times of emergency.
The Army is considering such a proposal for its own contractors.45 More COs
deployed to operate alongside combatant commanders would create instant
42. Letter from Robert L. Schaefer, supra note 3, at 3.
43. Id.
44. Also, training may inadequately improve coordination without recognition of the
President’s inherent constitutional authority to order military command over non-DoD contractors. See discussion infra Part V.
45. Lee McMahon & Gary Sheftick, Gansler Commission Cites Systemic Problems in Army
Contracting, Army News Service, Nov. 1, 2007, available at http://www.army.mil/-news/2007/
11/01/5906-gansler-commission-cites-systemic-problems-in-army-contracting/.
Military Command of Non-DoD Contractors
267
access to someone with contractual authority.46 However, more COs may actually complicate matters because it generates more individuals with whom
commanders need to communicate. On a different level, even if this proposal is adopted, agencies would be challenged to find enough people who are
qualified for the CO position.47
Increased military enlistment may decrease dependence on contractors,
but this indirect approach to remedying poor commander-contractor coordination is unlikely to unfold because the DoD has decided to scale down the
use of large, long-term military operations.48 Regardless of its desirability, the
use of contractors to provide vital services to war efforts is here to stay.49
The DoD has advocated for the military’s unified command over contractors from all agencies.50 Presumably, this system would leave in place the
normal contract formation process wherein each agency procures its respective needs. Subsequently, however, the contracts would probably include a
provision that effectively delegates contract administration to the DoD. This
would require significant changes to the FAR and DFARS, and it would necessitate some COs’ reassignment from the Department of State to the DoD.
Furthermore, this proposal is facing intense resistance from the Department
of State.51
Department of Defense Instruction No. 3020.41 states that “the ranking
military commander may, in emergency situations (e.g., enemy or terrorist
actions or natural disaster), direct contingency contractor personnel52 to take
46. Letter from Robert L. Schaefer, supra note 3, at 3.
47. See FAI Report Stems Debate over Acquisition Workforce Numbers, 49 Gov’t Contractor
¶ 229 (2007) (explaining that recruitment of new government acquisition personnel may be necessary to counter retirement trends).
48. See Dep’t of Def., Quadrennial Defense Review Report 41 (2006), available at http://
www.defenselink.mil/pubs/pdfs/QDR20060203.pdf; see also Donna Miles, QDR Provides Vectors
for Defense Transformation, Am. Forces Press Service, Jan. 27, 2006, available at http://www.de
fenselink.mil/news/newsarticle.aspx?id=14502 (presenting the Defense Secretary’s intent to shift
focus from numbers to capabilities). There is, however, some optimism that the Government’s
acquisition workforce will not be depleted as significantly as some fear. Walter Pincus, Conferees
Want Hard Look at Contractors, Wash. Post, Dec. 17, 2007, at A19 (reporting on congressional
authorization for the Director of National Intelligence to convert positions currently occupied
by contractors into full-time government jobs).
49. Elizabeth Newell, Buying Support, Gov’t Executive, Jan. 2008, at 13.
50. Miles, supra note 32; see also Major Jeffrey S. Thurnher, Drowning in Blackwater: How Weak
Accounting over Private Security Contractors Significantly Undermines Counterinsurgency Efforts,
2008-Jul Army Law. 64, 87 (2008).
51. Schmitt & Shanker, supra note 5, at A1. However, DoD and the Department of State
entered into a Memorandum of Agreement in December 2007 that significantly improved battlespace coordination by recognizing that the military will “assume command of the scene” in
a “serious incident.” MOA on Private Security Contractors, supra note 36, at 7. This change is
encouraging, but its scope appears to be limited to PSCs facing personal danger. See id. (stating that the military will assume command “with the primary purpose being the safe extraction
of the . . . PSC”); see also Thurnher, supra note 50, at 84–85. This Note advocates for broader
command authority that applies to all non-DoD contractors regardless of the nature of the battlespace emergency.
52. “Contingency contractor personnel” is defined as “defense contractors and employees of
defense contractors and associated subcontractors . . . who are authorized to accompany U.S.
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lawful action . . . .”53 Although it appears not to have been previously proposed, the FAR could be amended to similarly grant combatant commanders
with emergency authority to command and control non-DoD contractors.
Amending the FAR, however, is unnecessary because, as proposed infra Part V,
the President’s constitutional powers already provide a way for commanders
to command and control non-DoD contractors during emergencies.
Altogether, previous proposals to improve coordination between combatant commanders and non-DoD contractors sharing foreign battlespaces are
limited in the scope of their purported effectiveness or face apparently insurmountable political resistance to implementation. This is not as discouraging
as it may seem, however, because an approach already exists by which combatant commanders can exert emergency command and control authority over
non-DoD contractors working in foreign battlespaces. This approach has its
roots in the Constitution.
V. CONSTITUTIONAL AUTHORITY FOR MILITARY
COMMAND OF NON-DOD CONTRACTORS
The President . . . possesses in his own right certain powers conferred by the
Constitution on him as Commander-in-Chief and as the Nation’s organ in foreign
affairs.54
The Constitution is brief in its discussion of presidential powers in war
and foreign affairs. Article II, section two, states that “[t]he President shall
be Commander in Chief of the Army and Navy of the United States . . . .”55
Article II also provides for the President’s power to make treaties, appoint
ambassadors, and receive ambassadors from foreign countries.56 Beyond that,
the text of the nation’s founding document is silent.57
Many scholars have given in to the temptation to fill that silence with theories based on a variety of factors, but there is no consensus as to what factors should count.58 Thus, a theoretical approach, although popular, does not
readily clarify the scope of the President’s powers.59
military forces in . . . exercises designated by the geographic Combatant Commander. This includes employees of external support, systems support, and theater support contractors.” DoDI
No. 3020.41, supra note 24, ¶ E.2.1.3.
53. Id. ¶ 6.3.3.
54. Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109 (1948).
55. U.S. Const., art. II, § 2, cl. 1.
56. U.S. Const., art. II, § 2, cl. 2; id. § 3.
57. Justice Jackson referred to the Commander-in-Chief Clause as “cryptic words [that] have
given rise to some of the most persistent controversies in our constitutional history.” Youngstown
Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 641 (1952).
58. See, e.g., Prakash & Ramsey, supra note 10, at 237 (explaining how constitutional analysis of
the President’s foreign affairs powers is largely driven by “a host of nontextual factors—practice,
convenience, necessity, national security concerns, international relations theory, international
law, inherent rights of sovereignty, and so forth . . . .”).
59. See id. (“[M]odern foreign affairs scholarship has failed to provide a satisfactory account of
the source and allocation of presidential and congressional foreign affairs powers.”). The author
Military Command of Non-DoD Contractors
269
This Note bypasses preexisting theories and seeks to prove its point by
resorting to the authority of judicial decisions. The courts have never considered whether the President has emergency authority to seize government
contractors to bring them all under military command in foreign battlespaces,
but the Supreme Court has established rules through a few cases, particularly
Youngstown Sheet & Tube Co. v. Sawyer,60 by which the question may be dependably resolved through analogy and distinction.
The Supreme Court struck down President Truman’s seizure of private
steel mills to avert a domestic labor strike during the Korean War.61 The
reasoning behind that decision, however, suggests that seizure of non-DoD
contractors in the foreign battlespace would not be similarly invalidated because the President’s commander-in-chief authority is coupled with expanded
presidential authority in foreign affairs.
A. The President’s Commander-in-Chief Authority
The Commander-in-Chief Clause allows the President to direct and regulate the military’s actions.62 What more the clause permits, however, is subject
to much debate. It is generally accepted that the clause permits the President
to do things necessary to preserve the Government in times of war,63 but
the more precise issues of what kinds of things the President may do and to
what degree remain unresolved. However, judicial authorities generally agree
that, pursuant to the Commander-in-Chief Clause, the President may utilize
inherent powers that would not be available on other occasions to respond
to emergencies in the battlespace.64 Furthermore, although hostilities in the
battlespace may be curtailed, that does not imply the end of a war or the end
of war powers.65
is not suggesting that the preexisting scholarship about presidential war and foreign affairs powers is without value; such work often presents reliable and insightful analysis.
60. 343 U.S. 579 (1952).
61. Id. at 589.
62. U.S. Const., art. II, § 2, cl. 1; see also Madsen v. Kinsella, 343 U.S. 341, 348 (1952);
Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).
63. The Brig Amy Warwick (The Prize Cases), 67 U.S. (2 Black) 635, 668 (1862) (“If a war
be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force . . . without waiting for any special legislative authority.”); see also Johnson v.
Eisentrager, 339 U.S. 763, 788 (1950) (“The first of the enumerated powers of the President
is that he shall be Commander-in-Chief of the Army and Navy of the United States. And, of
course, grant of war power includes all that is necessary and proper for carrying these powers
into execution.”).
64. See, e.g., The Prize Cases, 67 U.S. (2 Black) at 668 (explaining that the President lacks authority to initiate war but possesses authority to respond to enemy attack); United States v. Smith,
27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Paterson, J.) (regardless of statutory
authorization, it is “the duty . . . of the executive magistrate . . . to repel an invading foe”); see also
Jason Hart, To Preserve, Protect, and Defend: An Imminent Threat Approach to Resolving the Question
of Inherent Powers After ACLU v. NSA, 112 Penn. St. L. Rev. 315, 331–32 (2007).
65. See Woods v. Cloyd W. Miller Co., 333 U.S. 138, 140–41 (1948) (explaining that Congress’s
authority to regulate rent pursuant to wartime authority did not end with a presidential proclamation terminating World War II).
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As an extension of the President’s power to respond to battlespace emergencies, the President may issue an executive order seizing a private American
business that is essential to prosecution of the war.66 This action may be taken
independent of congressional approval and subject to judicial review for arbitrariness.67 It is by this means that military command of non-DoD contractors would be achieved—the President would issue an executive order to
seize non-DoD contractors deployed in the foreign battlespace in response
to emergencies.68 Although it rarely occurs, executive seizure of private businesses during wartime emergencies is not a new phenomenon.
The most notable case regarding executive seizure of private businesses is
Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure).69 President Truman faced
an imminent, nationwide strike of steelworkers two years into the Korean
War.70 He reacted in 1952 by issuing Executive Order Number 10,340, which
directed the Secretary of Commerce to seize eighty-seven major steel companies and operate them instead of permitting the strike to affect the military’s
need for steel.71
In response to the steel mills’ pursuit of injunctive and declaratory relief,
President Truman argued in federal court that his conduct was constitutional
and justified by the implied authority stemming from the aggregate of his
constitutional powers, particularly his powers as commander-in-chief.72 The
district court, however, rejected this argument.73 The Supreme Court subsequently affirmed the decision, but it is notable that only two of the six justices
comprising the majority rejected the President’s argument of inherent powers
to justify the seizures.74
There are many distinguishing factors between the facts underlying Steel
Seizure and the present-day situation of contractors in the battlespace with
regard to the President’s powers as commander-in-chief. These factors are
(1) the differences in the nature of the underlying threat facing the war effort,
(2) the differences in the causal relationship of the threat to the war effort, and
(3) the absence or presence of congressional authority.
66. Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193, 197–98 (W.D. Ky. 1944).
67. Id. at 198; see also DaCosta v. Laird, 471 F.2d 1146, 1156 (2d Cir. 1973) (suggesting that
the political question doctrine would not make radical presidential actions unreviewable by the
courts).
68. The scope of the executive order would only apply to contractors who base their principal
place of business in the United States. This Note does not suggest that the President has constitutional authority to seize private non-American businesses.
69. 343 U.S. 579 (1952).
70. Louis Fisher, Presidential War Power 101 (1995).
71. Exec. Order No. 10,340, 17 Fed. Reg. 3139, 3139 – 42 (Apr. 10, 1952).
72. Steel Seizure, 343 U.S. at 587.
73. Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 569, 573 (D.D.C. 1952), aff’d,
343 U.S. 579 (1952).
74. Steel Seizure, 343 U.S. at 589. Only Justices Black and Douglas believed that the President
lacks inherent authority to seize private businesses in response to wartime emergencies. The
other four concurring justices (Burton, Clark, Frankfurter, and Jackson) did not try to delimit the
President’s authority to act in future emergencies.
Military Command of Non-DoD Contractors
271
The nature of the underlying threat to the war effort is a critical factor
in determining whether the President may seize a private business.75 The
Supreme Court in Steel Seizure recognized that the President’s commanderin-chief powers extend broadly to “day-to-day fighting” but do not extend to
resolving labor strikes.76 The Court held that the threat of a labor dispute to
production of goods was “a job for the Nation’s lawmakers.”77
Analogously, battlespace contracting is sufficiently commercial in nature
such that Congress exercises some authority over it, but it is more intimately
linked to the war effort. Labor disputes are a common occurrence over which
the President usually does not intervene, but the President, as commanderin-chief, possesses much greater authority to deal with problems confronting the military78 and may intervene on a much more frequent basis. Today,
contractors and the military are sharing the battlespace, and any disruption
or inability to coordinate efforts would have a much more direct effect on the
military campaign. The President’s authority as commander-in-chief consequently extends to resolving the problem of poor coordination between commanders and contractors in the battlespace, especially when a failure to do so
could result in the inability to respond effectively to battlespace emergencies
like surprise enemy attacks.79
Furthermore, there is a distinction in the causal relationship of the threat
to the war effort. The labor strike following the Steel Seizure decision actually caused minimal, if any, disruption to the U.S. military in Korea.80
Furthermore, the Supreme Court stressed that the threat of a labor strike in
the United States was too far removed from the Korean battlespace for the
President’s commander-in-chief authority to bridge that gap.81
Today, the role that contractors play in the Afghani and Iraqi battlespaces
has been referred to as a “vital” one.82 In battlespace emergencies, combatant commanders have an immediate need to coordinate their operations with
the vital goods and services provided by non-DoD contractors. The threat of
poor commander-contractor coordination is more causally related to the war
effort because contractors and the military share the battlespace, whereas a
75. See id. at 587; see also id. at 637 (Jackson, J., concurring) (“[A]ny actual test of power is likely
to depend on the imperatives of events and contemporary imponderables . . . .”); Ken-Rad Tube &
Lamp Corp. v. Badeau, 55 F. Supp. 193, 198 (W.D. Ky. 1944).
76. See Steel Seizure, 343 U.S. at 587 (plurality opinion).
77. Id.
78. U.S. Const., art. II, § 2, cl. 1; see also Madsen v. Kinsella, 343 U.S. 341, 348 (1952);
Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).
79. See Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874) (explaining that the Commanderin-Chief Clause implies that it is “the President alone[ ] who is constitutionally invested with the
entire charge of hostile operations”).
80. Nat’l Production Auth., Dep’t of Commerce, Government Action in the Steel
Dispute 11 (1952).
81. See Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 587 (1952)
(acknowledging the “theater of war” to be an “expanding concept” but holding that a domestic
labor dispute does not fall within that concept).
82. Letter from Robert L. Schaefer, supra note 3, at 1.
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labor dispute halfway around the world did not have as immediate an impact
on the Korean War. This distinction justifies military command of non-DoD
contractors during battlespace emergencies.
Finally, President Truman acted without congressional authority when he
seized the steel mills in 1952. In Steel Seizure, Justice Jackson famously stated
that the President’s powers were at its “lowest ebb”83 because Congress had
actually rejected seizure of private businesses as a means of resolving labor
disputes prior to the issuance of President Truman’s executive order.84
In Dames & Moore v. Regan,85 the Supreme Court held that Congress had
demonstrated a long-standing practice of acquiescing to executive branch
prerogative in claim settlements involving sovereign nations. Furthermore,
the “general tenor” of relevant statutes implied Congress’s authorization of
the President’s actions.86 Such acquiescence led the Court to hold that the
President had implicit congressional authority to terminate all legal proceedings against Iran that were pending in federal courts in exchange for the release of hostages.87
Analogously, Congress has delegated much authority to the executive
branch in government contract administration. The FAR and supplemental regulations are executive branch rules with which Congress has limited
involvement in terms of formulation. Furthermore, Congress passed the
Authorization for Use of Military Force88 in 2001, which has been interpreted
by the Supreme Court to imply the “general tenor” that implies Congress’s
authorization of the President’s war efforts.89
Thus, Congress has broadly acquiesced authority to the executive branch
in the field of government contracts and with regard to the current War on
Terror, just as it analogously did in the context of Dames & Moore v. Regan.
This congressional acquiescence supplements the President’s emergency authority as commander-in-chief to bypass regulations governing command and
control of non-DoD contractors in the battlespace, especially when combined
with the President’s foreign affairs powers.
Justice Jackson suggested that congressional inertia, indifference, or acquiescence might enable, if not invite, independent presidential action.90 At
a minimum, Congress has not expressly denied authority to seize non-DoD
contractors in foreign battlespaces. Furthermore, Congress has provided
83. Steel Seizure, 343 U.S. at, 637–38 ( Jackson, J., concurring).
84. Id. at 586 (plurality opinion); see also 93 Cong. Rec. 3637– 45 (1947) (detailing Congress’s
consideration of executive seizure during debate of the Taft-Hartley Act).
85. 453 U.S. 654, 678–80 & n.8 (1980).
86. Id. at 678.
87. Id. at 681–82 & n.10.
88. Authorization for Use of Military Force, Pub. L. No. 107-40, § 2, 115 Stat. 224, 224
(2001).
89. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 517–18 (2004) (plurality opinion).
90. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 637 (1952) ( Jackson,
J., concurring).
Military Command of Non-DoD Contractors
273
much implicit authority through its acquiescence to the President to resolve
the coordination challenges of battlespace contracting. Justice Jackson had no
illusion that any decision by a court “can keep power in the hands of Congress
if . . . [Congress] is not wise and timely in meeting its problems.”91 This suggests that the President would have the authority to seize non-DoD contractors even if congressional authorization for such action was lacking when dire
battlespace conditions necessitate it.
Altogether, the present-day situation involving commander-contractor
coordination is distinguishable from the Supreme Court’s decision in Steel
Seizure because of (1) the differences in the nature of the underlying dispute
of that threat facing the President, (2) the differences in the causal relationship of the threat to the war effort, and (3) the presence of congressional
authority.
B. The President’s Foreign Affairs Authority
The Supreme Court has interpreted the Constitution to confer upon the
President broad authority, independent of Congress, in foreign affairs.92 In
Steel Seizure, Justice Jackson explained that the President’s powers are in their
“twilight” when he acts pursuant to his inherent authority without supplemental congressional authority.93 In this “twilight” category, there is much
give and take between express constitutional powers of the President and
those of Congress.94 However, the oft-cited Supreme Court case of United
States v. Curtiss-Wright Export Corp.95 establishes that the President’s twilight
authority is expanded in the area of foreign affairs.96
Steel Seizure involved a labor dispute that had the potential to cause proximate harm to the war, which was occurring on a different continent.97 The
Court noted that although the “theater of war” is an expanding concept, a
domestic labor dispute did not justify the President’s executive order.98 The
Commander-in-Chief Clause could not in itself lend sufficient authority for
the seizures of businesses operating on domestic soil.
The facts of Steel Seizure are readily distinguishable from today’s situation involving non-DoD contractors simply because the President would be
issuing an executive order that would be implemented in the foreign battlespace. Perhaps most compelling is the fact that the plaintiffs in Steel Seizure
conceded that seizure pursuant to the commander-in-chief power “can only
91. Id. at 654.
92. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936).
93. Steel Seizure, 343 U.S. at 637.
94. See id. (explaining the uncertain nature of the distribution of powers among the President
and Congress in the “twilight” zone).
95. 299 U.S. 304 (1936).
96. Id. at 319–20.
97. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 587 (1952) (plurality opinion).
98. Id.
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be exercised . . . in the area of conflict . . . .”99 Furthermore, Justice Jackson
emphasized the distinction between domestic and foreign affairs in his concurring opinion in that case.100 Therefore, the commander-in-chief powers
would come together with the President’s expanded authority in foreign affairs to collectively authorize seizure of non-DoD contractors for the purpose
of bringing them under military command during battlespace emergencies.
C. Implications—Changes, Equitable Adjustments, and Liability Issues
Creation of a temporary, unified command over DoD and non-DoD contractors by combatant commanders for the purpose of coordinating operations
in response to battlespace emergencies creates several issues of compensation
and liability. There are mechanisms in place to deal with these issues, but
it may be possible that the command of non-DoD contractors by executive
order will present some novel issues to be resolved.
Generally, contractors may submit requests for equitable adjustment (REAs)
when they are told by a CO to perform work that was not originally anticipated
or required.101 Such requests are often granted by the CO and paid out by the
contracting department or agency because it was the CO who requested and
authorized the additional work. However, if the President directed DoD command of non-DoD contractors, that would presumably not be an action on
behalf of the contracting agency. A private security company that was originally
contracted by the Department of State may still submit an REA for work performed under direction of combatant commanders pursuant to an executive
order creating unified command, but there may be an issue regarding who will
pay for the costs of delay and extra work. Under such a hypothetical, reasonable
arguments would suggest that the DoD, Department of State, or some contingency fund would be responsible for making payment to the contractor.
Secondly, contractors who are commanded by combatant commanders
may be called on to perform work outside the scope of their contract. This is
probably not a problem in terms of compensation because the authority for
the work comes from the President’s executive order. However, performance
of work outside the scope of one’s contract could involve performance of work
that a contractor is not as skilled to perform, or performance of work in an
area of the battlespace with which it is not familiar. This could lead to issues
of legal liability if the work causes injury to others or damage to property.102
99. Alan F. Westin, The Anatomy of a Constitutional Law Case: Youngstown Sheet
and Tube Co. v. Sawyer 34 (1958).
100. Steel Seizure, 343 U.S. at 642 (Jackson, J., concurring).
101. FAR 52.243-1; DFARS 252.217-7003(b)(3).
102. This Note does not suggest that contractors, even under emergency command of combatant commanders, should perform “inherently governmental” functions in violation of federal
law. An inherently governmental function is “a function that is so intimately related to the public interest as to require performance by Federal Government employees.” Federal Activities
Inventory Reform Act of 1998, Pub. L. No. 105-270, 112 Stat. 2382 (codified at 31 U.S.C. § 501
(2000)).
Military Command of Non-DoD Contractors
275
Also, non-DoD contractors may be deterred from working in the battlespace
if they become subject to the Geneva Conventions and other laws of armed
conflict.103 Such laws may apply to the contractors once brought under military command by executive order. The legal framework for such issues is still
being developed,104 but it is possible that contractors will not follow combatant
commanders’ orders for fear of legal liability even if the President exercised
proper constitutional authority to bring them under military command.
Thus, presidential authority to bring non-DoD contractors within military
command during foreign battlespace emergencies creates some issues in need
of resolution. Changes to the scope of contracted work are unlikely to present
a major issue, but the source of payment may be questioned when the change
orders are coming from someone (i.e., a military commander) who is not a
part of the contracting agency (e.g., the Department of State). Furthermore,
the unresolved issue of contractor liability under laws of war will continue to
pose a threat to contractor employees’ willingness to cooperate with combatant commanders.
VI. CONCLUSION
The growing presence of government contractors in the foreign battlespace
implies that combatant commanders will increasingly find the need to coordinate military strategies with contractors’ activities. This need is especially
critical in battlespace emergencies such as sudden enemy attacks or natural
disasters. Combatant commanders already possess emergency authority to
command and control DoD contractors during such crises, but preexisting
proposals to create similar command authority over non-DoD contractors are
either flawed or unlikely to overcome intense political resistance.
This is of little concern, however, because the President possesses inherent
authority to bring non-DoD contractors under military command. Such action in response to battlespace emergencies is authorized by the Constitution’s
Commander-in-Chief Clause and by the President’s expanded authority in
foreign affairs as interpreted by the courts. Thus, when battlespace emergencies arise, combatant commanders will be able to exercise unified command
over all forces, armed and contracted, enabling them to respond with a coordinated effort.
103. See, e.g., Vernon, supra note 18, at 406–07 (explaining the uncertainty of the applicability
of the Geneva Conventions to battlespace contractors).
104. See, e.g., Ben Davidson, Note, Liability on the Battlefield: Adjudicating Tort Suits Brought by
Soldiers Against Military Contractors, 37 Pub. Cont. L.J. 803, 804–05 (2008); see also Adelicia Cliffe
Taylor, Note, Government Contractors: Above the Law of War? 35 Pub. Cont. L.J. 281, 286 (2006)
(explaining the ambiguity regarding the scope of the general contractor defense in the context of
the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (the SAFETY Act),
6 U.S.C. §§ 441–444 (2006)).
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