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05/28/2006

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N.E.Hatfield

I wouldn't say that to an Irishman in the Irish Brigade in a dark alley in New York. Or a Legionaire in a dark alley in Paris or a Gurkha in London. Don't forget there is something called Esprit de Corps that transcends Nationality. ;)

John Noble

Your attribution of the gap between the payroll cost of soldiers and private security workers to the fact that "for many soldiers the military is their career, while most of the contract security personnel in Iraq are temporary workers," strikes me as counter-intuitive. In most industries, it's the other way around. And while men and women who make the military a career enjoy generous benefits at retirement, most enlistees leave on their own after one or two tours, and most of the rest are weeded out by the military's "up or out" policy.

It seems to me that private security is setting FMV, and the gap reflects a distortion that would correct if contractors competed with the military for enlistments and reinlistments in the unskilled labor market. But the government tilts the market to its advantage by contract requirements that limit private sector competition to the market for /experienced/ unskilled labor -- the retired soldiers who already turned down the government's last and best offer.

Whatever the efficiencies of privatization, they can't match the government's unique ability to raise capital; control the supply and cost of unskilled labor; and avoid the liability costs associated with a very risky enterprise by barring negligence claims for injuries suffered by soldiers in the line of duty, Feres v. United States, 340 U.S. 135, and shifting the cost of shared negligence to the competition under Stencel Aero Eng'g v. U.S., 431 U.S. 666.

John Noble

anonymous coward

Although the points are well taken the examples of mercenaries are none of them well chosen. George was still ruler in Hesse as Victoria, a woman, later could not be (Salish law). Thus the Hessians were household troops of the head of state - they were mercenary only in the sense that the laws of Hesse required George to pay them from his own purse (or English funds) when the soldiers were used in a diversion. That is Hesse would cover the cost of its own army when used in the interests of Hesse - otherwise not. Hessian soldiers were paid strictly as elements of the Hessian forces and not the sort of excess current wage but without long term committment commonly associated with the somewhat pejorative term mercenary. The Swiss Guard - all good catholics and much more - are no more mercenaries in any commonly accepted usage than the Italian police who also work for the Vatican as a foreign state in Italy. Rather the Swiss Guards are a military order - does one speak of the Jesuits as mercenaries? Notice that much of the logistic tail of the Swiss Guards is furnished by a woman's order.

r.friedman

Hope this is not too far off-topic, but I want to comment on Posner's speech about the legitimacy of surveillance programs shown on C-SPAN Saturday 6/3.
First, I was shocked at the nakedly result-oriented jurisprudence. Do we really expect our judges to act as philosopher kings, decide what would be a desirable outcome, and then see whether they can reach it by appropriately chopping legislation, precedent and logic? No. While am sufficiently legal-realistic to believe that judges do chop facts and logic to reach results they desire, I do not see that as a normative statement.
Second, Posner says he tried to read FISA but could not make sense of it. Of course, we cannot trust his reading because FISA stands in the way of reaching his desired position and must be chopped away. But let us assume for the moment that Congress in FISA and the contemporaneous wiretap legislation intended to occupy the entire subject matter of domestically occurring interception of communications, with wiretap procedures required for US persons and FISA warrants for non-US persons. How can Posner's method give effect to such a congressional action when he doesn't even look at the law until he's already decided that national security surveillance is desirable and incompatible with what Congress intended?
Third, I contend that what I assumed in the previous paragraph is in fact what happened. Posner complains that the wartime provisions of FISA are illogical, but again, because of his need to chop, he refuses to consider them in light of the contemporaneous War Powers Act. Certainly Congress knew about the possibility of Congress being dispersed or destroyed by the onset of a war, this was after all during the period of mutually assured destruction. And certainly Congress knew about terrorism, already dealing with the PLO and airline hijacking as instances of it. The founding fathers distrusted a standing army because they feared it would be turned against the people. And now that it is being so used, Posner cites it as an example of the commander-in-chief power trumping that of Congress.
Fourth, Posner contends that people are willing to give up their birthright of privacy for the pottage of web-enabled shopping. Tell that to Justice Douglas. When I was growing up, I was taught that the difference between our civil rights as natural rights approach and the European civil rights as gifts of the state approach could be seen in that we had no internal passports that we could be required to show. What about the experience of East Germany? Everybody knew they were being watched, does that mean that they liked it or they were entirely sanguine when the release of the Stasi records revealed which of their neighbors had been informing on them? We do not want to live in a police state regardless of whether Posner consders we have a legitimate expectation of privacy to resist it. Posner complains about having to specify how a person is connected to a terrorist organization before getting a wiretap whose purpose is to find out whether the person is so connected. But Congress considered this a repulsve police state practice and rejected it.
Fifth, Posner is completely disingenuous about what is to be done with adherents of terrorist organizations. He says that information gathered by legally unauthorized intelligence means should not be used for proceedings in the civilian courts. (Of course, he is ahistorical about what "intelligence" has been gathered and against whom. Haven't we already heard child molesters being called terrorists who terrorize our children?) Then he refers to the World War II experience where captured German spies were either turned into double agents or "treated as unlawful combatants" i.e. shot after trial before a military commission. Perhaps he also allowed for deportation (goodbye Rosa Luxemburg, citizen though you are). Maybe if he read the Combatant Status Review summaries he would understand why the Guantanamo detainees should not already have been shot.
Posner may resemble Mr. Burns, but Mr. Burns is a kinder, gentler guy. He buys his Congressmen just like any other good businessman, he doesn't cut the cloth of the law to suit his taste.

Edward Bernstein

The true temps here are those from National Guard Units. That was in fact their primary intended purpose. Contracting out what the guard can do is foolish and costly.

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