This week I visited the Kennedy School to attend a symposium on Security Sector Reform (SSR). SSR aims to bring organizations with the authority to use or order the use of force better in line with the rule of law and the needs of ordinary people.
The speakers at the symposium were particularly concerned with how to make security forces – police, peacekeepers, soldiers, the judiciary – more accountable to women’s needs, so that for example private military contractors wouldn’t get off scot free after trafficking women and girls in Kosovo. And they were particularly concerned with how human rights advocates could better access security institutions so as to press claims on behalf of individual citizens.
All this talk about citizen input and private contractors in particular got me thinking about the DoD’s rule-making process. Though no one I spoke to at the Kennedy school seemed aware of it, the Federal Times reported Tuesday that the DoD has proposed a new rule regarding private military contractors in the hire of the US government: that they be required to train in the laws of war before deployment.
Now, you might very well question whether such a rule goes far enough in governing the conduct of these individuals. (Gender-mainstreaming advocates up at the Kennedy School, for example, would want to know whether the training will explicitly incorporate information on rape and sexual exploitation).
The important thing, and what many people seem not to understand, is that if you have such questions or wish to suggest modifications to the rule, you can write the DoD and tell them so, and they are required by law to consider your point of view.
Yes, the DoD is a Federal Agency, and like other regulatory agencies that translate law into specific rules governing the conduct of various actors under US jurisdiction, the DoD is required under the Administrative Procedures Act of 1946 to notify the public of proposed rules and entertain public comment about their content.
This “notice and comment” process is arguably the most truly democratic, deliberative process in America today (outside of the caucus system). It is, essentially, town hall meetings on issues at a federal level. Federal civil servants are required not only to receive public comments, but actually to read them and consider them before finalizing a rule.
The process should be quite familiar to anyone who follows environmental or health policy – citizens are frequently asked by special interest groups to send comments in to the Fish and Wildlife Service when it considers whether to put polar bears on the endangered species list, to the Food and Drug Administration when it considers whether food containing GMOs should be labed “Organic,” to the Federal Communications Commission when it considers censorship rules for television, or the Department of Transportation when it considers whether to increase the CAFÉ standards for automobiles.
But very few American citizens seem to realize that the same process applies to the US national security sector. In the past year, for example, the DoD has proposed or finalized rules regarding radio frequency identification tags on supply shipments, the implementation of the Freedom of Information Act with regard to classified information, and what rules apply to private military contractors in stability and support operations.
The public has the opportunity to affect these rules. But unlike rule-makings in other issue areas, defense rules seldom garner much public comment. For example, the 2005 rule governing civilian contractors deploying with the military in Iraq (where it was determined that they should be allowed to carry weapons, though they remain civilians in terms of the laws of war) received only 22 public responses during the “notice and comment” period. Compare this to 282,992 comments submitted to the Fish and Wildlife Service over whether to take the grey wolf off the endangered species list, and 536,967 submitted to the EPA over whether mercury should be considered a hazardous air pollutant.
There is no reason why US citizens shouldn’t take as active a role in communicating to the security sector our expectations regarding important issues such as how to hold private military contractors accountable.
To review the proposed rule on training PMCs in the Geneva Conventions, go to the Federal Register.
To submit comments to the DoD on this rule, email email@example.com and include DFARS Case 2006-D035 in the subject line of the message, or visit the federal government’s erulemaking portal here.