At the end of June, South Dakota Governor Kristi Noem announced that she would send members of the state’s National Guard to the US-Mexican border in Texas. Texas needed South Dakota’s National Guard to “respond to ongoing violations of state and federal law by illegal aliens crossing the unsecured border,” Noem said.
She also revealed that a Republican donor, Willis Long, would fund the deployment. After the announcement, Noem’s plan received an avalanche of criticism. In particular the funding has led to some concerns about whether Noem is privatizing the National Guard.
Privatizing the military to own the libs. https://t.co/aBnGyCl3MR
— Charlie Sykes (@SykesCharlie) June 29, 2021
While the move may be particularly egregious, the military and private sector intersection is technically not new. The issues with the US using private military contractors (PMCs), such as Blackwater, have been covered extensively.
Still, the private funding of the National Guard in this instance has a significant distinction from the Federal Government using funds appropriated for defense purposes to PMCs. Nonetheless, the similarities of private sector involvement in military affairs, and the legal and moral ambiguities of both, should give Americans pause.
The National Guard Issue
Noem is not the only governor to send the National Guard to the border. Republican Arizona Governor Doug Ducey and Republican Texas Governor Greg Abbott requested that all 48 other states send “reinforcements” to help their states with undocumented immigrants crossing the border
As a result, several Republican governors from states such as Iowa and Arkansas sent troops to the border. However, South Dakota appears to be the only state accepting a private donation to fund the deployment.
In the aftermath of January 6, the National Guard announced it could not accept donations. The declaration came after people started sharing images of National Guardsmen having to sleep on the ground in the Capitol and then tried to donate bedding.
Video shows National Guard troops sleeping in the hallways of the U.S. Capitol. The National Guard will remain on the grounds to protect against possible attacks leading up to Joe Biden’s inauguration. https://t.co/KS1mBx3qrc pic.twitter.com/jDL5bJXzCD
— NBC4 Washington (@nbcwashington) January 13, 2021
Importantly, the National Guard specifically said they could not accept donations because they were “not logistically able to accept donations of any kind,” meaning they did not preclude accepting donations for legal reasons.
Several pieces looked at whether Noem’s funding plan was legal. Noem and her political associates have argued the funding is legal because South Dakota’s budget largely funds the state’s National Guard and the state’s law allows the governor to accept donations to help fund certain state initiatives.
Additionally, a spokesman for the National Guard Association of the United States made the point that the National Guard used to largely run on donations in colonial times.
Still, prominent Constitutional Law Professor Stephen Vladeck stressed that even if nothing makes Noem’s move outright illegal, there is no clear precedent for allowing this kind of financing. Furthermore, several Democrat members of Congress have called on the Pentagon clarify the legality of the funding.
Where Private Military Contractors Come In
From a legal standpoint, the US paying money to PMCs for military work is not an apt comparison to the situation with the South Dakota National Guard. However, the two cases create a similar uneasiness of the US’ military authority being subject to private interests.
Just as a partisan billionaire funded South Dakota’s National Guard deployment to Texas, ideological billionaire Erik Prince has founded and operated several PMC groups.
Even beyond Prince, PMC companies are among the biggest donors to members of Congress. Furthermore, there have been several revelations about how PMC companies use a multitude of lobbying strategies to influence US defense policy.
Unlike the situation in South Dakota, there is precedent for PMCs because the US has a long history of using PMCs. The whole idea of a PMC is to provide “support” to the US military, so some might argue that going back to the days of the Revolutionary War, when private citizens and businesses supported US forces, these supporters qualified as PMCs.
Regardless, the use of PMCs increased in the 1990s and 2000s, when the US cut its military forces after the Cold War and then when it invaded Afghanistan and Iraq. Generally, the US government can hire PCMs as long as they engage in activities that are not considered “inherently governmental.”
However, the use of PMCs has raised both legal and moral questions.
PMCs can blur the line between their rightful role as vendors supporting the US military and mercenaries, which are outlawed under international and US law. Additionally, in Iraq in particular, when PMCs seemed to break international law, host-nation law, US civilian law, and US military law by attacking civilians, all except military law lacked the ability to hold PMCs accountable.
Yet, there have been questions about whether the Uniform Code of Military Justice does completely govern PMCs. Moreover, many groups and scholars have voiced concern over PCM’s lack of transparency and accountability due to their private nature.
There are plenty of reasons to be concerned about the situation in South Dakota and what it may lead to. The funding of the National Guard largely came about by the decision of Noem and a wealthy donor.
However, even though PMCs have a legal framework to operate under that has been crafted by many different policy actors over several decades, many of the concerns people have raised about what South Dakota’s situation could lead to are a reality with PMCs.
Todd Carney is a recent graduate of Harvard Law School and writer based in Washington, DC. The views in this piece are his alone and do not reflect the views of his employer.
The views and opinions expressed here are those of the author and do not necessarily reflect the editorial position of The Defense Post.
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