I am not a lawyer. I am a citizen. As a citizen, I vote for a political party at election time hoping that the party I vote for wins. The party that wins has a mandate from the voters to govern. We all generally accept that even if I didn't vote for the winning party, I will respect the fact that this party has a mandate to govern. In the process of governing, this party can hire individuals to perform certain tasks and functions on behalf of the government. One of those functions is the justice system. The government can hire police who then have the authority to arrest a person if the police have evidence that this person has committed a crime. If convicted of breaking the law, a person may be locked up in a prison and guarded by other individuals hired by the government for that purpose. If you assault a police officer or guard-- unless, as is sometimes likely, you have a good reason-- you are essentially assaulting a legitimate representative of the government. These representatives of the government have the authority to use physical force if necessary to enforce the law.
They swear to it. And they swear that they will serve the constitution and the laws of the state -- not the will of any political party or business or church.
I have never understood how such authority can be transferred to a private company. I have never accepted that this can be done, that it can be legitimate in the strict sense of the word, or that we owe the slightest respect to the "authority" supposedly held by any such individual.
In fact, I think I do understand. It is a lie.
In my humble opinion, a private company cannot be given the authority that is normally vested in the government. A private company cannot have the legitimacy to enforce public laws and statutes because a private company is fundamentally exactly what it is: a private company. It does not have a public mandate. It was not elected. It does not swear allegiance to the constitution or to the laws of the nation. The employees of this company cannot be responsible both to their employer and to the government. They are paid to provide a profit-making service to their employer. They are not paid to "enforce the law". That is ridiculous-- they don't get fired if the law isn't enforced. They get fired if they fail to help the company make a profit. They are not accountable to elected representatives of the people: they are accountable to shareholders. If an employee of one of these companies violates the constitution by using force to detain a citizen, he doesn't get fired; he gets outsourced.
In my opinion, the government cannot contract out it's own mandate; it cannot sell it's legitimacy. It cannot attach it's authority to anybody but itself. No moreso than it can sell the nation out from under your feet to the highest bidder, pay itself huge bonuses, and retire to the Cayman Islands.
A government cannot outsource it's own constitutional accountability.
Imagine, if you will, that an election is held, and, say, George Bush wins the election. He has a mandate to govern. Suppose he says, now that I'm president, I'm going to appoint James Dobson to the presidency. And then suppose James Dobson goes around issuing orders, raising taxes, dumping people off welfare and medicare, and appointing justices to the Supreme Court, and ordering the arrest of witches. Would a court uphold a trial of a witch because James Dobson is the president of the United States and has the authority to order the arrest of witches? No. Not, of course, without a good deal of corruption.
In my opinion, anyone imprisoned in a privately owned facility that the government has contracted with to hold prisoners, has a legitimate right to use force against the staff of that prison, for the staff are kidnappers. A prisoner could rightfully say, I will respect the right of a police officer or a duly appointed state official to arrest and detain me. You are not a police officer. You may not use force against me. If you do, I will charge you with assault.
We do "allow" soldiers to kill during wartime. You could argue that that right is dubious as well, but let's humour the militarists for a moment and accept that there can be a legitimacy to a "war", like, say Iraq (which was not an act of self-defense). What authority to kill they do have comes solely from the fact that they are representative of a nation that is legally at war with another country. No business entity can be in such a state. There is no legal framework for a business to declare war on a country. If a business did declare war on a country, it's leaders and owners would be arrested as... .terrorists, actually. At the very least, they would be regarded as criminals.
Do the privately contracted individuals carrying out military duties in Afghanistan have any legitimacy? How can they possibly have the right to kill people when they do not represent the government?
You probably think, I'm sure the top legal minds in the country have had a look at this issue before the government went ahead and started contracting out all these services and functions. You might be wrong. The move to privatize prisons and war and other goverment functions was largely driven by (corrupt) political ideology. (I say "corrupt" because, over and over again, this outsourcing ends up being a financial bonanza for well-connected private firms and don't save the taxpayer any money at all-- look at Blackwater.)
I would also note that the Supreme Court in the U.S. no longer has much authority itself: it's dominated by a bunch of hack Republican appointees who virtually never vote against the party line.
