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Reining in the “Third Path”: Rethinking the War Powers Resolution and Private Security Contractors


Brian T. Warren


July 21, 2023

From the American Revolution to the War in Afghanistan, the United States has hired private contractors to perform a myriad of tasks, from feeding the troops to researching hypersonic missile defense systems. Following the collapse of the Soviet Union, however, the nature of work performed by these contractors began to shift. No longer were contractors relegated solely to unarmed tasks. From the jungles of Colombia to the deserts of Iraq, armed contractors—known as Private Security Contractors (PSCs)—have guarded American military bases, protected heads of state, assaulted enemy compounds, and more.

Using PSCs is not without risk. Incidents like the Nisour Square massacre highlight the devastation that PSCs can cause. While advocates point to a seemingly robust web of legal restraints that constrain the worst excesses of PSC abuse, this Note argues that these checks are ultimately inadequate. Moreover, PSCs escape one of the strongest protections that would limit their use: the War Powers Resolution. The War Powers Resolution is a pioneering piece of legislation meant to constrain the unfettered zeal of executive authority. However, because the Resolution applies only to the “U.S. Armed Forces,” and not PSCs, the President may deploy PSCs for long periods of time without meaningful congressional oversight.

This Note proposes that Congress should expand the War Powers Resolution to incorporate PSCs by explicitly adding the phrase “Private Security Contractors” to the statute. By including PSCs, Congress will have more legislative tools to monitor and potentially restrict the President’s use of PSCs. Requiring the President to consult, report, and notify Congress when deploying PSCs allows Congress to exert pressure on the President to avoid any unwarranted use and prevent potential future catastrophe.


Brian T. Warren, Reining in the “Third Path”: Rethinking the War Powers Resolution and Private Security Contractors, 80 Wash. & Lee L. Rev. 1013 (2023).