Archive for category Publications
Here it is. If you want some light reading, this is the report for you. lol Actually, the more folks that can read this thing, the more input I can get about it. If you find anything wrong with the report, or disagree with one of the findings, then definitely let the viewing public know about it in the comments below.
I would also like to commend the members of this commission for taking on such a daunting task and coming up with a product. Now the key is to learn from it, and make the necessary adjustments. We have enough reports and information to build an excellent contingency contracting program. Now it just takes leadership and resolve to act on those lessons learned.
I also wanted to comment on something that I think is pretty telling. At no time did the commission ever make an effort to contact me or this blog. Although I know that a good portion of my readership comes from the beltway and I have to assume that the various researchers tasked with helping the CWC have come across this blog. But no one has come forward to talk, and that is really too bad. What are you scared of?
For that matter, I haven’t seen any CWC folks reach out on the various forums that this industry congregates on, and that is odd to me as well. Although I am sure the CWC has reached out to the various companies and associations, it just seems that they have completely avoided talking to the very group that their report would impact.
Contractors have been killed and wounded in this war in great numbers, and they will continue to make that sacrifice. Contractors also have a huge presence in today’s war zones, and thousands have served over the years. Arguably, this highly flexible civilian army is a strategic asset to this nation. If it isn’t, then implement the draft or spend the money on recruitment to bring everything under military control.
I highly doubt that politicians will ever have the political will to implement a draft, or to convince tax payers to raise a standing army of such size and nature. The point is, is that contractors are here to stay and this nation cannot go to war without us. So to not reach out to this industry and acknowledge this sacrifice and contribution, is just wrong.-Matt
This is surprising, because from what I can tell, Indian ship owners are able to contract with whatever PSC they want. Which means Indian ship owners could tap into the already vibrant maritime security market. This is great news if true. I posted the guidelines in my Scribd if anyone is curious, and I could not find anything in them that said these PSC’s had to be Indian owned.
A couple of months back I posted a deal about the Indian government warming up to the idea of allowing their ship owners to use armed guards. But I got the impression in that article that they would only allow retired Indian naval officers to work on these vessels? Now I am sure Indian shipping companies would probably prefer contracting with Indian PSC’s, but hopefully with these new guidelines, this will help them to realize they have a choice–that’s if they would like to go outside of the market of Indian PSC’s.-Matt
Ships with Indian crew can have armed guards
Aug 30 2011
The ministry of shipping on Monday issued guidelines allowing ships with Indian crew to deploy armed guards in a bid to combat piracy in the Gulf of Aden. The move comes on the back of recommendations from the inter-ministerial group (IMG) of officers constituted to handle the hostage situation on hijacked ships and also suggest preventive measures.
It has been found that about 35 per cent of the ship transiting in these waters deploy armed security guards and that the pirates generally don’t attack ships with armed guards on board, an official release said on Monday. So far, 120 Somalian pirates have been apprehended by India as on date.
As per the new guidelines, ship owners are allowed to engage private maritime security companies (PMSC) through a proper selection procedure. In line with these, all Indian ships visiting Indian ports are to furnish details of security personnel on board, the firearms carried by them and the details of licence issued, etc, to the port authority, customs, Coast Guard and the Navy. Foreign merchant vessels visiting Indian ports with security guards are also required to follow similar procedure, as per the guidelines.
Publications: 32 CFR Part 159 Private Security Contractors Operating In Contingency Operations
Aug 15
This is important to put out there just because there might be some little tweaks to the way things were usually done. So what I would like to do is put this out there, and if anyone has any commentary on the document, you can say so in the comments section. And because FJ gets top search in Google for stuff like this, I guarantee that folks will read what you have to say if they are interested in the document. Here is a snippet of the Summary:
This Rule establishes policy, assigns responsibilities and provides procedures for the regulation of the selection, accountability, training, equipping, and conduct of personnel performing private security functions under a covered contract during contingency operations, combat operations or other significant military operations. It also assigns responsibilities and establishes procedures for incident reporting, use of and accountability for equipment, rules for the use of force, and a process for administrative action or the removal, as appropriate, of PSCs and PSC personnel. For the Department of Defense, this Rule supplements DoD Instruction 3020.41, “Contractor Personnel Authorized to Accompany the U.S. Armed Forces,” which provides guidance for all DoD contractors operating in contingency operations.Show citation box
This Rule was published as an Interim Final Rule on July 17, 2009 because there was insufficient policy and guidance regulating the actions of DoD and other governmental PSCs and their movements in operational areas. This Rule ensures compliance with laws and regulations pertaining to Inherently Governmental functions, and ensures proper performance by armed contractors.
Check it out and let me know what you think? I thought the comments and answers in this document were interesting. Although my first critique here is that I had no idea about the comments process, and that they would actually answer them in the document? I could have given a heads up here and on Facebook about this document and encouraged them to ask for clarification about rules. After all, it is our industry this thing impacts. As other articles and posts come up about this publication, I will make the edit. -Matt
Edit: 8/11/2011– DOD finalizes requirements for use of private security firms, by Jill Aitoro
Thanks to David Isenberg for pointing out this publication, and you can find his review of the document here. Probably the big one for me that just continues to boggle the mind, is that the government has known about it’s deficiencies in contractor oversight and yet they continue to not apply the proper attention to this.
Here is the quote from Dave’s assessment, and I think this says it all:
To get a sense of how nothing has changed note that in April 2009, SIGIR reported that 11 of 27 CORs surveyed stated their COR training did not fully prepare them to oversee the TWISS contractors. In the new audit 11 of 28 CORs SIGIR surveyed stated their training did not prepare them to perform COR duties on the TWISS contracts.
This is unacceptable. It truly is the definition of insanity when you continue to do the same thing over and over again, and expect to get different results. And to add to this, I continue to get emails from folks on the TWISS contracts describing deplorable business practices of the companies involved. Most contractors consider TWISS gigs as the bottom of the barrel contracting in the war, and the attrition rate is very high. I tell them to contact the SIGIR and anyone else that will listen, and often times their concerns fall on deaf ears. Or in this case, incompetent ears.
Listen, the way this should work is that a COR should be actively seeking out the input and feedback of those who work in this program, if they want to find out any wrong doing on the contract. And then once they find out about this wrong doing, then with the full power and weight of the government, they should have the ability to put that company in check. If there is no teeth within the system, then companies will get away with whatever they want to do on these contracts.
Furthermore, I have yet to hear anything from SIGIR or any CORs out there? I would think that any COR that actually cares about what is going on with the contract, or lacked certainly knowledge about how things work, would actually take the time to reach out to guys like myself or David Isenberg. Or better yet, get out of your office, and get on the ground and talk it up with the Ugandans and other contractors on these sites. Listen to their concerns, and act on it. If it is your job to manage and monitor these contracts, then do not make excuses.
Likewise, the DMCA needs to realize that you just don’t send guys out to do this work, and not give them everything they need to be successful. It’s called taking care of your people, and if they are asking for training or feel ill-prepared for the job, then the DMCA needs to do the right thing and make that happen. Because if the CORs are not able to do their job, then now you have contracts that become out of control, and security could be hurt by it. You have incidents where entire guard forces just don’t show up to work, because the company is playing games.
Another thing I would like to throw out there, once again. These companies that bid and won the contracts for TWISS, did so under the LPTA concept or lowest priced, technically acceptable contracting. I call it a race to the bottom, and I have totally protested such methods. It is just dumb, and it causes more problems than it is worth. But if the government is going to continue using LPTA, then it has to have a strong CORs force to keep on eye on this beast they created. The security of these camps depends on the effectiveness of this contract, the US tax payer demands a good value for their dollar spent, and the men and women on these TWISS contracts need to know that someone is in their corner looking out for them.
And then there is the companies?…..Well they are just big dumb animals anyways. They will do whatever is required, but if no one is tending to that cow, then that thing is going to trample all over the place and do what it wants. The buyer (the US government) needs to exercise it’s power as the consumer of these services, and demand excellence and a good service. But if you have no one watching over those services, or those that are watching those services have no idea what to look for, then that company is just going to do whatever it wants.
Finally, this is a message to law makers like Jan Schakowsky or Bernie Sanders. Instead of attacking private industry, how about attacking those government agencies tasked with managing these contracts? Or to put it in simpler terms, if your dairy cow escaped the pasture and ruined the neighbor’s flowers, do you kill that cow, or do you punish the rancher in charge of managing that cow? I mention these two law makers because they are behind an effort to destroy a strategic asset of the US called ‘ private security contractors during times of war’. Or in other words, they want to kill the dairy cow, because they suck at keeping their ranchers in line. -Matt
Excellent paper and I recommend checking out the whole thing with the provided link below. The section that I was particularly interested in is the International Law portion. I continue to hear arguments against the Letter of Marque, and no one really has a firm legal foundation for their argument. Or at least that’s what it seems to me. It is just assumed or the ‘opinio juris’ is that issuing Letters of Marque is a no go, and this paper clearly identifies the counter argument to this belief.
So that is why I posted this, and I hope that the legal counsels of countries that are looking for arguments for firing up their LoM or introducing legislation for such a thing, will have some resource to draw from. And what is really nice with legal papers like this, is they are heavily sourced and footnoted, just so they can back up their arguments. The footnotes alone are worth reading, just because they indicate how much the LoM has been talked about in legal circles. Lot’s of opinions, and this is a good collection of them.
In this particular section I posted below, the author identifies two reasons why states believe they are prohibited from privateering and issuing letters of marque, based on their interpretation of the Declaration of Paris and of International Law. One is opinio juris and the other is state practice that influences this interpretation.
State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.
One of the reasons why I started the Letter of Marque category is to remind states of the practice of privateering, and to remind those who are establishing a legal basis for the act, that countries like the US have a history of consistent conduct when using privateers(it was used in multiple conflicts). And because the US is not a signatory of the Declaration of Paris, then that is interpreted as an ‘objection’ to banning the practice. This is key if you are to prove a state’s ‘belief’, and the fact that the LoM still exists in the US’s most cherished legal document called the Constitution, then we can certainly deduct the US ‘opinio juris’.
The author made this legal argument very well. So if the US could care less about the Declaration of Paris, then why do these other countries continue to hang on to a ‘belief’ that they have to abide by this document? Especially as their navies continue to be downgraded by reduced budgets, or those navies get over extended with other commitments. And especially as piracy is attacking the very life blood of these countries or commerce. National interest should be focused on doing whatever it takes to stop this, and the LoM is just one tool to help with that endeavor.
Finally, I would like to also point out the fact that this was written by a ‘naval Surface Warfare Officer’ and a ‘Judge Advocate student at the Naval Justice School in Newport, R.I’. That indicates to me a paper influenced by naval military history and thought, and the legalities behind implementing the LoM in modern times. It is also a paper that can show the way for how to implement the LoM to help in the war against today’s virus called piracy. Very cool and check it out. -Matt
Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates
Lieutenant Todd Emerson Hutchins
June 9, 2011
(this is just one section of the paper)
THE PRESENT STATE OF LETTERS OF MARQUE IN INTERNATIONAL LAW AND AMERICAN JURISPRUDENCE
Many contemporary international law scholars contend that the Paris Declaration “by formal accession or tacit acceptance by all the powers [has become] an established part of the general body of [customary] international law.”273 Proponents of a broad prohibition on privateering allege that customary international law has formed since the Paris Declaration. “[I]nternational custom, as evidence of a general practice accepted as law” is recognized as a source of international law under Article 38 of the International Court of Justice Statute.274 It “consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.”275 The two key elements are state practice and opinio juris.276 State practice refers to “consistent conduct,” while opinio juris means States follow the rule out of “belief” that they are legally obligated to behave in a certain manner.277 Admittedly, the distinction is frustrating “because it is difficult to determine what states believe as opposed to what they say.”278
