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Publications: 32 CFR Part 159 Private Security Contractors Operating In Contingency Operations

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

 

32 CFR Part 159 Private Security Contractors (PSCs) Operating in Contingency Operations, Combat Operations …

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Publications: Claire Lee Chennault–Theorist And Campaign Planner, By Major John M Kelley

I wanted to post this as a resource for anyone studying private military forces and their uses by nations. Claire Lee Chennault led the company called the American Volunteer Group or AVG in China against the Japanese after the bombing of Pearl Harbor, all with US blessing. His small force of mercenary pilots fought for 600 dollars a month (which was two to three times more than their military pay) and 500 dollars per Japanese aircraft they shot down.(offense industry)

What makes Claire significant is his theory of war, and the US military’s desire not to heed his theories. Matter of fact, it was this clash that led to Claire leaving the military, and later going to China with the blessings of the US to advise China’s fledgling air force. Claire in essence had an outlet to apply his theories of war, and not only did he advise the Chinese, but raised a mercenary army to assist.

This small mercenary army of aviators took on the entire Japanese air force at that time, and it was Claire’s planning and strategic thinking that evened the odds against the Japanese. He was certainly able to prove his theories of air power as soon as Japan bombed Pearl Harbor and brought the US into outright war with Japan. AVG was the only asset of the US that could strike back at the Japanese immediately after that attack.

And boy did they stick it to the Japanese. Their private war lasted about 6 months, and they did some damage:

The AVG was officially credited with 297 enemy aircraft destroyed, including 229 in the air. However, a researcher who surveyed Japanese accounts concluded that the number was much lower: 115. Fourteen AVG pilots were killed in action, captured, or disappeared on combat missions. Two died of wounds sustained in bombing raids, and six were killed in accidents during the Flying Tigers’ existence as a combat force.

The fight was also very uneven, and this was a PMC versus the air force and resources of a nation. Here is a statistic of how many folks we are talking about. Which further emphasizes how the AVG had to really depend upon the support of the people and really effective use of aerial strategy.

By November 1941, when the pilots were trained and most of the P-40s had arrived in Asia, the Flying Tigers were divided into three squadrons: 1st Squadron (“Adam & Eves”); 2nd Squadron (“Panda Bears”) and 3rd Squadron (“Hell’s Angels”).They were assigned to opposite ends of the Burma Road to protect this vital line of communications. Two squadrons were based at Kunming in China and a third at Mingaladon Airport near Rangoon. When the United States officially entered the war, the AVG had 82 pilots and 79 aircraft, although not all were combat-ready.

The paper below goes into detail about the theory, and pay particular attention to how similar the thinking is to Sun Tzu. Yet there is not one mention of him studying Sun Tzu?  You see concepts like attacking weakness with strength, using deception, the effective use of lookouts and networks, and the whole ‘know yourself, know your enemy’ theme.  He really focused on the strengths of the Chinese people and bringing them into the strategy.  The people are the ones that called in enemy fighter positions through an organized system of observers, helped build up the 100 bases that were crucial to Claire’s mobility strategy, and helped rescue downed pilots. This was an aerial version of guerrilla warfare.

There is a lot of good stuff in this paper, and the point I want folks to think about for the grand picture of this story, is that private force can be a strategic asset of a nation.  Claire and his AVG ‘airmen of fortune’ were celebrated in the US and world as they prosecuted the war in Asia in the post Pearl Harbor days. It would be like DynCorp waging war in Pakistan in the days right after 9/11, and everyone cheering them on as they decimate terrorist hideouts.

The AVG or the Flying Tigers also remind me of Stirling’s Private Army in Yemen. I wouldn’t be surprised if AVG is what inspired Stirling, because AVG’s private war in Asia was big news around the world.  You could also classify this as a case for the successful use of a PMC in offensive operations, or actually fighting a war. (much like with Executive Outcomes) And of course, it is another case study of offense industry, with the use of bounties as an incentive. So for all of those reasons, I think it is important to give some attention and credit to this man and what he and his company was able to accomplish. -Matt

General Claire Chennault

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Publications: SIGIR-Control Weaknesses Remain In Oversight Of TWISS Contracts, July 2011

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

SIGIR-Control Weaknesses Remain In Oversight Of Theater-wide Internal Security Services Contracts, July 28,…

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Letter Of Marque: California Law Review–Structuring A Sustainable Letters Of Marque Regime, By Todd Emerson Hutchins

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

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Publications: Contractor Support Of USCENTCOM AOR, 3rd Quarter FY 2011

Contractor Support Of USCENTCOM AOR, 3rd Quarter FY 2011

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Publications: Journal Of International Peace Operations, July-August 2011

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Publications: Small Arms Survey 2011, Chapter 4–Private Security And Small Arms

Small Arms Survey 2011 Chapter 4: Private Security And Small Arms

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Publications: The Frequency Of Wars, By Mark Harrison And Nikolaus Wolf

“In other words, the very things that should make politicians less likely to want war – productivity growth, democracy, and trading opportunities – have also made war cheaper. We have more wars, not because we want them, but because we can. Finally, under present international arrangements this deep seated tendency is not something that any one country is going to be able to control.”

This paper was fascinating and I highly recommend reading it.  Some of the findings will be surprising to some folks, and especially the cause of increased war. Or even ‘whom’ is the cause of increased war…

I also wanted to tie this into my Opensource Military Hardware post, because this DIY concept meshes well with the conclusions of this paper. Opensource concepts, like DIY wireless nets that the Fablab is producing, or opensource software construction, are ideas that are spreading.  It is the ability to empower individuals or communities to create the kind of product or service that they want, based upon their needs and financial standing.

To not depend upon someone else to make it for you, but to have the means to design and create it yourself is a powerful thing. It is about choice and not being dependent on someone else. You can either buy the store bought, expensive cookies, or learn how to make those same cookies with a little work and some research. Or you make those cookies, because the store no longer has those cookies.  And if you can make that cookie cheaper, and even better than the store bought cookies, all because you were well informed, like with a recipe wiki or some forum, then now you can see the power of this concept as applied to other industries.

To piggyback the conclusion of this paper, opensource will probably be the next trend that will further empower states and non-state actors to wage war. And specifically poor countries and 4th generation war practitioners. Organizations at war, no matter what their wealth and size, will always have a military industrial base.  It could be a couple of guys in a garage, welding rocket pods to jeeps, or it could be a massive industrial complex that produces stealth bombers and tanks.

I think what is interesting to ponder though, is that with today’s wars, the small scale industrial bases of today’s enemies, have certainly been able to hold their own against the west’s massive industrial bases. It is as simple as some ‘maker’, creating an EFP at the cost of ten dollars, and using that device to destroy a multi-million dollar M-1 Abrams tank.  Of course there are other examples of competing industries during times of war, and we are witnessing such things in Libya or Mexico. All of these groups are trying to figure out how to exploit the weakness of the other side’s weapons and hardware.

With more collaboration and information sharing, the learning curve for how to exploit these weaknesses increases. Opensource concepts really speed things up, and I think organizations around the world will recognize the power of such a thing. Simply because they will see how it is applied to ‘productivity growth, democracy, and trading opportunities’ and come to the conclusion that this could also be used to make war ‘cheaper’. Cheaper gives politicians a choice and the ability to say ‘we can’ go to war.

As a sidebar, it is also interesting to note that contractors are a big part of today’s war fighting, because we too give politicians the ability to say ‘we can’ go to war. That whole adage that ‘you go to war with the army you have, not the one you wish you had’, has kind of been tweaked thanks to the concept of contracting. A country can go to war with the army ‘it was willing to pay for during times of peace’, and instantly supplement that force with a highly flexible support mechanism. A support mechanism that ‘you do not have to pay for during times of peace’, and one that gets absorbed back into other industries and society when war is over. Probably the biggest advantage of this support mechanism is that it ‘chooses’ to serve and work in a war.

Politically speaking, not having to implement a draft is incredibly attractive to a country’s leaders, and further gives them the ability to say ‘we can’ go to war.  Using an army of choice, equates to organized violence that is created out of passion/desire/commitment, and not created by forced labor. Might I also add that a well compensated contractor, still must make a commitment to exposing themselves to a war. Thus this choice is as much a patriotic choice, as it is a financial one for many that go. Because if it was all about the money, then all of society would rush the door called ‘contracting’ and compete in this industry. As it stands now, there is only a select segment of society that is willing to risk life and limb in a war and service in the military or as a contractor is something they have committed too.  And personally speaking, I would much rather participate in a venture of the willing, as opposed to being a slave in an army of slaves.

Of course then we go back to the discussion of just because we can, should we?  And that is a matter for politicians and the country they have sworn to protect to get into. All I am trying to do with this post, is to ponder this study and speculate on the future of warfare. -Matt

Wars steadily increase for over a century, fed by more borders and cheaper conflict
28th June 2011
New research by the University of Warwick and Humboldt University shows that the frequency of wars between states increased steadily from 1870 to 2001 by 2% a year on average. The research argues that conflict is being fed by economic growth and the proliferation of new borders.
We may think the world enjoyed periods of relative freedom from war between the Cold War and 9/11 but the new research by Professor Mark Harrison from at the University of Warwick’s the Centre for Competitive Advantage in the Global Economy, and Professor Nikolaus Wolf from Humboldt University, shows that the number of conflicts between pairs of states rose steadily from 6 per year on average between 1870 and 1913 to 17 per year in the period of the two World Wars, 31 per year in the Cold War, and 36 per year in the 1990s.
Professor Mark Harrison from the University of Warwick said:
“The number of conflicts has been rising on a stable trend. Because of two world wars, the pattern is obviously disturbed between 1914 and 1945 but remarkably, after 1945 the frequency of wars resumed its upward course on pretty much the same path as before 1913.”

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Quotes: PSC Usage In Afghanistan Is Highest Recorded Number In US History

What I wanted to do here is to highlight some very important and historical statistics of this CRS report I posted a couple of weeks back. This gives a very clear picture as to how significant private security contractors are to the war effort in Afghanistan, and the sacrifice of PSC’s. Especially the sacrifice of local national PSC’s, which account for most of the deaths of this group.

Although I must emphasize ‘recorded’ here, because no one recorded the amount of US PSC use during our very early wars.  I personally think that privateer usage was one of the highest number of PSC’s used by the US during times of war. Although a strong argument could also be made that the expansion of the west in the US would be the most impressive number of PSC’s used during time of war.

Pioneers, investors, the military, the railroads, cattle companies, shipping companies, banks, law enforcement etc. were all highly dependent upon on private security in all of it’s forms to protect lives and investments against Indian combatants and criminals. During this time period, there were 8 contractors awarded the Medal of Honor as well.

And of course this expansion of the west and resulting Indian Wars and land wars covered a very long time period of conflict in the US. For that reason, I would estimate that this time period would be the highest use of PSC’s by the US. It just wasn’t recorded by any government accounting office. Although Buffalo Bill did a pretty good job of bringing some attention to the matter with his Wild West Show. (which ran from 1883- 1913, a 30 year long show!)-Matt

Number of Private Security Contractors in Afghanistan
Since December 2009, the number of PSC personnel in Afghanistan has exceeded the number of PSC personnel in Iraq. According to DOD, as of March 2011, there were 18,971 private security contractor personnel in Afghanistan. This represents the highest recorded number of private security contractor personnel used by DOD in any conflict in the history of the United States. Local nationals made up 95% of all security personnel.
According to DOD, for the 15-month period of September 2007 to December 2008, the number of security contractors in Afghanistan increased by 16%, from 3,152 to 3,689. However, from December 2008 to March 2011, the number of security contractors increased from 3,689 to 18,971, an increase of over 400%. DOD has attributed the increase in contractors to increased operational tempo and efforts to stabilize and develop new and existing forward operating bases.
Security Contractors Compared to Total Contractor and Troop Levels
From December 2008 to March 2011, the number of U.S. troops and DOD contractor personnel in Afghanistan increased. However, the number of security contractors increased at a much faster rate (414%) than total contractors (26%) or troop levels (207%). As of March 2011, security contractor personnel made up 21% of all DOD contractors and was equal to 19% of the size of total U.S. troop presence in Afghanistan.
Casualty Rates of PSC Personnel vs. Uniformed Personnel
According to DOD, from June 2009 to November 2010, 319 private security contractor personnel working for DOD have been killed in action in Afghanistan, compared to 626 U.S. troops killed in action over the same period.28 Adjusting for the difference in the number of PSC personnel compared to troops, a PSC employee working for DOD in Afghanistan is 2.75 times more likely to be killed in action than uniformed personnel.  More contractor security personnel were killed in action providing mobile security (233 people or 73% of fatalities) than static security, even though those providing mobile security are only 25%- 30% of the total PSC workforce.
Nationality of Contractors
According to DOD, since September 2007, local nationals have made up 90% or more of all security contractors in Afghanistan.
Link to report here.

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Publications: Journal Of International Peace Operations, May-June 2011

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