Feral Jundi

Thursday, September 29, 2011

Legal News: Does The OMB Policy On Inherently Governmental Conflict With The Constitution?

Filed under: Legal News,Letter Of Marque — Tags: , , , , , , — Matt @ 4:28 PM

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. – The enumerated powers of congress, war powers clause, Article 1, Section 8, Paragraph 11 of the US Constitution.

The other day I came across the OMB’s new policy letter on what the government deems ‘inherently governmental’.  I posted the Apendix A portion, because that has the most relevance to this discussion and to our industry.  For the most part, self defense or defense of others is not a problem, but contractors engaging in combat is.

With that said, let’s look at the legal definition of the Letter of Marque and Reprisal and the various sources that confirm that definition:

LETTER OF MARQUE AND REPRISAL, War. A commission granted by the government to a private individual, to take the property of a foreign state, or of the citizens or subjects of such state, as a reparation for an injury committed by such state, its citizens or subjects. A vessel loaded with merchandise, on a voyage to a friendly port, but armed for its own defence in case of attack by an enemy, is also called a letter of marque. 1 Boulay Paty, tit. 3, s. 2, p. 300. 2. By the constitution, art. 1, s. 8, cl. 11, congress has power to grant letters of marque and reprisal. Vide Chit. Law of Nat. 73; 1 Black. Com. 251; Vin. Ab. Prerogative, N a; Com. Dig. Prerogative, B 4; Molloy, B. 1, c. 2, s. 10; 2 Woodes. 440; 6 Rob. Rep. 9; 5 Id. 360; 2 Rob. Rep. 224. And vide Reprisal.

And then let’s look at the legal definition of combat.

COMBAT, Eng. law. The form of a forcible encounter between two or more persons or bodies of men; an engagement or battle. A duel.

So you can see here that in fact, the ability to grant a Letter of Marque and Reprisal is an enumerated power of congress. That by definition, authorizes private individual to take the property of a foreign state or the citizens and and subjects of that state. That is not self defense. This is totally a forcible encounter between two or more persons or bodies of men.

Now onto the question. How is the policy of the OMB on what is inherently governmental, not conflict with the constitution? You have one agency saying that a private individual engaging in combat for this country is not authorized, but you have our top legal document of the land saying that private individuals can participate in combat and seize the assets of an enemy if given a license or Letter of Marque by congress.

Or legally agencies must abide by this policy, but congress still has this right to issue the LoM?  Anyone want to take a swipe at this one? lol  –Matt 

 

OFFICE OF MANAGEMENT AND BUDGET
Office of Federal Procurement Policy
Publication of the Office of the Office of Federal Procurement Policy (OFPP) Policy
Letter 11-01, Performance of Inherently Governmental and Critical Functions
AGENCY: Office of Management and Budget, Office of Federal Procurement Policy
ACTION: Notice of Final Policy Letter
In addressing security operations, for example, the list
identifies where security operations would be inherently governmental in connection with
combat. This should not be read as a determination that all security performed in any
hostile situation other than actual combat may be performed by contractors. Rather it
means that those situations should be evaluated on a case-by-case basis to determine what
security functions and activities are inherently governmental and what can be performed
by contractors with appropriate management and oversight.

Appendix A. Examples of inherently governmental functions
The following is an illustrative list of functions considered to be inherently governmental.
This list should be reviewed in conjunction with the list of functions closely associated
with inherently governmental functions found in Appendix B to better understand the
differences between the actions identified on each list.

Note: For most functions, the list also identifies activities performed in connection with
the stated function. In many cases, a function will include multiple activities, some of
which may not be inherently governmental.

1. The direct conduct of criminal investigation.

2. The control of prosecutions and performance of adjudicatory functions (other than
those relating to arbitration or other methods of alternative dispute resolution).

3. The command of military forces, especially the leadership of military personnel who
are performing a combat, combat support or combat service support role.

4. Combat.

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Tuesday, September 27, 2011

Maritime Security: Cyprus Merchant Ships To Carry Gunmen Against Piracy, CNA Says

Filed under: Cyprus,Legal News,Maritime Security — Tags: , , , , , — Matt @ 12:45 PM

Unfortunately, this is all I could get on this story. There might have been stuff hidden in Cyprus news sites, but I could find anything, and translation mechanisms kind of sucked. Either way Lloyd’s List reported in June about Cyprus lawmakers introducing legislation that would make it legal for their flagged vessels to have armed guards. So hopefully this story below indicates some movement towards this becoming a reality?

I also imagine that the ‘cooking beans‘ incident, where a Cyprus vessel was set on fire by pirates as the crew cowered in their little safe room, probably brought just a little too much negative attention to the matter. lol  Hopefully we will see this law passed, and armed guards can get on these boats. –Matt

 

Cyprus Merchant Ships to Carry Gunmen Against Piracy, CNA Says
By Stelios Orphanides
Sep 26, 2011
Cyprus’s government is preparing a change to the law that will allow its merchant ships to carry gunmen as protection against pirates, Cyprus News Agency reported, citing a shipping official.
The east Mediterranean island is close to completing a bill which will be submitted to the parliament aimed at protecting Cypriot ships, CNA said, citing Sergios Sergiou, director of the Cypriot Department of Merchant Shipping.
Story here.

Wednesday, September 21, 2011

Letter Of Marque: The Original Understanding Of The Capture Clause, By Aaron Simowitz

Filed under: Legal News,Letter Of Marque — Tags: , , , , , , , — Matt @ 1:24 PM

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. -the enumerated powers of Congress, Art. 1, Sec. 8, Para. 11 of the US Constitution.

This is cool. When discussing the Letter of Marque and Reprisal portion of the war clause, the capture clause is always forgotten. But for privateering, the capture clause was very important. It gave congress the right to establish the rules and laws for the capture of enemy vessels or prizes, and for the capture of combatants. That last part about the capturing of combatants is what has been falsely interpreted over the years and forgotten, and Mr. Simowitz has done a great job of disputing this false interpretation.

The reason why this is important to discuss is that like in the past, prisoners are very much a part of conflicts on land or water today, and if private industry is to be involved in such ventures, there must be rules and laws in place that dictate what is to be done with prisoners. Especially on water, just because armed guards on boats are big thing right now. The big one here is the legal capture, detention and treatment of prisoners, and of course, the costs of capture, detention and transport of prisoners. Private industry must be compensated and incentivized, or else taking prisoners will not be a priority. (hence why Congress dedicated funding for captures/bounties during wars like the one in 1812)

I have talked about offense industry in prior posts, and the key to this concept is to create a mechanism in which private industry profits from the destruction of the enemy. Well profiting from the ‘capture’ of enemies is included in that mechanism because the act takes combatants off the battlefield. You can see shades of that in today’s modern bailbondsmen industry as well.

And if there are specific rules and laws on how captures are to be done, then those captures could be recognized by a prize court or current court of law as legal. If a bounty or fees associated with the capture/detention is to be awarded, a court of law must be satisfied that it was legally conducted. As of right now, there are no laws or rules for private industry to use for the capture/detention of pirates. Yet states could easily provide such a thing via their right to grant a license or Letter of Marque to private industry.

Now lets discuss today’s modern piracy problem. We are well on our way to creating a vibrant ‘defense industry’; one in which there is no mechanism in place to reduce the numbers of pirates other than to kill them during times of self defense. This is an odd arrangement that we have, where we allow armed guards to take the life of a pirate during combat, but we do not give them the legal authority necessary to capture that pirate? Or what about the rules for when a pirate surrenders or we have wounded that pirate or destroyed their vessel during a battle, thus leaving them stranded in the ocean?

Sure, a company could contact a naval force nearby and give them a GPS coordinate of the position of that pirate vessel, but what about those companies who could care less about such things?  Or maybe those companies are getting strict guidelines that they are not to stop or deal with any kind of pirate detention. And for those companies that do bring pirates on board that surrendered or were stranded, then who will pay those companies for the effort? That is what boggles the mind right now, and there are no laws or rules for capture or detention. Oh but we can shoot at the pirates all day long…..

So this is what I am trying to do here. We need a serious discussion about the ‘rules concerning captures on land or water’, and how that could apply to private industry and their current task out there on the high seas.  The US Constitution is a great starting point for that discussion, as well as the history of privateers and the rules for capture they followed in the past. The War of 1812 is just one historical example, and our forefathers had a greater understanding and appreciation for the issue than our modern legal councils. And if you think about, our forefathers were more humane, just because they had a legal means of private industry removing combatants off the battlefield, other than just killing them.

Either way, check it out, pass it around, chew on it for a bit, and understand that we can learn a lot from the past about how to use private industry during times of war. –Matt

The Original Understandings of the Capture Clause
Aaron D. Simowitz
Gibson, Dunn & Crutcher LLP
March 12, 2008
Abstract:
The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.
Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a hundred and eighteen cases before it was dissolved by Article III of the Constitution.

The federal government, first under the Articles of Confederation and then under the Constitution, was responsible for prescribing the rules under which enemy ships and prisoners could be taken. The value of captured ships was the chief means by which the early navy and privateer system was financed. However, the early law of capture also concerned captured persons, who could sometimes be redeemed or ransomed for head money. Later scholars have correctly concluded the capture of property was more important to the Framers of the Constitution. However, they have also assumed that the Capture Clause did not cover people. This is not the case.

This paper will show that the received wisdom that the Capture Clause covers only property is based on a faulty and possibly disingenuous statement dating from 1833. This paper will also show that the received wisdom is inconsistent with the era’s admiralty law and with Congressional practice. The Framers made prescribing rules concerning captures on land and water an enumerated power of Congress. This power covered enemy persons as well as property.
Link to paper here.
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Shortly before the War of 1812 broke out, Congress passed the latest version of “An Act Concerning Letters of Marque, Prizes, and Prize Goods.” Section seven of the Act, enacted pursuant to Congress quasi-war powers, provided, “[t]hat all prisoners found on board any captured vessel, or on board any recaptured vessel, shall be reported to the collector of the port in the United States in which they shall first arrive, and shall be delivered into the custody of the marshal of the district . . . who shall take charge of their safe keeping.”  Section nine of the same act provided a bounty of twenty dollars for each enemy killed in the event that the enemy vessel was destroyed. -2 Stat 759, 763 (June 26, 1812)

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby authorized to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient, until the same shall be otherwise provided for by law; and to carry this act into effect, one hundred thousand dollars be, and the same are hereby appropriated, to be paid out of any monies in the treasury not otherwise appropriated.”-An Act for the Safe Keeping and Accommodation of Prisoners of War, War of 1812

Wednesday, September 7, 2011

Legal News: Corporate Whistle Blower Center Reaches Out To Contractors

Filed under: Bounties,Industry Talk,Legal News — Tags: , , , , , , — Matt @ 2:12 PM

I like it. Anything that gets the companies to do the right thing is a good thing. So if the Corporate Whistle Blower Center can help contractors that have identified waste, fraud, and abuse in their companies, then I dig that. Especially if they can help those contractors get the reward that comes with reporting such abuse.

What I believe this organization is referring to when talking about a reward is the provisions within the False Claims Act. I mentioned this law as a primary driver on why AGNA settled in the case with James Gordon. Here is a quick summary of the Lincoln Law.

The False Claims Act (31 U.S.C. §§ 3729–3733, also called the “Lincoln Law”) is an American federal law that imposes liability on persons and companies (typically federal contractors) who defraud governmental programs. The law includes a “qui tam” provision that allows people who are not affiliated with the government to file actions on behalf of the government (informally called “whistleblowing”). Persons filing under the Act stand to receive a portion (usually about 15–25 percent) of any recovered damages. Claims under the law have typically involved health care, military, or other government spending programs. The government has recovered nearly $22 billion under the False Claims Act between 1987 (after the significant 1986 amendments) and 2008.

The other reason why there is more interest in these kinds of cases is that companies will be hurt in any bidding process for government contracts, if they are charged with False Claims or in litigation. It is the primary reason why AGNA settled, so that it would not stop them from pursuing contracts. Here is a link to the FAR 52.207-1 that details what I am talking about.  I also put that section up below this article.

Now just for clarification, I am not affiliated with this group, nor can I vouch for their effectiveness. They are just another option for contractors to use, and of course do your own research and put together a good strategy before getting into this stuff. –Matt

 

Corporate Whistle Blower Center Urges U.S. Contractor Employees in Afghanistan and Iraq to Step Forward for Huge Rewards if They Can Prove Massive Fraud
Tuesday, September 6, 2011
The Corporate Whistle Blower Center is urging employees of major U.S. federal contractors, or subcontractors, that have been defrauding the US taxpayer in Afghanistan, or Iraq to step forward, for what could be enormous rewards, provided they can prove it. An independent panel investigating wartime spending estimates that as much as $60 billion has been lost to waste and fraud over the past decade in Iraq and Afghanistan. In its final report to Congress, the Commission on Wartime Contracting said the figure could grow larger as U.S. support for reconstruction projects and programs wanes and Iraq and Afghanistan are unable to sustain the schools, medical clinics, roads and power plants already built with American tax dollars. The Corporate Whistle Blower Center says, “In actuality we are pretty sure in many cases the schools, power plants, or medical clinics were never completed, and in other instances we know federal subcontractors gouged the U.S. government, and the taxpayers on everything from over inflated fuel, or food prices, to pretty much you name it. As long as you can prove it, and the amount exceeds two million dollars, there can be huge rewards for this type of information, as long as its substantial proof, and credible. If you possess this type of information please call us at 866-714-6466, because we would welcome the chance to explain the federal whistleblower reward programs to you.”
September 06, 2011
The Corporate Whistle Blower Center is strongly encouraging employees of federal contractors, or their subcontractors, that were providing any type of service in Afghanistan, or Iraq to step forward, if they possess significant proof of overbilling, or defrauding the U.S. federal government, because the rewards can be enormous. The group says, “If a government type panel says the fraud is sixty billion dollars in Iraq, or Afghanistan, its probably more like a hundred billions dollars plus, and provided you have substantial proof, and the proof is easy to understand, and black, and white, the rewards can be huge.” The Corporate Whistle Blower Center says, “When it comes U.S. contractors, or subcontractors defrauding the U.S. taxpayer we think in some instances it could be in the tens, or hundreds of millions of dollars, and it runs the gamete from construction, or infrastructure projects, that were not properly done, or not done at all, to food, fuel, engineering services, to you name it. And, we are pretty sure there are hundreds, or thousands of individuals, who possess the proof it happened. To us this type of solid proof is like having a winning lotto ticket, and we’d like to explain how the U.S. Federal Whistleblower programs work.” For more information please contact the Corporate Whistle Blower Center anytime at 866-714-6466, or contact the group via its web site at http://CorporateWhistleBlowerCenter.Com
Simple rules for a whistleblower from the Corporate Whistle Blower Center:
•    Do not go to the government first, if you are a major whistleblower. The Corporate Whistle Blower Center says, “Major whistleblowers frequently go to the federal government thinking they will help. Its a huge mistake. Frequently government officials could care less, or they are incompetent.”
•    Do not go to the news media with your whistleblower information. Public revelation of a whistleblower’s information could destroy any prospect for a reward.
•    Do not try to force a government contractor, or corporation to come clean to the government about their wrong doing. The Corporate Whistle Blower Center says, “Fraud is so rampant among federal contractors, that any suggestion of exposure might result in an instant job termination, or harassment of the whistleblower. We say, come to us first, tell us what type of information you have, and if we think its sufficient, we will help find the right law firms, to assist in advancing your information.”
Any type of insider, or employee, who possesses significant proof of their employer, or a government contractor fleecing the federal government is encouraged to contact to Corporate Whistle Blower Center anytime at 866-714-6466, or they can contact the group via their web site here.

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52.209-5  Certification Regarding Responsibility Matters.

As prescribed in 9.104-7(a), insert the following provision:

Certification Regarding Responsibility Matters (Apr 2010)

(a)(1) The Offeror certifies, to the best of its knowledge and belief, that—

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Friday, September 2, 2011

Fish And Game: The Pork Chopper Bill Passes–Texas Legalizes Helicopter Hunting Of Feral Pigs

Filed under: Fish and Game,Legal News,Texas — Tags: , , , , , — Matt @ 11:52 AM

Pretty cool. Hopefully this will create it’s own little industry that thrives. Anything that can reduce the population of these feral pigs and is self sustaining is a great way to go. It looks like Vertex is advertising itself as a helicopter hunting outfit if you are interested in doing something like this. –Matt

 

Serious shooters are lining up for a chance to hunt feral hogs from helicopters
August 27, 2011
By Steve Campbell
“Pork choppers,” Texas’ newest weapon in the war on feral hogs, will take to the skies Thursday when it becomes legal for hunters to buy seats on hog-hunting helicopters and gun down as many pigs as they can put in their sights.
With more than 2 million feral hogs rooting around the Lone Star State, there will be plenty of targets for aerial gunners willing to pay $475 for an hour of heli-hunting.
Vertex Helicopters is already bringing home the bacon as a result of the measure passed by the Texas Legislature this year.
The Houston-based firm requires shooters to take a $350 hunting safety course before they can book a hunt, said President Mike Morgan, a former Army helicopter pilot.
Sixty hunters have taken the course, and two more 15-person classes are already filled, he said.
“These are people who are really, really serious about shooting things,” Morgan said, noting that hunters from New York City, Missouri and Kansas have taken the course, which includes a four-hour class and 30 minutes of learning airborne target practice.
Vertex has secured landowners’ permission to hunt on more than 150,000 acres across the state and is negotiating to add another 550,000 acres, he said.
The company has booked more than 30 hunts with a three-hour minimum of flight time. Most shooters are scheduling five hours to six hours, he said.
“In the big picture it’s not that expensive,” Morgan said. “You have people paying $10,000 for one deer. At $475 an hour, it’s barely a drop in the bucket for serious hunters.”

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