Feral Jundi

Monday, July 25, 2011

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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Friday, July 8, 2011

Legal News: Federal Jury– Jamie Leigh Jones Was Not Raped, And KBR Did Not Commit Fraud

Filed under: Legal News — Tags: , , , , — Matt @ 2:54 PM

This is a stunning verdict, in a week of amazing legal news.(to include that Casey Anthony case) Thanks to a reader for sending me this news, and I also want to openly apologize to KBR and to those men who were labeled as rapists by this women. My commentary was only based on the given information, and at the end of the day, what matters most is the facts.

This jury was given all of the available information and have made their choice. And honestly, after reading what was posted in that Mother Jones article, I can see why they made their choice.

As to my thoughts on the whole case? I have heard about this kind of thing in the federal government, the military, and in private industry and it is most unfortunate. And usually the way it goes down is that a gal gets drunk, sleeps with a guy they work with, then has regrets in the morning about sleeping with that guy. Then the rumors that get spread about what happened are what fuel the anger of those that had regret. So the temptation of lashing out by crying rape in order to save face is there.

I know it sounds pretty immature, but these things happen in the real world. And these things happen in war zones as well. Probably the two things that get male contractors in the most trouble overseas is ‘booze and women’. The best solution for contracting survival is to not drink while over there, and to avoid relationships (if you can).

Especially for security contractors, because A. you carry a gun and B. you must not be distracted or influenced. Remember the whole ‘Mission, the Men, and Me” concept? Well, when you start putting your relationships ahead of the mission (contract) or the men, then your start opening yourself up to all sorts of problems. Now of course the risks are lower when relationships are with individuals from ‘other’ companies and contracts on a FOB or something. But if you have relations with your client(s) on your particular contract, or within your company, then that is a big red flag. Keep it professional, and focus on the mission and contract.

Now I also want to go back to the real sexual assault cases out there. The ones where women were truly assaulted, and all of the evidence and circumstance pointed towards that. I certainly hope that this particular case does not hurt your case.

This case is also a cautionary tale for those women who have decided to use rape as a means to hurt some guy that you had consensual sex with, all because you had regrets about the whole affair in the morning or sometime later. There is a difference here between being raped/sexually assaulted, or having regrets because of personal choice. It is called being accountable for your actions, and if that is what you chose to do, then you need to live with it and move on.

A female victim has a lot of power when they scream rape, because it symbolizes such a shocking and tragic crime. But those same female victims lose that power when those ‘less than honorable women out there’ scream rape and use it as a malicious tool and legal weapon. KBR’s image suffered under this assault, and the accused men suffered under this assault–and both are a prime example of the power of this kind of thing. My support goes to those women who were truly victims, and I only hope that this case does not hurt your pursuit of justice or your desire to step forward and say something. –Matt

Federal jury: No rape, no fraud in KBR case
July 8, 2011
A federal jury on Friday ruled that a woman who sued KBR over an alleged sexual assault in Iraq was not raped, and the company did not commit fraud.
Jamie Leigh Jones sued KBR, its Houston-based former parent company Halliburton and KBR firefighter Charles Bortz, who she claimed led an attack on her while she worked for KBR at Camp Hope in Baghdad in 2005.
Jones’ attorney, Ron Estefan, told jurors during closing arguments that KBR had neglected to enforce its policies against sexual harassment by its contract workers in Iraq, which facilitated Jones’ rape.
Estefan asked the jury to award his client as much as 5 percent of KBR’s net worth in actual or punitive damages, which would have been more than $114 million.

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Thursday, July 7, 2011

Legal News: AGNA And It’s Affiliates Pay $7.5 Million To Resolve False Claims Act Allegations

Wow, this is quite the legal news day!  James Gordon has been fighting this one for a long time, and it is good to see him become victorious in his case. ($1.35 million for a settlement is not bad)  This is also an interesting precedence for False Claims Acts, because now guys can look at this case as an example of how to go about pursuing similar cases.  Debra Katz was Gordon’s legal counsel and she would be a good one to put on retainer if you have a False Claims Act that you would like to pursue. –Matt

Edit: 07/11/2011- I have just been contacted by a representative of AGNA in regards to their side of the case. Out of fairness, I think it is important to post their view and you can read their statement in the comments section below.

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Thursday, July 7, 2011
Armor Group North America and Its Affiliates Pay $7.5 Million to Resolve False Claims Act Allegations
Armor Group North America Inc. (AGNA) and its affiliates have paid the United States $7.5 million to resolve allegations that AGNA submitted false claims for payment on a State Department contract to provide armed guard services at the U.S.   Embassy in Kabul, Afghanistan, the Justice Department announced today. The settlement resolves U.S. claims that in 2007 and 2008, AGNA guards violated the Trafficking Victims Protection Act (TVPA) by visiting brothels in Kabul, and that AGNA’s management knew about the guards’ activities. The settlement also resolves allegations that AGNA misrepresented the prior work experience of 38 third country national guards it had hired to guard the Embassy, and that AGNA failed to comply with certain Foreign Ownership, Control and Influence mitigation requirements on the embassy contract, and on a separate contract to provide guard services at a Naval Support Facility in Bahrain.
The settlement resolves a whistleblower suit filed in the U.S. District Court for the District of Columbia.   The lawsuit was initially filed under seal by James Gordon against AGNA, ArmorGroup International plc, G4S plc and Wackenhut Services Inc. under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private individuals, called “relators”, to bring lawsuits on behalf of the United States and receive a portion of the proceeds of a settlement or judgment awarded against a defendant.   Mr. Gordon will receive $1.35 million of the settlement proceeds.   During 2007 and early 2008, Mr. Gordon was employed by AGNA, as its director of operations.

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Legal News: Why Jamie Leigh Jones Could Lose Her KBR Rape Case

Filed under: Legal News — Tags: , , , , — Matt @ 10:03 AM

“Oftentimes the truth is in between,” says Laurie Levenson, a former federal prosecutor in Los Angeles. “The truth may be that this wasn’t rape as we come to understand it in the law, but it wasn’t something that was appropriate. It doesn’t mean that something didn’t happen.” However, if Jones hasn’t been entirely truthful and the jury rules against her, it could be a major setback for sexual assault victims, particularly women serving in war zones. “The problem with cases like this is, if it turns out that she’s making it up, it really does a disservice to the many women who really are raped who have trouble coming forward,” Levenson says.

Thanks to a reader for sending me this. Boy, the details in the court records below paint a vastly different picture than what Jamie was claiming. Although it is important to remember that the attorneys will do everything they can to discredit the victim so as to influence the jury’s decision. So I will hold any commentary and let the reader decide for themselves.

As to my post about her case, all I can say is that my commentary was based upon the given information at that time. Likewise, as much as I despise sexual crimes, I equally despise those who ‘lie’ about being a victim of sexual crime in order to seek financial gain, celebrity or to attack a company. This is not to say that this was the intended goal here, but these things do happen.  If this was a scheme, then the real victims would be KBR and the man (or men) accused of rape.

The other thing that a case like this will hurt, if it was determined to be a lie, are the future cases of women who were truly the victims of sexual assault in war zones. We will see and the court will decide on this deal. Either way, this article definitely paints a different picture than has been previously presented before. It was also published in Mother Jones, which is certainly not a ‘friend’ of KBR, which gives this article even greater significance. Check it out. –Matt

Why Jamie Leigh Jones Could Lose Her KBR Rape Case
Her story of a brutal attack in Iraq sparked a national outcry—but how much of it is true?
By Stephanie Mencimer
Thu Jul. 7, 2011
The allegations were explosive when they first hit in 2007: A 20-year-old woman named Jamie Leigh Jones alleged that four days after going to work in Iraq for contracting giant KBR in July 2005, she was drugged and gang-raped [1] by fellow contractors. She accused the company, then a subsidiary of Halliburton, of imprisoning her in a shipping container after she reported the rape, and suggested KBR had tampered with some of the medical evidence that had been collected at an Army hospital. The harrowing story has made international headlines. It’s been the subject of congressional hearings and has inspired legislation. Jones even plays a starring role in the new documentary Hot Coffee [2], about efforts to limit access to the justice system.
Jones’ charges fell on fertile ground, compounding KBR’s reputation as a corporate scofflaw—all the more so when it came out that the firm’s contract had included a mandatory arbitration clause [3] intended to block employees from suing it. Jones spent years fighting for a jury trial, and now, six years after the alleged attack, she is finally getting her day in court in a civil suit that accuses KBR of knowingly sending her into a hostile workplace. The verdict could come as early as Thursday. And—in a twist that’s likely to shock her numerous supporters—there’s a good chance she will lose.

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Monday, June 27, 2011

Legal News: Justin Cannon Sentenced To 30 Months In Prison

Filed under: Legal News — Tags: , , , — Matt @ 9:57 PM

Of course the family is still in the process of appeals. If you would like to show your disgust with this ruling, by all means contact Senator Carl Levin.  That is what the family is recommending.

As to my thoughts on the matter? I think DOJ wants a win with this one, just because they are getting beaten up in other areas where they have stumbled. These guys have also been on a Xe witch hunt for quite some time, even though the US government has been rewarding Xe with contracts. (an odd way to show your appreciation?) They want MEJA to have some precedent as well so they can say ‘look, contractors can be held accountable’.

I agree that this industry needs accountability, but on the other hand, I hate seeing contractors becoming scapegoats to create that precedent.

These men were in a war zone, they acted out of self preservation, and they ‘interpreted’ the oncoming vehicle as a threat.  That should have ended the case right there, because these men did not act maliciously. They were also firearms instructors and trained military veterans, and yet here we are, punishing these men for their decision in a war zone.

The fear I have here is that cases like this will actually reduce the security posture of security contractors. Because if you ‘fire’ your weapon out of self defense, or defense of your client, that you will be punished or worse, go to jail. Do we want to instill this kind of mindset into the minds of armed security contractors working in highly complex and extremely dangerous war zones? Worse yet, are we setting ourselves up to where even an enemy combatant, or the family of an enemy combatant, could file charges against a security contractor?

These are the things that must be considered as we go down this path of contractor accountability. It applies to military accountability as well, and some have even coined this as ‘lawfare’.

To me, all laws that a nation creates must be geared towards giving it advantage during times of war, and at the same time giving disadvantage to the enemy. Because what sense is it if you lose your country to a stronger enemy, all because of your self-imposed and highly restrictive laws? If MEJA, or whatever laws we create are the path we follow, they must be viewed in this type of legal filter, or we will have lost a strategic and tactical advantage. (and yes, contractors are a strategic asset of a nation, despite what some might say…) –Matt

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, June 27, 2011
Contractor Sentenced to 30 Months in Prison for Death of Afghan National in Kabul, Afghanistan
Justin Cannon, 29, of Corpus Christi, Texas, was sentenced today to 30 months in prison for his role in shooting and killing an Afghan national while on an unauthorized convoy in Kabul, Afghanistan, on May 5, 2009, announced Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division, U.S. Attorney Neil H. MacBride of the Eastern District of Virginia and James W. McJunkin, Assistant Director in Charge of the FBI’s Washington Field Office.   U.S. District Judge Robert G. Doumar also ordered Cannon to serve two years of supervised release following his prison term.

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