inherently governmental

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: combat, contractors, inherently governmental, Legal News, Letter Of Marque, letter of marque and reprisal, OMB — 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.

(more…)

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Wednesday, May 4, 2011

Industry Talk: Role Of Security Contractors Debated At Hearing

Filed under: Industry Talk,Letter Of Marque — Tags: Afghanistan, Doug Brooks, inherently governmental, Iraq, Letter Of Marque, private military, security contractors — Matt @ 12:06 PM

Bravo to Doug Brooks for standing up for the industry at this hearing. The debate on what is ‘inherently governmental’ continues to rage, and there are those out there that continue to be very forgetful of the sacrifice of today’s private industry and of our contributions to this war and wars past. Arguably, we are a strategic asset for the simple reason that without contractors, there would have to have been other means of raising an army to deal with the manning requirements of the war.

My message to all the elected officials on that wartime commission panel is that because you did not have the political courage to implement a draft and authorize the raising of a massive military force, that in effect you gave the war planners no other choice. And as long as we continue to have a military composed of individuals that ‘chose’ to serve, meaning they signed a contract and willfully serve the country, then we will always have manning issues. Simply because you either do a really good job of making the military and war fighting appealing to potential recruits, or you lose them to the private sector. An all volunteer force concept works great during peace time or during the successful periods of a war campaign, but when there are multiple wars and a multitude of chances of dying or getting wounded on the battlefield, the whole military idea becomes less attractive–and especially when you ask a recruit to sign four years of their life away for the war effort.

It is the freedom of choice that we are talking about here. Our leaders do not have the courage to take away that freedom of choice and implement a draft. Because of the legacy of our war in Vietnam, that required a draft to raise an army, is what I am referring to here as the example. The draft is political suicide, and many politicians out there are not willing to implement that tool to raise an army.

They are also not willing to accept the costs of raising such an army. With contracting, it is easier to bypass the political risk that goes along with increasing troop levels for wars that continue to drag on and on. With contracting, it can be wrapped up in all sorts of budget deals, and companies can subcontract to get the mission accomplished.

Not to mention the political costs of when a soldier dies, versus when a contractor dies. I have noted that over 2600 contractors have been killed in this war, and probably more if there was an accurate accounting of all private sacrifices. That is 2600 less folks that politicians had to answer for with their constituents. Not to mention all the wounded, and all the folks from numerous countries from all around the world that have contributed to the contractor work force. It is a sacrifice that barely registers with the tax paying and voting public.

Then of course there are the politics of war fighting. At the height of the Iraq war, when everyone was wanting to pull out and give up, it was contractors that were able to step up and fill in the necessary man power requirements while congress tried to figure out what they wanted to do. And also, that surge of military force could more focus on combat operations as opposed to kitchen duty or guard duty at some camp. That is a huge strategic asset for a war planner, because if he could not depend on contractors for that support, then they would have had to go to congress and ask for even more troops.

Probably one of the most significant contributions in this war, is the legion of contracted interpreters. Without them, our US troops would be nowhere with this war in Iraq or Afghanistan. These contractors are also on the front lines, participating in the offense and defense by default. They are also dying and getting wounded right there with the US troops and coalition partners. Oh, and without contracted interpreters, we would have never have gotten as far as we had with the hunt for Usama Bin Laden. Someone had to interpret the Arabic or Pashtun materials and statements over the years, and yet no one mentioned in the hearings as to how important their contribution has been?

Even the surge in Afghanistan couldn’t happen with out the support of contractors, and war planners know it. But just imagine if war planners had to go to congress and instead of asking for 50,000 extra troops, they had to ask for 100,000 or 200,000? The sticker shock for 50,000 troops would freak out congress, and just imagine if they had to ask for twice or three times that? That is why contractors are a strategic asset. I also imagine that the war would have definitely turned out differently without this highly flexible and scalable work force and strategic asset called contractors.

Finally, there is the precedence that continues to be forgotten by all the experts that speak to congress about what is inherently governmental. In the constitution there is proof positive of the US government’s use of a private offense industry during times of war in the form of Article 1, Section 8, Paragraph 11 (or the Letter of Marque and Reprisal). We used privateers for offensive operations against our enemies, and it wasn’t a one time deal either. We heavily used privateers in both the Revolutionary War and War of 1812, and back then they were a strategic asset of those wars. That is what we used to go up against the world’s best navy at the time called the British Royal Navy. It was also the most cost effective use of private force for war time that I can think of.

Privateers were a part of the US government’s early use of ‘offense industry’ to not only destroy it’s enemies, but to also profit from the destruction of an enemy. It was also a way of raising man power at sea in a very rapid and scalable way, and involving the innovations and enterprising ways of private industry during times of war. Did I mention that congress issued 1700 Letters of Marque during the War of 1812 and that our country’s founding father Thomas Jefferson was a huge supporter of the concept? And yet this precedence continues to be conveniently forgotten and cast aside as insignificant at these hearings.

One final thing. There are examples of private industry being used in modern times as well, that would certainly helped to define what is ‘inherently governmental’. The awarding of the Medal of Honor to a civilian contractor named William Cody during the Indian Wars is significant to this discussion. The US allowing Claire Chennault and his Flying Tigers to conduct offensive operations for another country for the destruction of a mutual enemy, is another example of what I am talking about. The US endorsing the private volunteers that went to Israel to support their wars and raise their army and navy was significant. Even the issuing of a license by the Department of State to MPRI for giving key strategic guidance to the Croatians during the Balkan conflict would be considered a precedence as to what is ‘inherently governmental’.

Perhaps instead of dwelling on trying to erase or re-invent history with this ‘inherently governmental’ debate, we should instead invent a new definition as to what the defense of national security is? Because from where I stand, contractors have been extremely important to national security and to this country’s survival over the years, and yet folks are still wanting to destroy this strategic asset or weaken it. To me, all things must be considered during times of war, to include all and any means of using private industry. We had a good fix on that in the past, and yet with all of our modernity and current technologies, we are still incredibly ignorant and naive as to what kind of asset private industry can be during times of war. That is my thoughts on the matter. –Matt

Role of security contractors debated at hearing
By SARAH CHACKO
May 2, 2011
Contractor groups are taking issue with a commission’s recommendation to restrict the government’s use of private security workers.
“You don’t need James Bond to guard a gate,” Doug Brooks, president of the International Stability Operations Association, said during a Commission on Wartime Contracting meeting. “You need somebody who’s professional and disciplined and following the rules.”
The commission recommended in its February interim report to Congress that agencies should provide their own personnel for security operations.
Agencies are being forced to use contractors because of limited resources, commissioners said during Monday’s open comment session. (more…)

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Wednesday, July 7, 2010

Industry Talk: A Critique Of Professor Allison Stanger’s CWC Testimony On What Is ‘Inherently Governmental’

Filed under: Industry Talk,Letter Of Marque,Publications — Tags: Allison Stanger, commission on wartime contracting, congress, Industry Talk, inherently governmental, Letter Of Marque, privateers, security contracting, testimony — Matt @ 2:54 PM

Interesting testimony from Professor Stanger. Finally we are starting to see some movement towards acknowledging the existence of the LoM in DC, and it is fun to see where it goes. Although in the case with this testimony, Stanger forgot some key historical points to add to the inherently governmental debate. She sure did use the privateer analogy, but made no mention of their contribution or size of industry during the Revolutionary War or War of 1812.

Matter of fact, her entire testimony and point of view is lacking historical reference–as if contractors have no place in the history of this country. Of course that is totally wrong, and I think I have made a good case on this blog about that history. It is just troubling to me that a person of her stature and intellect would choose to ignore that stuff in such a key intellectual debate. I thought she was under oath? lol

I also wanted to post this, because much of her testimony is being quoted and used by the various critics and reporters out there covering this industry. So if everyone is rallying around her testimony, it is kind of important to read what she has to say, and give an alternative point of view to provide some balance.

What I will do is go through some of the key points and give the Feral Jundi point of view or POV. Maybe the professor can come up in the comments section and care to provide further input or explanation? Anyhoo, lets get started shall we?

Stanger Testimony: Contracting for moving security is largely a post-Cold War development, and our missions in Iraq and Afghanistan today are wholly dependent on it.

Feral Jundi POV: Actually, the history of privateers hauling colonists to the new world was the first use of armed contractors for a ‘moving security’ example. We also depended on contractors moving supplies during all of our early wars in the form of camp followers. The Pinkertons were used to protect Abraham Lincoln during the Civil War. During the Indian Wars and expansion into the West, armed security contractors were vital to the security of wagon trains, stage coaches, ranch/cattle protection, law enforcement, and scouts. “Eight civilians have received Medals of Honor including Dr. Mary Edwards Walker (the only woman to ever receive the award), one civilian scout and two civilian Naval pilots during the Civil War, and 4 civilian scouts during the Indian Campaigns (including William Cody…”Buffalo Bill”).” America has a rich history of contracting with armed security for protection or combat operations that certainly required ‘moving security’.

Stanger Testimony: Using Friedman’s minimalist definition, the use of contractors in the realms of security and justice demand the strictest scrutiny. Even under this leanest of definitions, moving security contractors are performing inherently governmental functions, since they are actively involved in defending the nation against foreign enemies.

Feral Jundi POV: Allison forgets that defending a nation against foreign enemies is the first point mentioned by Friedman, in his minimalist list, and the most important. To me, a nation’s first goal above all else is survival. To use all and any means necessary and available to defend a nation. That means using a standing army and private industry if necessary. Yet again, the historical context for this argument is the existence of Article 1, Section 8, Paragraph 11. It’s existence symbolizes our nation’s desire to uphold the right to use private industry during times of war, and the clause for granting Letters of Marque and Reprisal is right there next to the authority to Declare War. That is significant.

And from a strategist’s point of view, I want every available tool in my hands to conduct war and defeat an enemy. It is why George Washington relied upon his standing armies, his volunteer militias, as well as his privateers, and it is why we are using private industry in such a way now. It answers a need for manpower.

You could also make an argument that the Second Amendment is an essential tool for the defense of a nation. ‘A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ So would Milton Friedman or Allison Stanger argue that the Second Amendment conflicts with what their definition of inherently governmental is or what the state should allow for the defense of a country?

Stanger Testimony: There are additional grounds for concern about the use of armed security contractors that have yet to receive appropriate attention. From a constitutional perspective, Article I, Section 8 of the US Constitution gives Congress the power to grant letters of marque and reprisal, yet armed privateers have been deployed in both Iraq and

Afghanistan without such explicit authorization.

Feral Jundi POV: This is the key point of this whole testimony that I wanted the reader to focus in on. Allison brought it up, but it is interesting to me that she would make no recommendations for congress to actually use it? Nor did she care to elaborate on the significance of this law. That it does symbolize America’s relationship with armed security and private industry during times of war. By not bringing that history into the discussion, the commission has nothing to really build off of for an opinion on the law itself. If I were to advise congress, I would just tell them that they have had the power and right to do anything they want (and for a long time) in regards to controlling and licensing private industry during times of war. They are law makers, they have the law to do such a thing in their war fighting tool kit, and they could have actually set up the kind of legal conditions and checks and balances with private industry that this whole commission is concerned with trying to understand.

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Friday, June 18, 2010

Industry Talk: CSPAN–War Time Contracts And Private Security Firms

Filed under: Industry Talk,Video — Tags: CSPAN, Industry Talk, inherently governmental, private military companies, private security firms, security contractors, war time contracts — Matt @ 3:09 PM

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Friday, June 4, 2010

Call To Action: Give Your Input On What Is ‘Inherently Governmental’

Filed under: Call To Action,Industry Talk — Tags: Call To Action, federal, inherently governmental, private military companies, private security, regulations, security contracting — Matt @ 11:22 AM

This is a simple one. If you think your work as a security contractor overseas is not an ‘inherently governmental’ job, then let these folks know what you think. There is little consensus going on with this debate, and I think the one voice that is missing in this discussion are the guys out in the field who are doing the job. I think security contractors and private industry are capable of doing this work, and have been doing so for awhile. Government should focus on regulation and law making, and enforce those regulations and laws so private industry can be put in check.-Matt

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Go here in order to submit a comment about what you think is inherently governmental.

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Inherently governmental rule sparks little consensus

By Robert Brodsky

June 3, 2010

More than 100 individuals and organizations have offered public comments on a proposed rule change that would help clarify the types of government functions that are suitable for outsourcing.

On Tuesday, June 1, the comment period ended for a proposed policy memo by the Office of Federal Procurement Policy that would establish a single definition of inherently governmental functions, or those duties forbidden from outsourcing.

The notice, which was posted in the Federal Register in late March, also instructs agencies to avoid an overreliance on contractors for functions that are “closely associated with inherently governmental” or are “critical” for their missions. Contractors can perform work that fits into these two categories if agencies are capable of providing increased oversight and management, the rule said.

In the past three months, trade groups, labor unions, contracting attorneys and citizens with an interest in government contracting have offered 118 suggestions and comments on the proposal.

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