Feral Jundi

Tuesday, April 17, 2012

Legal News: DoS Statement On The Comprehensive Contingency Contracting Reform Act Of 2012

Filed under: Legal News — Tags: , , , , , , — Matt @ 1:20 PM

This is cool. Patrick Kennedy is commenting on this reform act, which will certainly have an impact on contracts with the government for future and current contingency operations. There is also a video of his testimony.

What is of interest is State’s concern of how this law would negatively impact the flexibility they require in order to deal with today’s problems. The Arab Spring is just one example of how quickly things can change out there. Here is the quote:

With regard to the automatic suspension provisions set out in proposed Section 113, we believe that the current, long-standing policy requiring a reasoned decision from the SDO based on a totality of information remains a sound approach, and would have concerns with a provision that imposes automatic suspension and debarment which will likely lead to due process challenges by the affected contractor community and potential court action that could delay necessary action in crisis situations.
Reorganization of Contracting Function (Sec. 131)
We respectfully do not concur with the re-organization of our contracting function proposed in Sec. 131. Defining the acquisition organization of the Department of State in statute would reduce our flexibility and codify the structure, making future adjustments to support new 21st century challenges cumbersome and time consuming. Future legislation would have to be drafted and passed to allow the Department to adjust to the fast changing world of diplomacy, rendering the Department less agile and thereby potentially handicapping the Department’s ability to respond to contingencies. Also, the proposed re-organization would constitute a bureau with not only the contracting function but logistics, motor vehicles, diplomatic pouch, household effects, shipping and storage. If a bureau were to be formed with only the contracting program, it would not be of sufficient size to warrant bureau-level status.

Probably the most relevant section of the statement to the readers of this blog was point about PSC’s and command and control. Here is the quote:

Private Security Contractors (Sec. 202)
The Department has a long history of using contract guards for protection of facilities and personnel stretching back to the 1970s, with enhanced capabilities in the 1990s. Private security contractors (PSCs) are critical to our readiness and capability to carry out American foreign policy under dangerous and uncertain security conditions. Maintaining this capability is particularly important when the Department is taking on expanding missions in contingency operations environments or areas that are transitioning from periods of intense conflict, such as in Iraq and Afghanistan.
That said, we appreciate the intent of section 202. We have sought to reduce risks associated with using contractors through robust oversight of our PSCs, as in CWC Recommendation 4. Contractors are operationally overseen and contractually managed by direct hire Department of State personnel, and we have instituted cultural training requirements, and contractor behavioral standards of conduct to ensure the professionalism of PSC personnel. The Department is staffed to properly oversee PSC compliance with these contractual requirements in Iraq and Afghanistan.
State strongly disagrees with the language of paragraph Sec. 202 (b)(1), which has the combatant commander determining whether performance of security functions by contractor personnel for the Department of State in overseas contingency areas is appropriate and necessary. This language is too open-ended and is not acceptable as it infringes upon the Secretary of State’s primary role in leading and carrying out foreign policy. The Secretary of State and the Chief of Mission have statutory responsibility for the safety and security of personnel under Chief of Mission authority. We routinely discuss the security situation in-country with DoD and other agencies present at post; and in situations where U.S. military forces are present, that coordination is intensified and ongoing. We fully comply with OFPP’s new Policy Letter on inherently governmental and critical functions, and our PSCs never engage in combat operations. We hope to work with you and your staff to find mutually acceptable language in this section.

What is interesting here is that 202 (b) (1) is a challenge to State’s control over their security force. It also causes confusion over who is really in charge of that force, which is not good in contingency operations.

If anything, the two groups should work together to ensure State’s security force is on the same sheet of music with the mission. Unity of effort is what should be the focus. But the language of this section is vague as to who is really in control of those forces. So I think State has a point here, but that is my personal opinion. Either way, check it out. –Matt

 

The Comprehensive Contingency Contracting Reform Act of 2012
Testimony
Patrick F. Kennedy
Under Secretary for Management
Statement before the Senate Committee on Homeland Security and Governmental Affairs Committee, Subcommittee on Contracting Oversight
Washington, DC
April 17, 2012
Good morning Chairman McCaskill, Senator Portman, and distinguished members of the subcommittee. Thank you for your invitation to appear here today to discuss Senate bill 2139, the Comprehensive Contingency Contracting Reform Act of 2012.
We share the Committee’s desire to ensure that efforts continue to strengthen contingency contracting. S. 2139 raises a number of important issues. While our review of the bill is ongoing, we welcome the opportunity to discuss our initial views on the bill’s provisions.
We understand that this legislation builds on the recommendations of the Commission on Wartime Contracting in Iraq and Afghanistan – an independent, bipartisan panel that you, Senator McCaskill, created along with Senator Webb in 2007. The State Department worked continuously with the Commission on Wartime Contracting (CWC) from when it was formed in early 2008 until it sunset last August, and gained valuable insight from the Commission’s efforts. We have taken many steps to improve our contingency contracting over the past several years, based on the CWC’s reports, recommendations from other oversight entities, and our own lessons learned.
The Department’s participation in CWC’s study was headed by the Office of the Under Secretary for Management and the Bureau of Administration. In addition to numerous meetings with the CWC, senior Department officials testified at seven formal CWC hearings.

(more…)

Tuesday, April 10, 2012

Maritime Security: The Insanity Of ‘Catch And Release’

Filed under: Legal News,Letter Of Marque,Maritime Security — Tags: , , , , , , , , , , , — Matt @ 1:49 PM

A EU NAVFOR spokesman was unable to provide Sky News with a figure for how many suspected pirates had been returned to Somalia without charge.
“I don’t have the number for those returned to Somalia – a number of reasons but largely because it was not initially considered important to maintain the number,” the spokesman told Sky News. -Link to quote here.

This is the part of our global anti-piracy campaign that absolutely kills me. It’s as if these navies are sport fishermen, and they are releasing their catch so it can grow bigger, and spawn more fish, so they have more fish to ‘catch and release’ in the future.

Now of course we are dealing with the legal mechanisms, or lack there of, of each country that has laws that deal with piracy.  So when a navy captures a pirate or suspected pirate, those navies are operating under the guidelines of those laws. Because these countries have not implemented sound anti-piracy laws, we unfortunately see pirates captured and then release because of some legal mistake or loophole. Or, those that did the arresting of the pirates did not capture and detain properly, or properly document or obtain witnesses, etc.

So who are the worst offenders of ‘catch and release’?  That is a good question and I tried to do a little search for any comprehensive reports on this problem. Below, I have found a few recent articles on Canada and the UK, and their deficient legal mechanisms in place for prosecuting pirates. Here is a sample for the UK.

Fewer than one in every five suspects picked up around the Horn of Africa over the past four years have been prosecuted for piracy-related offences, the Ministry of Defence has admitted. The figures will fuel growing criticism of Britain’s involvement in the anti-piracy operation.
Official MoD figures obtained by The Independent on Sunday show the Royal Navy has boarded 34 vessels suspected of piracy in the Indian Ocean since volunteering to lead Operation Atalanta, the EU’s first naval mission, in 2008. However, on all but six occasions, the gangs rounded up were taken to the nearest beach and released – despite often being caught with equipment including guns and ladders. A list of boardings since November 2008 shows that the navy has detained a total of 279 likely pirates but allowed 229 of them to go free, some in groups of up to 17 at a time. Fifty more were sent on for prosecution in Kenya, the Seychelles or Italy.

Amazing. This is just insane, and this practice of catch and release must end.  Also, I wanted to mention that all the nations involved have had similar catch and release stories, so the UK or Canada are not the only ones. I have been documenting this for awhile now, and it is very frustrating.

I also wanted to mention that we are missing opportunities of detention by not allowing private security companies to detain and arrest these pirates. Every engagement could turn into an arrest and a removal of these criminals off of the high seas. By issuing Letters of Marque to PSC’s or the captain on these boats, nations could give them the same arresting powers that their navies currently have.

Within the terms of the LoM, you can define exactly how arrests are to be done and the specific rules for detention and transportation of prisoners. A country can also offer bounties for each pirate that was legally detained and prosecuted. We have GPS and video filming capability, and these can all be tools required under the terms of the LoM in these modern times.

As it stands now, security companies are executing the ultimate in extreme justice on the high seas. That would be actually killing pirates during the defense. So the question I have is why is killing pirates more appropriate than detaining them? If anything, a security company should have the option of capturing those pirates instead of just killing them. It would also take a load off of the larger navies who are tasked with anti-piracy.

So why capture them alive? Well, for intelligence purposes, a pirate that is alive and talking, is far better than a dead one. Also, by capturing them, we take them out of the game.  Of course killing them takes them out of the game permanently, but sometimes killing these pirates is not feasible within the course of current rules of engagement.

In one scenario, what if the pirates attacking the ship decided to stop their attack and just give up for whatever reason? Or during their attack, their engine fails and they get within killing range–so they raise their white flag right there. Does an armed guard execute these pirates who are trying to give up, or do they detain them? Or do we just let them go?  And also, if that pirate vessel is no longer sea worthy because armed guards made it so, and now pirates are sinking, is there any obligation at all to save and detain those pirates? These are all questions that could be answered with an effective Letter of Marque regime and bounty program, that makes capturing pirates something of interest to security companies on these vessels.

I mention bounty, because even with a LoM, security companies will not be entirely motivated to detain. An effective bounty or reimbursement program would be necessary to make up for the costs of such an offense industry. You must also incentivize the process in order to create a vibrant offense industry. A company would be risking life and limb to go that extra mile to capture a pirate crew, so companies must have some mechanism in place for compensation.

So those are my thoughts on the whole thing. The laws dealing with piracy need to catch up, and we also must look at legal mechanisms that will help to make the elimination of piracy more efficient and effective. –Matt

 

Navy frees four out of five suspected Somali pirates
Britain criticised for ‘particularly poor record’ in international crackdown on Indian Ocean piracy
Brian Brady
Sunday, 8 April 2012
Hundreds of suspected pirates arrested by the Royal Navy off the coast of East Africa have been immediately set free – to continue threatening merchant vessels in one of the world’s busiest shipping lanes. Fewer than one in every five suspects picked up around the Horn of Africa over the past four years have been prosecuted for piracy-related offences, the Ministry of Defence has admitted. The figures will fuel growing criticism of Britain’s involvement in the anti-piracy operation.
Official MoD figures obtained by The Independent on Sunday show the Royal Navy has boarded 34 vessels suspected of piracy in the Indian Ocean since volunteering to lead Operation Atalanta, the EU’s first naval mission, in 2008. However, on all but six occasions, the gangs rounded up were taken to the nearest beach and released – despite often being caught with equipment including guns and ladders. A list of boardings since November 2008 shows that the navy has detained a total of 279 likely pirates but allowed 229 of them to go free, some in groups of up to 17 at a time. Fifty more were sent on for prosecution in Kenya, the Seychelles or Italy.
The Government has acknowledged the “catch and release” strategy is often an “unsatisfactory outcome”, although ministers also maintain it helps to disrupt pirate networks.

(more…)

Tuesday, March 27, 2012

Legal News: GardaWorld Contractors Charged With Weapons Smuggling In Afghanistan Declared Innocent And Freed

Filed under: Afghanistan,Legal News — Tags: , , , , , — Matt @ 2:55 PM

Thanks to Kimberley for giving me the heads up on this. This is great news and I am glad these two British security contractors and two local nationals (I am assuming) were freed and declared innocent. No word if the company had to use bribes or some kind of cash payment to get these guys free, or if a court of law legitimately released them based purely on their innocence.

I would also be curious about these other two local Afghan contractors, just because nothing was mentioned in the story about their status. Logic being that they were released along with the two Brits, but you never know?  Either way, it is still great news. –Matt

Edit: 04/21/2012- Just to update everyone on this, Kimberley was able to secure the release of all four contractors and they were all released the same day. She also represented all four – two Brits, two Afghans.

 

Two Britons released after Afghanistan arrest
Mar 20, 2012
Two British men arrested in Afghanistan with 30 AK-47 assault rifles have been released and cleared after a January arrest for weapons smuggling, their Canadian employer said Tuesday.
Julian Steele and James Davis were detained while driving through Kabul with the rifles, whose serial numbers had been erased. The Afghan government said the men did not have proper documentation for carrying weapons and were charged with illegal weapons smuggling.
“I can confirm that they were freed and declared innocent,” GardaWorld security firm spokeswoman Nathalie de Champlain told AFP in Montreal, without providing further details.
The firm, which provides global risk consulting and security services, has long denied the allegations, saying the weapons were “properly licensed” and were being taken to be tested at a shooting range for future purchase by GardaWorld.
Two Afghan nationals traveling with the men were also detained.

(more…)

Friday, March 23, 2012

Publications: Structuring A Sustainable Letters Of Marque Regime, By Lieutenant Todd Hutchins

Filed under: Industry Talk,Legal News,Letter Of Marque,Publications — Tags: , , , , , , — Matt @ 12:07 PM

A big hat tip to David Isenberg for finding this paper and writing an excellent article about it. Also bravo to the California Law Review for publishing this paper and hopefully between this site and David’s, we can really promote this thing. I am always on the lookout for modern legal interpretations of, and the possible uses for the LoM.

It is also cool that the author of this paper is an officer in the US Navy and a current JAG student. Maybe he can come up and talk a little about any feedback he has received for this paper, and the reason why he chose this particular topic.

Now for a couple of points of interest. Lt. Hutchins is more focused on an international LoM system, as opposed to countries issuing LoM’s. You know, I don’t think this approach would work, just because personally speaking, I would rather answer to the laws and customs of my own country versus answering to an international court. What is to prohibit any biases towards me and my nationality in such a international court?  So personally, I would much rather have a LoM issued by a country whose legal system I trust and would give me the best odds in a trial of my peers–from my country.

I still think companies would seek an internationally issued LoM. Especially if the profit margin was there. If it is not, then the risk will definitely not equal the reward and this industry will not thrive. You really need to make the enemy into the ‘Blufin Tuna’ or ‘Buffalo’ of prizes.

Which brings me to my next point. Offense Industry requires a strong profit motive for the destruction or capture of a declared enemy. The reward must equal or be greater than the risk in this case. I tend to lean towards greater than the risk, just because we want extreme competition for this highly valuable enemy.

So the question with this is if the enemy has enough assets that can be seized and decided upon in a prize court. The guys with the money are on land or hiding out in Dubai or wherever. How will a company be able to seize their assets on the international stage?

Now privateers like Captain Morgan did do land raids to capture enemies and their assets. He was quite successful at it, and if we were to target Somali pirates, then allowing companies to raid wealthy Somali investors in Somalia or elsewhere would be key. But then that would require special agreements with those countries that these investors are hiding in. The LoM would have to be very specific and comprehensive in this regard.

Or, the issuing party could throw in bounties and create a false market out of the whole thing. To artificially attach value to these targets, as well as allow companies to seize assets. That to me would be optimum, just because you really have to sweeten the pot for companies to get involved with this thing. Perhaps the 10 percent that governments would receive via prize courts, would go back into the pot for bounties and costs of running prize courts?  Raising money for bounties is a factor when creating artificial values of targets.

I also applaud the author for identifying how expensive the current Defense Industry is for maritime security. I have mentioned in the past that DI’s are costly, and they do nothing to eliminate the problem. If anything, DI’s profit from the continuation of war or piracy, and it is against the best interest of these participants to remove the very thing that gives them their reason for existence. But DI’s have their place, and I believe that in order to reduce the costs of DI, you need to also implement an offensive capability. You will always need guards to protect that in which you love, but you must also have a force tasked with hunting the bad guys–to keep them off balance and put them on the defense. And ultimately, you would like to make piracy into a very unprofitable game for all parties thinking about getting into that business.

Finally, I would like to add one more deal to this review, just to emphasize the significance of profit and reward in warfare. This quote comes from Sun Tzu.

Now in order to kill the enemy, our men must be roused to anger; that there may be advantage from defeating the enemy, they must have their rewards…Therefore in chariot fighting, when ten or more chariots have been taken, those should be rewarded who took the first. Our own flags should be substituted for those of the enemy, and the chariots mingled and used in conjunction with ours. The captured soldiers should be kindly treated and kept….This is called, using the conquered foe to augment one’s own strength.- Paragraphs 16, 17, 18, Chapter 2, ‘Waging War’.

Even Sun Tzu understood the value of reward in war.  Might I add that the interpretation of ‘rewards’ refers to spoils, and not some ideological reward of just ‘winning’. Although that has it’s place for incentive, but feeling good about a win does not pay the bills as they say. lol

I should also note that Sun Tzu also delved into the concept of the cost of protracted war. It is expensive, and if there is no element of a strategy focused on eliminating an enemy, and industry is only used for defense, then the costs will continue to drain the treasures of those nations and companies with interest in the matter.

There is no instance of a country having benefited from prolonged warfare…It is only one who is thoroughly acquainted with the evils of war that can thoroughly understand the profitable way of carrying it on. –Paragraphs 6,7, Chapter 2, ‘Waging War’.

That pretty much sums up why wars should be fought as quickly as possible, and why there should be thought about creating an industry that profits from ending it, and not ‘carrying it on’. Something to give balance or even counter strong DI’s that come about from prolonged warfare. –Matt

 

 

Structuring A Sustainable Letters Of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pira…

Friday, March 2, 2012

Legal News: McCaskill, Webb Introduce Comprehensive Contracting Reform Legislation

Filed under: Legal News — Tags: , , , , , , , , — Matt @ 12:27 PM

Thanks to POGO for posting this news and I would love to hear some feedback from our community on this. As an American and as a tax payer, I am all about contracting reform that leads to savings and minimizing waste and fraud. As a contractor, I am also enthused because I want to see good companies rewarded, and poor companies punished in this industry. Any tools that help make this process called contingency contracting more efficient, an asset to national interest and security, and rewards good behavior/punishes bad when doing business with private industry, is a good thing.

Below I have posted two videos made by the Senators that describe this legislation and all of the work that went into it. POGO provided a basic summary of some of the key points in this legislation on their website and here is a PDF of the legislation.

I guess the only reservation I have is the secondary effects of legislation like this. It is very hard to tell how some of this stuff will impact the guy on the ground. Will it increase the quality of contracts out there?  Will it hinder my ability to provide security services on these contracts?  Will this legislation hamstring national security, or enhance it?

Another fear is that now that the wars are winding down, that the lessons learned about contracting during war time will disappear or be marginalized. They mentioned this fear in the videos below, and it is food for thought.

My final point is that bravo to both Senators for recognizing the value of contractors. We are the other ‘All Volunteer’ force that makes our current volunteer military system work. These wars would have been radically different if the forces and support forces were raised by a draft. I personally think that a military supported by a contractor force is far more effective than a ‘slave army’.

A slave army is one where many of the participants are there because they are forced to be there. There is quite the difference between a military and contractor force filled with folks who want to be there or want to fight, and a conscripted military partially filled with folks who do not want anything to do with fighting or being in a war.

This system makes all the difference for war planners and political leaders who need time and flexibility when fighting an enemy and/or country that is not easily defeated within a short period of time. They need that flexibility for the politics of war, and they need that flexibility when situations change dramatically in a war–like losing partners in a coalition.

Does it make it easier for a country to go to war?  Maybe. Or maybe we have developed a way of warfare that fits well within the mindset and fabric of a modern liberal democracy? It also fits well within the plans of strategists and leaders tasked with protecting this country and supporting national interest. –Matt


McCaskill, Webb Introduce Comprehensive Contracting Reform Legislation

Wednesday, February 29, 2012
On Wednesday, February 29, 2012, Senators Claire McCaskill and Jim Webb introduced legislation to overhaul the federal government’s planning, management, and oversight of wartime contracting.  The Senators’ comprehensive reform legislation (S. 2139) builds on the recommendations of the U.S. Commission on Wartime Contracting in Iraq and Afghanistan – an independent, bipartisan panel that Senators McCaskill and Webb created through legislation they introduced in 2007.
Press release here.

 

 

« Newer Posts — Older Posts »

Powered by WordPress