Feral Jundi

Thursday, September 29, 2011

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

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…)

Monday, July 18, 2011

Maritime Security: Anti-piracy Consultants In Search Of Asian Clients

The move reflected growing interest by Hong Kong and mainland shipping companies to use armed guards to protect their ships and crews while sailing through pirate-infested waters in the Indian Ocean, Arabian Sea and Gulf of Aden.
Gibbins said the firm had seen business grow 140 per cent so far this year compared with last year as the global shipping industry increasingly used armed personnel. “We’ve been working for two years and clocked up 1,000 transits. We’ve deterred 23 attacks, all of which avoided any lethal force,” he said.

Every once in awhile, an article comes up that is just full of interesting data. This article is short, but filled with some key points that have helped to identify a trend here. That the armed maritime security business is on the rise, and expanding.

The article mentioned a familiar company called PVI or Protection Vessels International. This company was identified as one of the top Maritime Security companies that guys wanted to work for in my last survey, and it is great to see a good company expanding and doing well.

What was also interesting is that the author identified a trade industry called the Security Association for the Maritime Industry or SAMI. This trade group is doing some good work, and namely trying to organize and hold it’s members to some standard. Which is great, because at this time, there is no one regulating the maritime security industry. A group like this can also help shipping companies to determine who the good companies are..kind of.

On the other hand, SAMI will run into the same problem that ISOA has when it comes to dealing with a member company that screwed up. Or how they deal with member companies when one of us contractors files a legitimate claim of abuse and violation of the code that the company signed on to follow. Will they truly punish one of their members when they do bad, or even take away their membership?  What kind of teeth does SAMI have to actually police their own is the question, and that will be the indicator of it’s true strength as a group.  Or is this just another club for companies to join, and say ‘look, we are members, so we must be good’.

Which this brings us to the road that I keep ending up on when we talk about this stuff. We can have associations and trade groups and clubs all day long, but unless we have legal authority or license to do what we are doing, then all of these self imposed regulations and policies are just kind of weak. A Letter of Marque is a license that comes directly from the highest authority of any country, and it is a license that is backed up by hundreds of years of use. If a country is willing to put it’s flag on a vessel, then why are they so afraid to put that same flag on an armed security team in the form of a comprehensive LoM that is backed by a bond?

I mean if I have to get the SSO, STCW 95, ENG1, TWIC, Yellow Fever and  Seaman’s Kit Book for a job, I guess I will do it. But the ultimate would be an LoM. And even with an LoM, you would probably run into issues when dealing with other countries out there, but at least you would have a license of true significance.

On another note, if you look at that list of member companies at SAMI, you will have quite the list of maritime security companies to submit resumes and CV’s too. You can do the same over at the ISOA, and that is a great way of identifying those companies who are players out there.

Finally, another point to make here is the market of armed maritime security work is expanding quickly. Lots of countries are getting on the band wagon of armed security, which is great. But what I would like to see, are more of the larger companies getting into the game.  Of course all of the government related contracts in Iraq and Afghanistan are the cash cows of these companies, but as the war winds down and there becomes less and less demand for armed security in the war zones, then it would make sense that some of these companies would look at maritime security as a potential market. I think there is room for a lot more entry into this market, and especially if companies like PVI have seen a ‘140 percent increase’ in business just in this year alone.

As more vessels get armed security, the vessels that do not have security will get an increase in attention by the pirates as well. So the market will be expanding quickly as the ratio of unprotected vessels decreases–less boats, yet the same amount of pirates, and probably an increase in attacks against unarmed vessels. Remember, the pirates are using scouts and hacking emails and doing whatever they can to find out who has security, and who does not. It is this environment that security companies should examine, and understand that now is the time to enter the market if you are looking for other business.-Matt

Anti-piracy consultants in search of Asian clients
By Keith Wallis
Jul 17, 2011
One of the largest companies providing armed guards for shipowners is to open an office in Hong Kong next month to help develop closer business links with Asian shipowners.
Commenting on the move, Paul Gibbins, director of communications for Protection Vessels International, said: “We are looking for further opportunities in that part of the world.”
Shipping industry insiders said on Friday that the company’s executives would visit Hong Kong this week to meet shipowners before opening an office in the city early next month.
Gibbins said most of the firm’s clients are owners and managers in northern Europe and the company was keen to broaden its customer base. Ian May, who will head the Hong Kong office, would look for opportunities throughout Asia and allow the company to have a closer physical presence in Asia’s shipping community.

(more…)

Sunday, May 8, 2011

Bounties: The Truth About Geronimo…And Usama Bin Laden, By Benjamin Runkle

The original Geronimo campaign and the hunt for bin Laden share plenty of similarities. On May 3, 1886, more than a century before a $25 million reward was offered for information on bin Laden’s whereabouts, and almost 125 years to the day before the al-Qaeda leader’s death, the U.S. House of Representatives introduced a joint resolution “Authorizing the President to offer a reward of twenty-five thousand dollars for the killing or capture of Geronimo.”

Excellent little article about the comparisons between these two manhunts. But what is really interesting to me is that back then the President was authorized by congress to issue a bounty for the killing or capturing of Geronimo.  So does that mean that a bounty was paid to the members of Lt. Charles Gatewood’s small five man party that sealed the deal on Geronimo?  Mind you that this party was composed of ‘two Apache scouts, an interpreter and a mule-packer’.  Not bad for such a small team, and it reminds me of the effectiveness of the small teams required for the capture of UBL.(on a side note here, no one has been awarded the millions in bounties that UBL had on his head)

Which brings me to my next point.  It is not the size of force or intelligence apparatus, but the quality and effectiveness of such a thing.  In both cases, it was not a large army that was able to find these guys and put them away.  It was small teams. And in both cases, these teams were tipped off to the location of their guy by a local or a detainee.  So what does that say?

Could this indicate that small companies or units are more capable of finding people, than large cumbersome armies? I think so.  I also think that bounties can work, if they actually support a vibrant ‘offense industry’.  The bounty for Bin Laden did not support the kill or capture by companies or individuals, and only depended upon an individual to come forward with a tip.  That’s if they would come forward.  If a company was tasked with finding and capturing/killing UBL or any of the other leaders, then they too could use a bounty system to get their information locally. Or use whatever means, based on the guidelines and laws of a issued license.

The other point I wanted to make is how long and how costly this manhunt has been.  According to this author in the Atlantic, the total time for the hunt of UBL was 15 years at a cost of 3 trillion dollars. I cannot even imagine what 3 trillion dollars looks like, but I do know what cost effective is.  This hunt for UBL was not cost effective, and I definitely think that there is another way to go about this task. Not to mention the lives lost in this long war.

Finally, there is the question of violating a country’s sovereignty in order to go after an individual(s). We definitely crossed Pakistan’s border with military force, landed on their territory, killed UBL and several others, and took materials from this compound.  All of these acts were done without the permission of Pakistan, and I am sure it will have it’s repercussions.(logistics for Afghanistan come to mind) But my point is that the US authorized this act at the highest levels.  So the US has now set a precedence and has deemed this a necessary act for national security.  I agree and applaud the President for making this move, but the US must also consider that Al Qaeda is still operating and still out there.

It will take many raids, and many small teams to reach all of these groups and violate the sovereignty of many countries out there in order to accomplish what we just did in Pakistan.  If such acts are this important to the national security of the US, then I do not see how issuing Letters of Marque and Reprisal to private industry to help in this endeavor would be considered that much more of a stretch? Or we can continue to spend trillions of dollars on large scale military deployments in places like Iraq or Afghanistan, violate those country’s sovereignty with large scale occupation, all to find these people? Something to think about when talking about waging war efficiently and using the right tool/strategy for the job.

On a side note, Benjamin Runkle has put together an excellent blog to coincide with the topic of his book called Wanted Dead or Alive: Manhunts from Geronimo to bid Laden. I have put his blog in my RSS reader, and this is an area of study that everyone should take a look at if they are interested in the method behind ‘finding’ bad guys.-Matt

The truth about Geronimo .. and Osama bin Laden
By Benjamin Runkle
May 6, 2011
“Geronimo!” That was the call that went over the command net on May 1, indicating that Navy SEALs had found their man. And that code name for Osama bin Laden has angered some Native Americans, who have demanded a formal apology from the Obama administration.
Their complaints are understandable, but misguided. The code name doesn’t denigrate the Apache war captain, a hero to some students of Native American history, through comparison to the Saudi terrorist leader. The similarities are not in the men themselves but in the military campaigns that targeted them.
In May 1885, Geronimo led the breakout of 120 Chiricahua Apache from the San Carlos Reservation in what is now Arizona, creating mass hysteria in the American Southwest. The Chiricahua had legitimate grievances: Civilian “Indian agents” were corrupt and consistently cheated the Apache on their rations, while the land the tribe had been given was almost worthless for farming but still encroached upon by miners. (more…)

Tuesday, January 12, 2010

Maritime Security: Dr. Ron Paul On Piracy And The Letter Of Marque And Reprisal

Tuesday, December 15, 2009

Mexico: Drug Cartels Siphon Liquid Gold

Filed under: Crime,Mexico — Tags: , , , , , — Matt @ 8:32 AM

“Every possible encouragement should be given to privateering in time of war.” -Thomas Jefferson 

*****

   Now this is ridiculous. Yet again, my solution to this is simple.  The Mexican government should issue Letters of Marque and Reprisal to companies, both foreign and domestic, and give them the legal authority to destroy the cartels and get a percentage of what these animals own.  You create a free market based killing mechanism, and allow it to do it’s thing, and I guarantee you will see these vile organizations dry up.

   They are a threat to Mexico and to the free world, and I just don’t see the current drug war strategy working out too well. Actually, it is a dismal failure, and we are witnessing how bad it really is. I say diversify, and allow private industry to help, much like how private industry helped out my country during the Revolutionary War and the War of 1812.

   Thomas Jefferson, one of the founding fathers of my country, was a smart man.  His quote about privateering rings true today, as it did several hundred years ago.  I owe the survival of my country, in part, to the concept of privateering. So there must be something there, and especially if it was written into my country’s constitution. Too bad that weapon of warfare just sits over the mantel and collects dust like some old rifle from a war long ago.-Matt

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Mexico’s drug cartels siphon liquid gold

Bold theft of $1 billion in oil, resold in U.S., has dealt a major blow to the treasury

By Steve Fainaru and William BoothSunday, December 13, 2009

MALTRATA, MEXICO — Drug traffickers employing high-tech drills, miles of rubber hose and a fleet of stolen tanker trucks have siphoned more than $1 billion worth of oil from Mexico’s pipelines over the past two years, in a vast and audacious conspiracy that is bleeding the national treasury, according to U.S. and Mexican law enforcement officials and the state-run oil company.

Using sophisticated smuggling networks, the traffickers have transported a portion of the pilfered petroleum across the border to sell to U.S. companies, some of which knew that it was stolen, according to court documents and interviews with American officials involved in an expanding investigation of oil services firms in Texas.

The widespread theft of Mexico’s most vital national resource by criminal organizations represents a costly new front in President Felipe Calderón’s war against the drug cartels, and it shows how the traffickers are rapidly evolving from traditional narcotics smuggling to activities as diverse as oil theft, transport and sales.

Oil theft has been a persistent problem for the state-run Petroleos Mexicanos, or Pemex, but the robbery increased sharply after Calderón launched his war against the cartels shortly after taking office in December 2006. The drug war has claimed more than 16,000 lives and has led the cartels, which rely on drug trafficking for most of their revenue, to branch out into other illegal activities.

(more…)

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