Feral Jundi

Wednesday, January 18, 2012

Letter Of Marque: World Food Programme Privateers?

Filed under: Africa,Letter Of Marque,Publications — Tags: , , , , , — Matt @ 10:44 PM

Yep, in this conference, the idea of using privateers and the Letter of Marque was brought up as a means of protecting World Food Programme vessels. How cool is that? Not only that, but the idea was brought up in a conference filled with Ambassadors, academics, UN folks, PMSC folks, NGO’s etc. Here is a quote and page number if you would like to check it out.

Potential problems with the use of PMSCs in counter-piracy efforts, according to Mr Stupart, include firstly the issue of legality, where the use of PMSCs under current international maritime law is not very clear. In order to overcome this issue, calls for the reintroduction of the Letters of Marque have been suggested. The letters of Marque refers to the definition of piracy, the jurisdiction being decided upon, and the rules of engagement being determined by the flag state under which the vessel operates. Another issue raised by Mr Stupart relates to the possible escalation of violence. If pirates feel a risk due to the arming of vessels with PMSCs, they may adopt more aggressive tactics. This will be a major problem, especially for all merchant vessels that are not escorted or guarded by PMSCs. -From the section WORLD FOOD PROGRAMME PRIVATEERS – OUTSOURCING HUMANITARIAN AID IN THE GULF OF ADEN MR JOHN STUPART, Page 18

The other interesting thing about this conference is that it goes into some of the details of PMSC involvement in Africa. Places like the Sudan or Somalia, and that is great to hear. Most of all, the support for this industry was favorable as well. We are the go to forces for protecting these humanitarian operations and it was clear to me that the conference did recognize our value.

On the other hand, the recurring theme throughout the conference was the lack of legal authority or accountability with the various PMSC’s in Africa. So yes, the humanitarian assistance industry wants to use our industry, but they also do not want to get in trouble legally because of the actions of their security forces.

And of course, the classic principal agent problem comes up, and that is a constant theme everywhere in the world when it comes to contracting. A poorly written contract, a lack of oversight over the project, etc. are all issues that need to be worked out and discussed so you can responsible contract the services of a good PMSC.

Here is another quote in the conference that summed up quite nicely why there is such an interest and demand for PMSC’s in Africa.

Mr Chris Kwaja began the fourth session with an interrogation of the rationale and centrality of non-state military and security providers in the provision and delivery of humanitarian assistance operations in Darfur/Sudan. He argued that the rise of PMSC involvement in humanitarian assistance operations was due to the rising amount of armed conflicts and the inability of states to contain these conflicts, the decline of state troop contributions, the success and popularity of neo-liberalism which encouraged private sector involvement and the weakness of states to fulfill their constitutional obligations of security provision for the masses. Mr Kwaja also stated that PMSCs were arguably able to fill the capacity gap in terms of high-tech skill provision, that national militaries lack. -From the section FROM COMBAT TO NON COMBAT ACTION: PMSCS AND HUMANITARIAN ASSISTANCE OPERATIONS IN DARFUR/SUDAN MR CHRIS KWAJA, Page 15

This is why I perked up with what was discussed in this conference, along with the mention of the Letter of Marque. To me, these folks were not focused on trying to get rid of us, but on’ how to use us’. Check it out. –Matt

 

Conference report on the involvement of the private security sector in humanitarian assistance operations i…

Sunday, December 18, 2011

Legal News: Congress Legalizes Cyber War

Filed under: Legal News,Letter Of Marque,Technology — Tags: , , , , , , — Matt @ 10:42 PM

In language discussing the bill, conferees say that because there is no historical precedent for what constitutes traditional military activities in cyberspace, “it is necessary to affirm that such operations may be conducted pursuant to the same policy, principles and legal regimes that pertain to kinetic capabilities.”

This is big news, and historical. The rules and laws of kinetic war now apply to Cyber War, and this brings up all sorts of ideas. For example, will we see more Cyber Lance type activities?  Maybe a US special forces team combined with civilian hackers to locate and kill/capture enemy hackers or whomever?  Who knows, and who knows how these new rules will apply?

Perhaps we will see the same issues that have popped up for today’s modern wars. Especially with the hybrid of private and public forces in conflict. I say this, because the US does not have the monopoly on ‘hacking force’. If they want the best, they can try to develop that capability internally, but inevitably they will have to reach out to private companies or individuals that are experts in these fields and pay them to do it.

Here is one quote below that really perked me up. Check it out:

Since the military cannot afford to pay enough to recruit qualified software and Internet engineers for this sort of work, it has turned to commercial firms. There are already some out there, companies that are technically network security operations, but will also carry out offensive missions (often of questionable legality, but that has always been an aspect of the corporate security business.)
Some of these firms have quietly withdrawn from the Internet security business, gone dark, and apparently turned their efforts to the more lucrative task of creating Cyber War weapons for the Pentagon. It may have been one of these firms that created, or helped create, the Stuxnet worm.

I read this and thought, why not just fire up the Letter of Marque and Reprisal and give these firms the legal authority and protections necessary to take part in offensive operations?  The LoM is sitting right there in the War Powers clause in the US Constitution, and it just seems to me that we are missing the boat when it comes to doing this stuff. We could be legally authorizing the companies to steal funds and intellectual property from all sorts of enemies out there, and label these companies cyber privateers. (which if the military helped at all, would those commanders or the US be entitled to a cut? lol)

My other thought about all of this is when will we see a Cyber Weapon used in such a way as to actually kill like a real weapon?  And with this public/private partnership we will have, we could potentially see IT Security companies build these weapons, and possibly even launch it. Just imagine if Stuxnet actually caused deaths in some weapons plant or nuclear facility? That would definitely put the ‘War’ in Cyber War. Very interesting….-Matt 

 

America Legalizes Cyber War
December 18, 2011
The U.S. Congress approved a new law on December 14th that allows the Department of Defense to conduct offensive Cyber War operations in response to Cyber War attacks on the United States. That is, the U.S. military is now authorized to make war via the Internet. The new law stipulates that all the rules that apply to conventional war, also apply to Cyber War. This includes the international law of armed conflict (meant to prevent war crimes and horrid behavior in general) and the U.S. War Powers Resolution (which requires a U.S. president to get permission from Congress within 90 days of entering into a war).
The U.S. Department of Defense has long advocated going on the offensive against criminal gangs and foreign governments that seek (and often succeed) to penetrate U.S. government and military Internet security, and steal information, or sabotage operations. Over the past year, and without much fanfare, the Department of Defense has been making preparations to do just that.

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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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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.
—————————————————————-
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

Tuesday, September 20, 2011

Maritime Security: Marine Insurers Backing Armed Guards As Piracy Threat Grows

Filed under: Letter Of Marque,Maritime Security — Tags: , , , , , , , , — Matt @ 3:29 PM

Frédéric Gallois, the deputy general manager at Gallice Security, a specialised security firm, said that keeping a team of four armed agents on board a vessel can cost between $4,000 and $8,000 a day.
Paul Tourret, the director of Institute Supérieur d’Économie Maritime, ISEMAR, a research institute that specialises in sea-based economic activities, estimated that the extra costs to a ship due to the risk of piracy can reach up to $50,000 a day.- Link to quote here.

That is an interesting quote up top, and I am always on the look out for cost estimates on transits. ISEMAR specializes in sea-based economics, so I tend to perk up when think tanks like this put out figures. Although on their website, I was not able to find any documents about armed security costs.  Perhaps some of my french readers could help me out here?

But the real story here is the one below.  That insurers are now getting behind the idea that armed guards on boats is a heck of good idea, compared to their other options. Or compared to the future of West’s navies.

They mentioned below about the defense cuts of Western navies, and the reduction of force size over the coming years. This is a very important point to bring up when it comes to today’s anti-piracy efforts. Eventually today’s war planners and strategists will come to the realization that using large Destroyers to take out tiny little pirate boats is not exactly cost effective. Especially when those navies still continue to falter when it comes to protecting commerce.

Cook said private firms would play an increasing role as navies face spending reviews, citing prospects of a 30 percent decline in the size of Western navies in the next 20 years. “They’re taking the policemen off the block,” he said.

The other statistic that was interesting was this one from ISEMAR. I would have thought that number would have been bigger? Especially if Peter Cook of SAMI said he has 58 member companies? I would be curious if SAMI or any other maritime groups agree with this number?

French maritime economics institute ISEMAR said there were about 1,000 private guards being employed by ships to counter Somali pirates.

Finally, with all of the increased use of armed security, the reduction in naval forces, and increase in pirate attacks and complexity, I have to think that the legal authority for how armed security is used will change. I have argued in the past that defense industries do not profit from the end of their venture. That they profit if the client they protect, continues to be attacked and threatened. But with offense industry, a different market force is set up to where companies profit from the ‘destruction of an enemy’ that threatens a client. That an offense industry work’s itself out of a job.

When countries really think about it, and try to understand what the economics are with how the pirates operate, and how private force ‘could’ operate to counter it, perhaps there might be some pragmatic choices made on the legal front? The question is, how do you reduce the numbers of pirates and attacks, and how can private industry be used to accomplish such a thing?

Specifically, I suggest to bring back the Letter of Marque and Reprisal, and create an offense industry to ‘expulsis piratis, restituta commercia’. It is the legal ‘sledge hammer’ in the tool box of states, and it is just sitting there getting rusty.  As piracy becomes better funded, more violent, more organized, and more rampant, eventually states will have to re-evaluate what is ‘inherently practical’; and change their view on what is ‘inherently governmental’ in order to stop this. –Matt

Marine Insurers Backing Armed Guards as Piracy Threat Grows
By Gus Trompiz
September 20, 2011
More ship insurers are backing the use of private armed guards on merchant vessels at sea to combat Somali piracy as attacks and the resulting costs are set to rise in coming weeks, industry officials said on Tuesday.
Pirate attacks on oil tankers and other ships are costing the world economy billions of dollars a year and navies have struggled to combat the menace, especially in the vast Indian Ocean. Seaborne gangs are set to ramp up attacks in the area after the monsoon season ends.
A famine crisis in Somalia could also draw more people into piracy, marine insurers said.
“Piracy is clogging the arteries of globalization,” said Emma Russell with underwriter Watkins, a member of the Lloyd’s of London insurance market. “No vessel with armed guards has yet been taken,” she added.
Industry delegates at the annual conference of the International Union of Maritime Insurance (IUMI) said there were more than 20,000 transits a year in the Gulf of Aden and the Indian Ocean.
Speakers at the conference said the hiring of private armed guards to accompany ships is increasingly seen as an effective deterrent against pirates and as a complement to overstretched navies, many of whom face budget cuts.
Ship owners and insurers have until recently been reluctant to accept the use of armed private contractors. They have hesitated partly due to legal liabilities and risks, including the problem of bringing weapons into some territorial waters and due to the fear of escalating violence.

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