Feral Jundi

Wednesday, March 10, 2010

Letter Of Marque: The Constitutional Law And Practice Of Privateering, By Assistant U.S. Attorney Theodore Cooperstein

Filed under: Legal News,Letter Of Marque,Publications — Tags: , , , , , , , , — Matt @ 11:42 PM

  So this is interesting.  Here is a guy that works for the US Attorneys Office, who is former special forces and a reserve Army Intel guy, that writes this fantastic paper on the subject of Letters of Marque and Reprisal.  Does anyone else find that to be cool, or am I the only constitutional law geek that likes this stuff? lol

   The thing about it folks, is that I like the LoM, and I think it is just one more tool that can be used in this long and costly war.  It gives congress a means to connect with private industry in a way that will be cost effective, and certainly effective if done properly.  The one caveat though, is that congress needs to understand the mechanisms at play with this concept, and they must have the tools on how to properly construct a LoM. It would take some modern day modifications to get it just right, but it is certainly not impossible, and all the pieces are there to put it together.

   Which leads me to my next point.  By far, Feral Jundi is the place with the most comprehensive collection and commentary about the subject of the Letter of Marque and Reprisal. I know, I search this stuff relentlessly, and have collected it all.  I invite the readership to explore all of this good stuff, and ‘build a snowmobile’ out of it. Hell, write congress and let them know about the LoM and your thoughts about it. Remind them about Article 1, Section 8 of the Constitution and let’s get the word out. –Matt

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Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering

Theodore M. Cooperstein, U.S. Attorneys Office (SDFL)

Abstract

The United States Constitution grants to the Congress the power, among others, to issue “Letters of Marque and Reprisal.” Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government’s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

Suggested Citation

Theodore M. Cooperstein, “Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering,” 40 J. Maritime L. & Comm. 221 (Apr. 2009)

Link to publication website here.

LinkedIn Page for Theodore M. Cooperstein here.

Download Pdf here.

Sunday, February 21, 2010

Law Enforcement: Officers Lose 243 Homeland Security Guns

Filed under: Government Work,Law Enforcement,Publications — Tags: , , , , — Matt @ 12:58 PM

   Interesting report, and I thought private industry was bad.  These guys are government and the report only covers two years! I wonder how many weapons were lost in all the other years not covered in the report? –Matt

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Report: Officers lose 243 Homeland Security guns

February 18, 2010

Washington (CNN) — Nearly 180 Department of Homeland Security weapons were lost — some falling into the hands of criminals — after officers left them in restrooms, vehicles and other public places, according to an inspector general report.

The officers, with Customs and Border Patrol and Immigration and Customs Enforcement, “did not always sufficiently safeguard their firearms and, as a result, lost a significant number of firearms” between fiscal year 2006 and fiscal year 2008, the report said.

In all, 243 firearms were lost in both agencies during that period, according to the January report from Inspector General Richard Skinner. Of those, 36 were lost because of circumstances beyond officers’ control — for instance, ICE lost a firearm during an assault on an officer. Another 28 were lost even though officers had stored them in lockboxes or safes.

But 74 percent, or 179 guns, were lost “because officers did not properly secure them,” the report said.

Following a review of the draft report in December, Homeland Security took steps to implement its recommendations and overhaul its property management policy, according to a response in the report. A department spokeswoman did not immediately return a call from CNN Thursday seeking comment.

(more…)

Wednesday, February 10, 2010

Publications: Report From GAO On Nuclear Private Security Forces

Filed under: Estate Security,Industry Talk,Publications — Tags: , , , , — Matt @ 12:28 AM

     Efforts to more uniformly manage protective forces have focused on either reforming the current contracting approach or creating a federal protective force (federalization). Either approach might provide for managing protective forces more uniformly and could result in effective security if well-managed. Although DOE rejected federalization as an option in 2009 because it believed that the transition would be costly and would yield little, if any, increase in security effectiveness, the department recognized that the current contracting approach could be improved by greater standardization and by addressing personnel system issues. 

*****

     So why is it that we federalize airport security, yet privatize nuclear security?  I think this GAO report pretty much answers that question as to what direction they think security should go for nuclear facilities.  The folks at DoE and GAO probably had visions of TSA style security as soon as someone brought up the federalization of nuclear facilities, and that probably shut down the idea right then and there. lol

   Any way, I thought they had some interesting conclusions in the report.  Harden up the forces and make them more like the military (training and such), provide one set of standards and pay for all the sites (no brainer there), and insure the contractors are getting taken care of for retirement stuff (so they have incentive to do well, and stay with the program). Sounds good, and I hope this is implemented. –Matt

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Nuclear Security: DOE Needs to Address Protective Forces’ Personnel System Issues

GAO-10-275 January 29, 2010

Summary

The September 11, 2001, terrorist attacks raised concerns about the security of Department of Energy’s (DOE) sites with weapons-grade nuclear material, known as Category I Special Nuclear Material (SNM). To better protect these sites against attacks, DOE has sought to transform its protective forces protecting SNM into a Tactical Response Force (TRF) with training and capabilities similar to the U.S. military. DOE also has considered whether the current system of separate contracts for protective forces at each site provides sufficiently uniform, high-quality performance across its sites. Section 3124 of PL 110-181, the fiscal year 2008 National Defense Authorization Act, directed GAO to review protective forces at DOE sites that possess Category I SNM. Among other things, GAO (1) analyzed information on the management and compensation of protective forces, (2) examined the implementation of TRF, and (3) assessed DOE’s two options to more uniformly manage DOE protective forces.

(more…)

Wednesday, January 27, 2010

Publications: Pseudo Operations And COIN: Lessons From Other Countries, By Dr. Lawrence E. Cline

Filed under: Al Qaeda,Cool Stuff,Publications — Tags: , , , , , , , — Matt @ 12:21 PM

   If you have the time, check out this excellent paper.  I loved it, because this is the kind of stuff that we need to be doing more of in this war. All it takes is one guy that we can use to deeply penetrate into Osama Bin Laden’s network or some drug cartel, and we could effectively dismantle those operations.

   Dr. Cline gave a big mention to the Selous Scouts in this treatment of the subject, and brought up numerous other groups that had conducted pseudo operations in their wars.

   Towards the end of the article, he builds a snowmobile out of all of this data from all of these other countries, and puts together a pretty good ‘lessons learned’ of how to do pseudo operations correctly:

1. Money counts.

2. The alternative to cooperation can be dire.

3. Coordination is critical.

4. Breaking guerrilla communications systems is a key tool.

5. Effectiveness of pseudo operations depends in large part on

the effectiveness of response forces.

6. The role of “turned” guerrillas is critical.

   The two big components of turning enemy combatants it seems, is money and leveraging the choice of harsh incarceration or execution. That, and treating the captives really well in the beginning and having a really well planned system of turning these folks. It is quite clear though, that pseudo operations can be effective, and they are not impossible to do. It ain’t easy either, because if it was, everyone would be doing it successfully.

   One of the things that is working against the US for pseudo operations, is that we detain terrorists with no chance of execution. There is nothing scary at all about our detention, despite what the media might have the public believe .  If anything, terrorists want to go to Gitmo, so they can conduct propaganda campaigns for their cause while in detention.  They love the idea that they can continue to live and wage jihad from a cell. The paradox though, is that they want to be martyred, so execution would be cool with them as well. So right there is one factor working against us for doing pseudo operations. Still, I think there are other incentives that we could use in order to turn these guys, and we should leave no stone unturned with a pseudo operation strategy.

   Finally, the one theme that repeated throughout the paper, is that pseudo forces should focus primarily on information collection.  When you involve them in more kinetic stuff, that tends to muck up everything.  So whatever turned guerrillas or terrorists you use, it would probably be best to use them just to collect information and have a very flexible and quick reaction force to work off of that information. And to figure out a means of not accidently killing good guys or screwing up the pseudo operator’s operation. Lot’s to think about, but I really think this is the kind of stuff we need to do more of.

   Now to put my industry hat on.  Could a PMC offer these type of services?  If a company was able to claim some kind of speciality in turning guerillas and terrorists, that is the kind of service that would really give states an advantage in their wars. Hell, I know non-states are already doing this kind of thing, and you see examples of it everywhere in this war. But if a company had a proprietary method for turning folks within the framework of international law, and within the laws of that host/contracting country, you could probably name your price. Especially if you were able to produce results. –Matt

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Pseudo Operations and Counterinsurgency: Lessons from Other Countries

June 2005

Authored by Dr. Lawrence E. Cline

SUMMARY

Pseudo operations, in which government forces and guerrilla defectors portray themselves as insurgent units, have been a very successful technique used in several counterinsurgency campaigns. Pseudo teams have provided critical human intelligence and other support to these operations.

These operations, although of considerable value, also have raised a number of concerns. Their use in offensive missions and psychological operations campaigns has, at times, been counterproductive. In general, their main value has been as human intelligence collectors, particularly for long-term background intelligence or for identifying guerrilla groups that then are assaulted by conventional forces. Care must be taken in running these operations both to avoid going too far in acting like guerrillas, and in resisting becoming involved in human rights abuses.

(more…)

Thursday, January 14, 2010

Publications: Is The Privatization Of Force Organic To Western Liberal Democracy?, By Matthew C. Armstrong

Filed under: Letter Of Marque,Publications — Tags: , , , , — Matt @ 12:23 PM

   Ok folks, this is cool.  Sometimes I stumble upon stuff that really gets the juices flowing, and this is one of those deals.  Matt has written a very interesting paper that basically talks about using the Letter of Marque as a mechanism to control and manage PMC’s.  That with our current system, there is not an efficient means of putting checks and balances on what PMC’s do in the name of the country, and that a direct link with congress, via the LoM, would be far more efficient. It would help to alleviate many of the problems that we are bumping up against now.

   This was written back in 2007, but I still think the ideas are spot on, and something to rally around. I also have Matt’s permission to post this. Be sure to check out Matt’s excellent blog called Mountain Runner.  It is a fascinating look at strategic communications with tons of conversations about power and influence.

   By the way, I have also started a Letter of Marque category, just to add another means of easily finding information about the concept. You can also use the Feral Jundi search box, or hit one of the tags. The search box would be the best to retrieve other past discussions about the LoM. –Matt

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Is The Privatization Of Force Organic To Western Liberal Democracy?

By Matthew C. Armstrong

Abstract:

     Popular wisdom maintains that the State holds a monopoly on the use of force and that private military forces are usurpers of this monopoly. Popular wisdom also suggests the use of private military forces is antithetical to the idea of liberal democracy. A review of history shows neither of these are true. By bringing history back into the discussion it is clear the use of private military forces results from decisions based on political economy independent of liberal democratic theories.

     This paper reviews the reality of private military forces and suggests the marginalization and disfavor of mercenaries on land and sea was the result of a political economy and not liberal democratic theories. Reaching back four millennia before Westphalia gives witness to much the same. Sealing off the present from the past leads to false assumptions of the factors that led to the marginalization, but not disappearance, of private force in the nineteenth century. This bracketing of historic events and processes blinds us and prevents seeing and understanding engines of change. Investigating history and it is apparent the history of mercenaries on land and sea begins with the history of war and was subject to changing infrastructural power of the state. The evolution and introduction of liberal democratic principles had little impact on the wholesale removal of mercenaries from the battlefield.

     The return of mercenaries today is marked by systemic changes similar to those of the nineteenth century that pushed private military forces out of mainstream use. However, the return is not complete as the institutional and theoritical structures of before have not been adopted, especially in the central example of the paper, the United States. Whereas the US Congress explicitly authorized and licensed private military force in the past it has implicitly done so now. Before, it explicitly controlled the contracts and monitoring. Today, it does nothing. Through public law and investigative powers, Congress has the power restrict the use of PMCs. These powers were exercised before in the interest of the state to protect the national execution of US foreign policy. The failure to act today is an abrogation of the responsibility intended through words and deeds of the Founding Fathers in striking parallel to the culpability at the root of Machiavelli’s misdirected warning. As war is a continuation of politics and military force is central to this, it is understandable private military companies are an increasingly important solution tool in the toolbox of US foreign policy in an era of accountability. However, unlike the past, oversight is absent and the agent may represent the principal in distasteful ways without repercussion or acknowledgement.

     The return to mercenaries has not been complete in that the rules governing their use by the employer have not been resurrected. This is not a failure of democracy, liberal or not, but a failure of the hiring client. In fact, in many ways private military companies today have re-democraticized war by allowing almost anyone to participate as they did in the past. It might also be said that instead of outsourcing, we have temporarily “in-sourced” war for the past one hundred and fifty years. Perhaps with that in mind, we can get beyond the hyperbole and discuss privatization in terms of real impact while acknowledging that many of the faults today are rooted in the use and not existence of private forces.

View paper here.

Link to Mountain Runner blog here.

From the author:

“Go ahead and post the paper, but please include the caveat that the author understands it is still a draft, at least in presentation. The arguments are sound but there are likely errors in grammar and punctuation. I do not have any updates nor do I plan to make any.”

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