Regulating PMC (catch all)

[jonSlack]

The Law Catches Up To Private Militaries, Embeds

Amidst all the add-ins, pork spending, and excitement of the budget process, it has now come out that a tiny clause was slipped into the Pentagon's fiscal year 2007 budget legislation. The one sentence section (number 552 of a total 3510 sections) states that "Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking `war' and inserting `declared war or a contingency operation'." The measure passed without much notice or any debate. And then, as they might sing on School House Rock, that bill became a law (P.L.109-364).

The addition of five little words to a massive US legal code that fills entire shelves at law libraries wouldn't normally matter for much. But with this change, contractors' 'get out of jail free' card may have been torn to shreds. Previously, contractors would only fall under the Uniform Code of Military Justice, better known as the court martial system, if Congress declared war. This is something that has not happened in over 65 years and out of sorts with the most likely operations in the 21st century. The result is that whenever our military officers came across episodes of suspected contractor crimes in missions like Bosnia, Kosovo, Iraq, or Afghanistan, they had no tools to resolve them. As long as Congress had not formally declared war, civilians -- even those working for the US armed forces, carrying out military missions in a conflict zone -- fell outside their jurisdiction. The military's relationship with the contractor was, well, merely contractual. At most, the local officer in charge could request to the employing firm that the individual be demoted or fired. If he thought a felony occurred, the officer might be able to report them on to civilian authorities.

[sgmgrumpy]

Not a lawyer, but I would not be to quick to think this will be a blanket law and will have an effect on all contractors since UCMJ would apply to DoD contractors. Alot of PMC contractors work for State Dept or " other". Not sure but as everything else, I would be willing to bet that law will get chewed up by the corp lawyers.

Everyone hates them, but knows they are not getting anything done without them.

Just my 2 cents.

More info on this can be had here also:
http://ipoaonline.org/journal/index....=136&Itemid=30

[goesh]

During the Kosovo campaign, Halliburton was hauled before a Congressional hearing over price gouging. It seems Halliburton was really gouging on plywood. H. told the committee that if they didn't like it they could hire someone else to do the work:end of hearing. I simply call H and others "camp followers" but their connection to the people of Iraq is primarily economic which binds the people to them better and stronger than they are to military forces. Screw with the camp followers and they will simply move to a new location leaving a bunch of unemployed people in their wake who will have nobody to blame but the military for their loss of jobs. A purple finger or a paycheck? Which would you want? One 'Lifer' wanting to push some new rules could cause more problems than you can imagine.

[GS]

This is unworkable on so many levels, especially irt the press. I wouldnt expect this to last.

[Granite_State]

Via Colonel Patrick Lang's blog:

"Jim" sent me this little gem. The MSM misses most important things and this is one of them. Under this Department of Defense directive, Secretary of Defense Robert Gates takes action to assure the extension of the authority of US military law over all civilians serving with or for US military forces.

The direcives provides authority for officers and NCOs to arrest and detain persons seen conducting a crime and for military authorities to pursue investigations that may lead to trial by general court martial.

The directive requires DoD to inform the US Department of Justice (DoJ) that it is proceeding against particular civilians. This provision exists to allow DoJ to take charge of the case involving civilians if it wishes. If DoJ declines then the military is authorized to proceed under its own legal system.

This would appear to settle the issue of how to deal with private armies of the "Blackwater" type in criminal matters. Comment from you lawyers? pl

http://turcopolier.typepad.com/sic_s...xtends-to.html

[SethB]

The question is whether a conviction obtained would withstand appeal to the Supreme Court.

See Reid v. Covert 345 US 1.

I am not a lawyer or student of the law, so I would welcome them to criticize my work.

Something I wrote a few years ago:

Attempts to apply the Uniform Code of Military Justice to those that aren’t members of the Armed Forces have traditionally failed. In Reid v. Covert, 345 US 1 (1957) the Supreme Court ruled that “courts of law alone are given power to try civilians for their offenses against the United States.” In that case, a civilian dependent was tried in front of a jury of Air Force officers for the murder of her husband, a member of the Air Force, on an Air Force base in England. Article 2 (11) of the UCMJ was invoked when charges were brought. It reads as follows:
The following persons are subject to this code:

(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States....

The Court countered with a quotation from Article III Section II of the US Constitution:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

And the Fifth and Sixth Amendments, respectively:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

The Court continued on to use these passages to rule that the military has no right to try a civilian, and that doing so is a violation of the defendants Constitutional rights. Relevant to the discussion is this passage:

There have been a number of decisions in the lower federal courts which have upheld military trial of civilians performing services for the armed forces "in the field" during time of war. To the extent that these cases can be justified, insofar as they involved trial of persons who were not "members" of the armed forces, they must rest on the Government's "war powers." In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront.

It is apparent that this interpretation would allow the military to try private security contractors under some conditions, namely, if the country were at war. Whether the current conflict in Iraq meets the definition of a war is something that would have to be determined by a US Court of Appeals, in the event that a contractor is prosecuted under the UCMJ.

[sandbag]

Well, there are two items of interest that apply:

1) The Federal Acquisition Regulation does tell contractors up front about circumstances of applicability in clause 222.225-7040, Contractor Personnel U.S. Armed Forces, etc. This is spelled out in the contract, so there shouldn't be much of a surprise.

2) CENTCOM's lawyers also have the deployed contracting officers putting a notification in contracts warning contractors about the applicability of MEJA.

(NOTE: For legal advice in your state, please consult a lawyer. Sandbag is NOT a lawyer, but knows a thing or two about contract law).

[Anthony Hoh]

Does this mean I can finally tell morbidly obese contractors wearing ACU to meet 600-9 requirements? Or to take their headgear off in the chow hall? Or to blouse thier boots and roll their sleeves down? Man this could be the start of something good. The only problem I see, is that I will have to spend a lot of time making spot corrections.

[Ken White]

No Slack!!!

[MountainRunner]

I've never seen any grounding in reality in the discussion over applying UCMJ to contractors. My unanswered concerns:

• how does one adapt UCMJ punishments to civilians that are U.S. citizens? (see Seth's post) What if they are not U.S. citizens?
• how does one apply the rule of law to civilians through civilians when military lawyers have trouble assembling evidence from a battlefield (few cases will have the resources the Nissor Square incident 'enjoyed' and even then...)? Didn't Rep Price's bill enhancing MEJA to authorize the FBI to investigate crimes in theater pass?
• Are all commanders (and below) now aware which contracting officer 'owns' which contractor to fill his/her complaints? Few tracking of demerits has been done... (or merits to be fair)

Some other random thoughts:

As far as Fed Acq Regulations, FARs needs to be implemented fully and I'm not sure we've canceled or let expire all the contracts that bypassed FARs.

There's an implication in FARs that if you don't do the job correctly, you'll be fired and replaced by another vendor. How many times has that happened?

Have the contracts been been rewritten to make PMC produced reports gov't reports or are they still corporate property like Aegis's 200 pager compiled after the "Elvis Video"?

Do based commanders have any insight (or new authority for that matter) over contractors, or is it still informal and haphazard?

It will be interesting to see the first case play out.

[Tom Odom]

Does this mean I can finally tell morbidly obese contractors wearing ACU to meet 600-9 requirements? Or to take their headgear off in the chow hall? Or to blouse thier boots and roll their sleeves down? Man this could be the start of something good. The only problem I see, is that I will have to spend a lot of time making spot corrections.

Oh my young NCO...

short answer: No

longer answer: you can try but will only get frustrated

The sleeves is an infantry thing, BTW

Tom

[sandbag]

You'd likely die of exhaustion if you take it on yourself, but yeah, you can do that. I'd rather have you go to Fort Belvoir and start with most of the personnel assigned there, first.

Does this mean I can finally tell morbidly obese contractors wearing ACU to meet 600-9 requirements? Or to take their headgear off in the chow hall? Or to blouse thier boots and roll their sleeves down? Man this could be the start of something good. The only problem I see, is that I will have to spend a lot of time making spot corrections.

[Jedburgh]

DefenseLink, 6 Apr 08: Civilian Contractor Charged With Assault Under Military Law

.....Alaa “Alex” Mohammad Ali, an interpreter, is the first contractor to be charged under a 2006 amendment to the Uniform Code of Military Justice – Section 552 of the National Defense Authorization Act of Fiscal Year 2007, MNC-I officials said.

Ali, who holds Canadian and Iraqi citizenship, is accused of stabbing another contractor. Officials said he is presumed to be innocent of this offense until, and unless, he is proven guilty. He has been in confinement at Camp Victory, Iraq, since Feb. 29.....

[Polarbear]

Yesterday the Swiss Federal Departement of Foreign Affairs announced that nearly 60 firms have signed the International Code of Conduct for Providers of Private Security. The CoC is a follow-up document to the Montreux Document from 2008 which had been perceived positively by the international community.

The ICoC "is based on the assumption that companies must respect human rights independently from the condition of national state law."

"International law is only applicable to non-state actors in certain limited circumstances, whereas an International Code of Conduct overcomes these legal and theoretical ambiguities. If companies express their commitment to respect these standards, the International Code of Conduct can become the basic document to spell out rules for private security providers and offer practical advice on how to deal with them"

The press release can be found here: http://www.eda.admin.ch/eda/en/home/....html?id=36144

The CoC can be found here: http://www.news.admin.ch/NSBSubscrib...ents/21143.pdf

While the Montreux Document can be found here: http://www.eda.admin.ch/etc/medialib...Broschuere.pdf

Neutral Greetings PB

[HumanCOGRachel]

Yes, my good buddy Eoin Stewart started Obelisk International LLC. His company was one of the first signatories of ICoC. His whole idea is honorable protective security for a number of venues, including humanitarian missions and the protection of socio-historical archeology and such. Warriors with a Conscience is the whole idea.... http://www.obelisk-international.com

[120mm]

The ICoC "is based on the assumption that companies must respect human rights independently from the condition of national state law."

Which "human rights?"

So, if my concept of human rights include that the human right of self-defense and the absolute God given right to keep and bear arms, that means I can run guns, regardless of national or international law, right?

The concept of "human rights" has been overused so much as to be worthless in application.

[Polarbear]

So far 554 Private Security Companies have signed the Code of Conduct, most from UK and US:

http://lignesdedefense.blogs.ouest-f...ct-for-pr.html

A list of 43 new signatories is also published:

http://www.icoc-psp.org/uploads/Sign..._Companies.pdf

as well as the complete list with all signatories:

http://www.icoc-psp.org/uploads/Sign...RT_VERSION.pdf

[Polarbear]

Today Federal Councillor Simonetta Somaruga (Social Democrats) presented a draft law by which Switzerland hope to ban "mercenary acitivities" of security firms.
The law forsees a notification requirement for firms which want to do business outside Switzerland and the EU. The authorities then have the possibility to allow or decline the activity. In case of violation the confederation can sanction the companies.
The text of the law and the communiquee is only available in German, French and Italian. Therefore, I post the link of the translated news release (Google).

You find the news release here: http://translate.google.de/translate...msg-id%3D47532

The text of the bill: http://www.ejpd.admin.ch/content/dam...men/entw-d.pdf (German)

The dispatch: http://www.ejpd.admin.ch/content/dam...rmen/bot-d.pdf (German)

[bourbon]

So who is going guard the Pope now?

[bourbon]

Some background: Aegis Defence Services, the UK PMC, has its holding company based in Switzerland. Since they have grown to be a large company with operations in a number of countries - I would imagine this has raised issues with the matter of Swiss neutrality.


Some history: The Swiss banking industry developed as an outgrowth from the export of Swiss mercenaries during the 15th to 19th century.