Matters Blackwater (Merged thread)

[jmm99]

JTF
Final point: it is just too much fun to tease you lawyers.

KW
I can agree with that...

we all can gum ourselves to death. (please knock out teeth in little icon)

Since John has now accepted Judicial Review, I can throw in my two cents worth about the remedies available to the other two branches.

Brief Opinion piece:

I believe that each of the three constitutional branches has the right and duty to determine independently the constitutional issues that are within its realm.

In the case of the Executive, the President has the duty to execute the laws, but that duty does not extend to executing laws which the President determines to be unconstitutional (e.g., Andy Jackson & Abe Lincoln). Besides not executing the mandate of the Supreme Court (which has no independent enforcement powers except over members of its Bar), the President also can indirectly affect the Court by judicial appointments.

In the case of Congress, it can act to limit or change the jurisdiction of the Federal Courts in many ways - although, there are practical and constitutional limits on that. Its ultimate sanction is simply to defund the Supreme Court, or any other Federal court.

These potential constitutional collisions have usually been defused by application of comity and reciprocity. The People tend to react when any one of the branches moves too far outside the norm.

[Ken White]

we all can gum ourselves to death. (please knock out teeth in little icon)

...The People tend to react when any one of the branches moves too far outside the norm.

and dat...

[John T. Fishel]

Did you forget that Congress can impeach judges/justices?

[Stan]

Did you forget that Congress can impeach judges/justices?

This is specifically the part that has always bothered me. Not that my meager existence as an Army NCO was boring, but that changing administrations often translated into new gun laws, higher (purportedly lower) tax laws and (ahem) refined legislative maneuvers (catchy French word for a strategic or tactical movement know as weaslin').

I give up

[jmm99]

from JTF
Did you forget that Congress can impeach judges/justices?

I did, indeed - and I won't blame it on age.

That remedy, as a practical remedy against what are perceived as bad decisions by SCOTUS justices, seems to have been placed on the shelf when Samuel Chase was acquitted in 1805.

A brief summary of the arguments is here (one of 500K Google links).

The Chase Impeachment

The issue of the scope of impeachable offenses was early joined as a consequence of the Jefferson Administration’s efforts to rid itself of some of the Federalist judges who were propagandizing the country through grand jury charges and other means. The theory of extreme latitude was enunciated by Senator Giles of Virginia during the impeachment trial of Justice Chase. “The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate.... A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.”788 Chase’s counsel responded that to be impeachable, conduct must constitute an indictable offense.789 The issue was left unresolved, Chase’s acquittal owing more to the political divisions in the Senate than to the merits of the arguments.790

788 1 J. Q. ADAMS, MEMOIRS 322 (1874). See also 3 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES§§ 2356-2362 (1907).

789 3 HINDS’ PRECEDENTS at § 2361.

790 The full record is TRIAL OF SAMUEL CHASE, AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES (S. Smith & T. Lloyd eds., 1805). For analysis of the trial and acquittal, see Lillich, The Chase Impeachment, 4 AMER. J. LEGAL HIST. 49 (1960); and WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992). The proceedings against Presidents Tyler and Johnson and the investigation of Justice Douglas are also generally viewed as precedents that restrict the use of impeachment as a political weapon.

So, the question is still technically open.

PS: Bill Rehnquist was either very prophetic or lucky in becoming the modern expert on impeachments in 1992.

[Polarbear1605]

I am always surprised how the complexities of these discussions rattle around in my head keeping me wake at night (probably because I am a “keep it simple” person). I also feel strongly that the US Rules of Law do not apply to combat, especially when outside of the US borders. Let me make an argument here (as he pulls out my soap box) and this gets back to the Rules of Law vs the Laws of War. Under the Laws of War, people are either civilians or combatants. A civilian’s status changes to a combatant once they pick up a gun. The Blackwater folks, under the Laws of War, are combatants for this reason. Under US Law (Goldwater-Nichols), only one person in the region has Combat Command authority and they are (what we use to call) the CINC but now call the Combat Commander. It seems to me, that jurisdiction of combatants must fall under the authority of the Combat Commander (no matter who they work for in country). The Blackwater crew should therefore, be charge using the UCMJ for the violations of the Laws of War for killing civilians. Granted this argument has never been made but it seems to me that the defense lawyers should be disputing the charges on those grounds.

[John T. Fishel]

JMM, for lesser judicial lights than SCOTUS, the impeachment remedy has been used often enough to be well remembered. One of the more intriguing cases was that of Judge Alcee Hastings who after being immpeached and removed from office by the Congress was elected to that august body by the good people of FL where he is today, Rep. Alcee Hastings - D.

At the SCOTUS level, Justice Abe Fortas (and LBJ appointment) was being investigated for elevation to Chief (as I recall) when some strange dealings came to light and the investigation took a turn toward impeachment. Fortas resigned before anything came of it - sort of like Nixon...

Cheers

JohnT

[jmm99]

your set of points are nearly right on, taking them one by one.

1. Under the Laws of War, people are either civilians or combatants.

Agreed - FM27-10 and 1949 GCs.

2. A civilian’s status changes to a combatant once they pick up a gun.

Agreed - same citations

3. The Blackwater folks, under the Laws of War, are combatants for this reason.

Agreed - same citations

4. Under US Law (Goldwater-Nichols), only one person in the region has Combat Command authority and they are (what we use to call) the CINC but now call the Combat Commander.

Agreed - but please note that is combatant command (COCOM). When we reach your next point, we have to deal with operational control (OPCON) and administrative control (ADCON). All of that has no particular legal impact where everyone is military and subject to the UCMJ.

5. It seems to me, that jurisdiction of combatants must fall under the authority of the Combat Commander (no matter who they work for in country).

If we had in-country Unity of Command, your logic would be true. We do not.

Let's take Marines serving as security at a diplomatic mission. All corrections cheerfully accepted, but my understanding is that they normally (1) are not COCOM under the regional combatant commander; (2) are OPCON under the diplomatic chief of mission; and (3) ADCON is retained by USMC. Since they are under the UCMJ, jurisdiction is clear - which is why I like Marine guards.

In the case of Blackwater guards, they cannot be COCOM under the regional combatant commander - they are civilians. I am not familiar enough with their contracts and ROEs, but OPCON and ADCON have to be in DoS and/or Blackwater.

Congress, in facing the contractor issue, ended up going two ways for DoD contractors and their employees: (1) Title 18 (MEJA) jurisdiction in the Federal courts; and (2) UCMJ jurisdiction (as to which, some constitutional questions remain unsettled - and so, perhaps, a bridge too far).

As to contractors and their employees of non-DoD departments and agencies, UCMJ jurisdiction over civilians (even if combatants) seemed about two bridges too far. Congress could have set up an independent court system to try civilians who are combatants; just as it set up the MCA system for the Gitmo detainees (also civilians who are combatants). It did not.

Instead, it extended Title 18 (MEJA) to contractors and their employees "supporting" the DoD - in effect, supporting the regional combatant commander. While Congress could have extended Title 18 (MEJA) to all contractors and their employees, regardless of department and agency hire, it did not do so.

So, Title 18 (MEJA) has a loophole for all non-DoD contractors and their employees who are not supporting the DoD. Since DoD has taken the position that Blackwater security folks are not supporting the DoD, the DoJ has some explaining to do about why the judge should find them "supporting".

I have no problem with your logic - as an argument to Congress that it should amend the statutes. As a legal argument, it will fail in these cases under the current statutory set-up.

[jmm99]

Very much agreed that lower court judges have been impreached and convicted. In fact, several over the last 200 years were convicted on charges that amounted to incompetence in office and bad decisions.

My guess is that, since Congress can establish and abolish lower Federal courts, impeachment and conviction of wayward judges is less of a hill to climb - even though the constitutional tenure standard is the same for both SCOTUS justices and lower court judges.

[Polarbear1605]

I have no problem with your logic - as an argument to Congress that it should amend the statutes. As a legal argument, it will fail in these cases under the current statutory set-up.

JMM, I agree with everything you state. I guess the next question is why these types of arguments have not been made to date? We seem to have significant gaps in both the Laws of War and Rules of Law when it comes to the war on terrorism. In a lot of ways I thing the troops are the ones paying the price for those gaps. Seems like we have the Executive Branch trying to solve the issue with the Judical branch helping when necessary (Rasul vs Bush, Hamdi v sRumsfeld, etc.). The folks that should be solving this issue seem to be ignoring it. I once had a staff NCO comment about expecting things from Congress. " CONGRESS?!, Sir those folks can screw-up free beer!" If he got to read MEJA I am sure he would repeat that quote.

[Ken White]

Glad there are still some about.

Though, to be fair, it does look like the Congress is about to underwrite Free Beer. I'm placing no bets on whether it'll be screwed up or not...

[jmm99]

I guess the next question is why these types of arguments have not been made to date? We seem to have significant gaps in both the Laws of War and Rules of Law when it comes to the war on terrorism. In a lot of ways I thing the troops are the ones paying the price for those gaps.

and is not a legal question at its core; but rather a structural problem in lending assistence to an already-established HN government - or to one which we have established.

Your last sentence is totally on target; and has been true since Vietnam and Korea before it.

The problem is that there are two things going on at once:

1. A war (whatever its intensity; an "armed conflict" in GC terms) is on-going - and demands a military solution (whether hard, soft or in-between) with Unity of Command - realized to some extent in Korea, not in Vietnam. In that arena, the Laws of War are generally applicable - and do provide some guidance and structure.

2. A political contest is also on-going, where the ball is flipped back and forth; with factions in the HN political set-up; with one or more HN insurgent groups; with the US (with all its agencies and its own external and internal politics) having its own agenda(s); and also allies, non-violent adversaries and international organizations.

IMO: determining what Rule of Law should apply best in that mess is practically impossible on any consistent basis because there are too many conflicting "rules of law" and political interests.

I suppose one solution is the Roman model, where the top officers in each legion had legal, judicial and legislative experience, both domestic and foreign. Their military experience was only a part of their whole. As we know, the legion's military experience primarily rested in its centurions - culminating in the primus pilus. His boss, the legionary legate, whether in a Roman province or in an assisted HN, had both COCOM and LEGCOM (made that acronym up) in his legion's area of responsibility. Thus, there was Unity of Command in both the military and legal (political) arenas.

IMO: The present-day US is not about to adopt the Roman model. The present-day structural problem is beyond the capabilities of those who are constitutionally tasked to solve it. Therefore, the solutions (except in simpler cases) will be kludges - probably with blowback in some areas.

Perhaps, when in Rome do as the Romans did; otherwise, stay out of Rome.

[John T. Fishel]

one of my pet peeves.

It seems to me that there is no reason why we can't achieve unity of command over USG activities in a COIN - or other conflict - environment. We do it regularly in nearly every American Embassy in the world where the Ambassador is in charge of ALL USG activities (with the exception of major ongoing military opns). We have also achieved it in a military operations environment - most recently (I think) in Operations Desert Storm prior to the arrival of Amb Ghnem in Kuwait and in Southern Iraq during the brief period of occupation and in Operation Provide Comfort in Northern Iraq where LTG Jay Garner commanded all USG elements - the Ambassador to Turkey suported Garner.

But there seems to be an incredible hesitancy on the part of USG political leaders to do the obvious and designate someone as being in charge. In Iraq, is it Amb Crocker of GEN Odierno? During the CPA was it Bremer or Sanchez or someone else, although they all reprted to SECDEF Rumsfeld? How hard iwould it be for the President (or the SECDEF in CPA like case) to point his finger and say, "You are in charge." And point it to the other guy and say, "You work for him."? Not hard for me to imagine but it seems to be impossible for the elected and appointed civilian leadership of the USG.

Cheers

JohnT

[jmm99]

Assuming the first base problem could be solved (I noticed in another thread that Ken, in mentioning this thread, thought not likely), we still would have the rest of the bases to cover. As to those, I don't see the military as the problem in the choice of law (conflicts of law) arena. E.g., MAGTF has worked out how it would (should) work with civilian agencies.

I see the biggest problem in co-ordinating the various agencies, which operate under their own individual rules of law.

Generalized example from a matter about a decade ago. Agency A (my client) had the end goal of releasing funds to complete a project. Agency A had to meet the requirements of Agencies B and C for release of the funds. Agency B had one set of requirements (which were updated to accord with what would be considered generally accepted practices ca. 2000).

Agency C was another story. Its requirements were ca. 1980 or earlier - "lessons learned" was not in its vocabulary. As its lead person told me, all of us here are well aware of what should be (Agency B's ca. 2000 rules); but we have to go by our rules - no exceptions.

Fortunately, Agency B was willing to bend a little. So, Agency C was satisfied and the project went forward. Now, multiply this ten-fold; and filling the bases becomes very complex - impossible if no one can or will bend.

[Pattonmat89]

What on God's green Earth does "Xe" mean? I'm sure it's just something that I don't get. Could someone please enlighten me?

[CR6]

Apparently nothing.

Tyrrell said there is no meaning to the new name, which is pronounced "zee." "It was just a choice of a name," she said. "We thought of it internally."

[Cavguy]

It means our old name was bad for business, so we had to make up a new one not associated with thuggery downrange.

[MikeF]

It reminded me of the singer formerly known as Prince.

[Ken White]

In Viet Namese, xế means: slant or decline

[CR6]

It means our old name was bad for business, so we had to make up a new one not associated with thuggery downrange.

bingo.

It reminded me of the singer formerly known as Prince.

Now news coverage will refer to the "PMC firm formerly known as Blackwater".