One of the most contentious points regarding the private security industry is that of accountability. No one point is more debated and discussed.
For the purposes of today's post, we will not consider international accountability. Today, we will consider the Military Extraterritorial Jurisdiction Act (2004) (MEJA) and the Uniform Code of Military Justice (UCMJ). For most professionals in the private security industry, the UCMJ is nothing new; as former military members, it is the Code by which they lived by for the term of their enlistments and commissions. But MEJA may be something new for most.
Senator Lindsey Graham (R-SC) recently had inserted into the UCMJ (Art. 2) five words that would see the Code applied to contractors not only in time of war, but also in "contingency operations". With this, of course, now comes the legal debate over just what that means, when it means it, how it means it, and to whom it means it. Whew...
Some military legal scholars believe that the UCMJ has always applied to contractors and even third-country nationals when you consider the black-letter of the law. In fact, the debate in military legal circles is not UCMJ vs. MEJA, but how they co-exist to provide an over-arching accountability system. However, the Pentagon has yet to create and publish implementing instructions for use of the UCMJ for contractors.
Since I am not a lawyer (but I did stay in a Holiday Inn last night) I will proffer some basic questions that I think most will ask (in no specific order):
1. What is a "contingency operation" and what does it mean to "accompany the force"?
2. What articles of the UCMJ would actually apply to contractors?
3. Can contractors be given Non-judicial punishment (NJP)? If so, how will money be taken from them, how will extra duties be assigned (since they should be assigned toward correcting the perceived deficiency). AND, will NJP authority be delegated to the CEOs of contracted companies?
4. What if an "offense" conflicts with the terms and conditions of a contract?
5. What if someone is working for a federal agency other than the DoD? Can they be charged under the UCMJ?
6. Is it even constitutional to try a civilian in a military court?
7. Is the JAG Corps ready for an increase in workload? Do they want it?
8. Is a "fair trial" still guaranteed for a civilian?
9. Are all other federal civilian employees covered by the UCMJ?
And finally....
10. Does applying the UCMJ to civilians also indemnify them from tort actions as it does active-duty servicemembers?
Like I said, I am not a lawyer, and these questions may be easily answered, but they are certainly worth asking...
The industry evolves in accountability just as it does in service. Everyone agrees that bad actors should be held accountable for bad actions.
Let us know what you think...
Friday, June 15, 2007
Tuesday, June 12, 2007
Cool Reports on National Security
For decades, the realm of national security and the discussions pertaining to it seemed to take place only inside the government; DEEP inside the government. But today, there are think tanks, committees, and all manner of groups providing analysis and informational reports for the public and government leaders alike. I have put together just a few here for your enjoyment. Obviously, there is room for the private sector in any of these initiatives.
National Security and the Threat of Climate Change
This report is the work of eleven former three-star and four-star generals and admirals brought together by the CNA Corporation. Complete with videos of these retired warriors, this report brings together two seemingly partisan issues into one argument for change.
Getting Down To Business
This report was delivered in January 2007 by the Business Executives for National Security and speaks to public-private collaboration in disaster response. For those of you who were involved in Hurricane Katrina relief efforts, this may be a good read for you.
Princeton Project on National Security
All ten-million pounds of brain power at the Woodrow Wilson School of Public and International Affairs and beyond was brought to bear for this report. It is the result of many conferences, many discussions with national security experts, and world in need of some strategy.
Making Liberia Safe
The RAND Corporation, the national think tank, put together an exceptional list of recommendations for Liberian security sector reform. The report is long but of significant value for those of you who participate in this global arena.
IPOA Report on Proposed Legislation in Congress
OK, this one is a quick report from the International Peace Operations Association on current and competing legislation in Congress aimed at the private sector in national and international security operations. This snapshot gives you a glance at what these lawmakers see as important to manage.
There are many other reports out there, but the ones above are a bit different in their approaches and might be of greater value than the same ol', same ol'...
Read and learn, then comment!
National Security and the Threat of Climate Change
This report is the work of eleven former three-star and four-star generals and admirals brought together by the CNA Corporation. Complete with videos of these retired warriors, this report brings together two seemingly partisan issues into one argument for change.
Getting Down To Business
This report was delivered in January 2007 by the Business Executives for National Security and speaks to public-private collaboration in disaster response. For those of you who were involved in Hurricane Katrina relief efforts, this may be a good read for you.
Princeton Project on National Security
All ten-million pounds of brain power at the Woodrow Wilson School of Public and International Affairs and beyond was brought to bear for this report. It is the result of many conferences, many discussions with national security experts, and world in need of some strategy.
Making Liberia Safe
The RAND Corporation, the national think tank, put together an exceptional list of recommendations for Liberian security sector reform. The report is long but of significant value for those of you who participate in this global arena.
IPOA Report on Proposed Legislation in Congress
OK, this one is a quick report from the International Peace Operations Association on current and competing legislation in Congress aimed at the private sector in national and international security operations. This snapshot gives you a glance at what these lawmakers see as important to manage.
There are many other reports out there, but the ones above are a bit different in their approaches and might be of greater value than the same ol', same ol'...
Read and learn, then comment!
Ambulance Chasers...
OK, so... I do not want this blog to be focused only on Blackwater; there is a lot more to this industry and far more to the discussion, but I found a recent event to be particularly interesting and perplexing.
As I am sure everyone knows, Blackwater is being sued by the families of the four brave souls who were brutally murdered in Fallujah. The judicial process is taking its course, as it should in a democracy. What I found interesting was a press release by the families' lawyers last week and in related stories such as in the Virginian Pilot and the News and Observer that asks for public donations to help these same lawyers continue with the case. Now, the News and Observer story quotes one of the attorneys, Dan Callahan as saying, "...we are just a small firm..." However, if you go to the law firm's website and look at the "News & Articles" section, they seem to be doing alright for themselves. One of their wins was for nearly $1 billion! In fact, most personal injury firms will take on consignment cases particularly if they are hopeful of developing a new practice (in this case, the private security industry) which seems to be the case here. So, the question is, if this has been a case on consignment, have these attorneys reached their limit of support? Did they assume that they would reach some sort of victory in the form of a settlement much sooner than now?
Callahan also claims that Blackwater is suing the families, but again, it seems that's not exactly true. As I read it, Blackwater filed a suit against the administrator of the estates (which it seems were set up solely for the lawsuit and contain no assets) for filing a suit in the first place which violates the contract signed by the four men killed in Fallujah.
There are numerous tales of personal injury attorneys' outrageous tactics to win cases. In this case, The Wall Street Journal Law Blog reported that Dan Callahan also wrote a letter to Speaker of the House Nancy Pelosi asking that the Congress investigate Blackwater. Well... that seems kinda shady, doesn't it? I mean, really, should attorneys in a civil action be able to usurp the judicial process and have Congress conduct discovery for them? From what I have read, there is no protection from Congressional inquiry, but it still seems a little too conspiratorial for me.
My point? Nothing is as it seems, and these lawyers are no different. If you feel like these attorneys have the families' best interests at heart, then by all means, give until it hurts. But if you feel that perhaps these guys are just ambulance chasers and are feeding off the barbaric tragedy these families have suffered, send them a penny each and let them know that they are no better than the companies they sue.
More on the industry tomorrow...
As I am sure everyone knows, Blackwater is being sued by the families of the four brave souls who were brutally murdered in Fallujah. The judicial process is taking its course, as it should in a democracy. What I found interesting was a press release by the families' lawyers last week and in related stories such as in the Virginian Pilot and the News and Observer that asks for public donations to help these same lawyers continue with the case. Now, the News and Observer story quotes one of the attorneys, Dan Callahan as saying, "...we are just a small firm..." However, if you go to the law firm's website and look at the "News & Articles" section, they seem to be doing alright for themselves. One of their wins was for nearly $1 billion! In fact, most personal injury firms will take on consignment cases particularly if they are hopeful of developing a new practice (in this case, the private security industry) which seems to be the case here. So, the question is, if this has been a case on consignment, have these attorneys reached their limit of support? Did they assume that they would reach some sort of victory in the form of a settlement much sooner than now?
Callahan also claims that Blackwater is suing the families, but again, it seems that's not exactly true. As I read it, Blackwater filed a suit against the administrator of the estates (which it seems were set up solely for the lawsuit and contain no assets) for filing a suit in the first place which violates the contract signed by the four men killed in Fallujah.
There are numerous tales of personal injury attorneys' outrageous tactics to win cases. In this case, The Wall Street Journal Law Blog reported that Dan Callahan also wrote a letter to Speaker of the House Nancy Pelosi asking that the Congress investigate Blackwater. Well... that seems kinda shady, doesn't it? I mean, really, should attorneys in a civil action be able to usurp the judicial process and have Congress conduct discovery for them? From what I have read, there is no protection from Congressional inquiry, but it still seems a little too conspiratorial for me.
My point? Nothing is as it seems, and these lawyers are no different. If you feel like these attorneys have the families' best interests at heart, then by all means, give until it hurts. But if you feel that perhaps these guys are just ambulance chasers and are feeding off the barbaric tragedy these families have suffered, send them a penny each and let them know that they are no better than the companies they sue.
More on the industry tomorrow...
Monday, June 11, 2007
In The Beginning...
And so it goes... This will be my first foray into blogging. I undertake this new effort with the intent to raise the level of debate about the private sector's role in national and international security.
I will both offer my own commentary and most certainly comment on the sensationalism pandered by others surrounding the topic and will expect to hear from all sides.
This is not a listserv, nor is it a forum for people who've done no research, have no experience or simply want to pontificate or sensationalize. All will be treated with respect as long as all offer respect. I will continue to develop this blog with other resources to stimulate real debate and discussion as I come across them.
To start the ball rolling, I submit an unpublished op-ed. Let's see where it leads us in the debate.
Greenwald and Scahill Are The True War Profiteers
A few weeks ago, the House Sub-Committee on Defense Appropriations held hearings on, “Contracting Out”; a topic that deserves real discussion, but this hearing fell far short of that. In yet another display of “gotcha politics’, the sub-committee found wisdom in inviting to testify two socialist activist sensationalists; both closely working with trial attorneys in a civil action against Blackwater, and both true war profiteers.
Robert Greenwald, who freely admits his radical, polemical documentary, “Iraq for Sale” was purposely subjective and unbalanced (it intentionally tried to tie Blackwater to Abu Ghraib) to affect the mid-term elections and Jeremy Scahill, author of, “Blackwater: The Rise of the World’s Most Powerful Mercenary Army”, a cobbling of mostly already-written, politically-driven stories weaved into an epic tale, were called to testify as defense appropriation experts. Neither is an expert in federal contracting, neither has served in the armed forces, and only one has visited Iraq (years ago). As Congress continues to hold these necessary hearings, one hopes those invited to testify are actually qualified to do so. In this case, the American people weren’t offered an option for balance; they simply were presented with two polemicists who were pawned off as experts.
The American capacity to respond to humanitarian and security challenges worldwide has always depended on the private sector’s partnership for its responsiveness, cost-effectiveness, and quality. Since the American Revolution when George Washington wrote IOUs for supplies to sutlers and merchants to Vietnam where over 80,000 professional contractors served the country, the private sector has played a significant role in supporting U. S. national security and foreign policies. However, the challenge has always been when and where to integrate expertise (inaccurately referred to as “outsourcing”) into government operations.
Accountability and cost are two fundamental issues that warrant Congress’ focus.
Scahill and Greenwald’s specious claim that private contractors were granted total immunity is at the heart of their own commercial profit agendas. Scahill decried that Ambassador Bremer gave full immunity to private contractors through CPA Order 17. That’s wholly incorrect. CPA Order 17 states that, “Contractors shall be immune from the Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto." The order only offers the same protection to private contractors that active-duty servicemembers have for actions undertaken in the same dynamic environment in fulfillment of their duties to our country. The entire industry supports improved accountability, but willful hyperbole serves nobody’s interests. Scahill pointed out that there have been 64 courts-martial of active-duty servicemembers under the Uniform Code of Military Justice (UCMJ). There are roughly 140,000 servicemembers in Iraq. There are only about 4,000 armed American contractors. Using the same ratio, roughly two contractors could have been court-martialed, and that’s assuming the training, maturity, and experience levels were equal (an incorrect assumption) and that a crime was committed. Most feel the UCMJ applies only to Americans and excludes third-country nationals (TCNs) and host-country nationals (HCNs) who are required by the terms of some contracts, and who make up the bulk of private security professionals in Iraq, but some military legal scholars feel that Article 2 already applies, even absent the Graham Clause. Applying the UCMJ to American civilians will also be met with constitutional challenges that will see private security companies and civil and human rights organizations uniting in objection. Modifications to the Military Extraterritorial Jurisdiction Act (2004) are being considered by Rep. David Price (D-NC) and others that offer a better solution because MEJA extends federal jurisdiction to American civilians, TCNs and HCNs serving U. S. contracts suspected of felonies where they could be tried and acquitted or punished as any other alleged felon in the United States. Congressman Henry Waxman, Senator Barack Obama, and Congresswoman Jan Schakowsky are also offering legislation.
The cost of security was also addressed during the hearing. The claim that security professionals at Blackwater were earning $1000 per day is false. Scahill, who will speak in Chicago at, “Socialism 2007” is fond of using inflated and annualized numbers and loosely connecting remote possibilities to create a misleading visual for his readers. The cost of security in Iraq is erroneously portrayed as a function of premium charges by the industry when it is really driven by the demand for services. An unexpected outcome occurred after the fall of Baghdad. As we see still today, the environment is far more dangerous and requires more security than anticipated. That is a planning issue, not a pricing issue. Scahill and Greenwald use sensational terms like, “mercenary” (which he never defines) and “war profiteer” to help sell more books and DVDs (private security professionals serving the U. S. Government don’t fit any definition of mercenary – including the UN’s). But what they don’t tell you is that these men and women are retired or former military and law enforcement professionals, mostly working middle-class Americans, who want to continue to support their elected government. They have no guarantee of further work, they pay for their own healthcare, and they get no pensions. The cost to the government associated with them ends when their contracts end. They generally do not serve more than 90-180 days at time and therefore do not enjoy any tax breaks. Further, using the DoD’s own numbers, a side-by-side comparison of an average private security professional and a deployed E-7 Navy SEAL shows that take-home pay is nearly the same.
That didn’t make it into the hearing either.
The opportunity to invite a balanced panel that included industry was missed. American taxpayers deserve to know how their money is being spent, but they equally deserve issue-driven debate, not politically-driven grandiloquence. All they got a few weeks ago was one-sided, political activism from true war profiteers who make their money as parasites to family tragedy and by impugning the integrity of honorable, committed professionals in harm’s way. The dearth of informed experts on this particular panel deprived taxpayers of the discussion necessary to learn and make sound democratic choices.
“Striking a pose” in favor of partisan politics will continue to allow true war profiteers like Scahill and Greenwald to politicize and exploit others’ tragedy and selfless service to great financial gain.
Hopefully, Congress won’t allow that to happen again.
That ought to get us started!
I will both offer my own commentary and most certainly comment on the sensationalism pandered by others surrounding the topic and will expect to hear from all sides.
This is not a listserv, nor is it a forum for people who've done no research, have no experience or simply want to pontificate or sensationalize. All will be treated with respect as long as all offer respect. I will continue to develop this blog with other resources to stimulate real debate and discussion as I come across them.
To start the ball rolling, I submit an unpublished op-ed. Let's see where it leads us in the debate.
Greenwald and Scahill Are The True War Profiteers
A few weeks ago, the House Sub-Committee on Defense Appropriations held hearings on, “Contracting Out”; a topic that deserves real discussion, but this hearing fell far short of that. In yet another display of “gotcha politics’, the sub-committee found wisdom in inviting to testify two socialist activist sensationalists; both closely working with trial attorneys in a civil action against Blackwater, and both true war profiteers.
Robert Greenwald, who freely admits his radical, polemical documentary, “Iraq for Sale” was purposely subjective and unbalanced (it intentionally tried to tie Blackwater to Abu Ghraib) to affect the mid-term elections and Jeremy Scahill, author of, “Blackwater: The Rise of the World’s Most Powerful Mercenary Army”, a cobbling of mostly already-written, politically-driven stories weaved into an epic tale, were called to testify as defense appropriation experts. Neither is an expert in federal contracting, neither has served in the armed forces, and only one has visited Iraq (years ago). As Congress continues to hold these necessary hearings, one hopes those invited to testify are actually qualified to do so. In this case, the American people weren’t offered an option for balance; they simply were presented with two polemicists who were pawned off as experts.
The American capacity to respond to humanitarian and security challenges worldwide has always depended on the private sector’s partnership for its responsiveness, cost-effectiveness, and quality. Since the American Revolution when George Washington wrote IOUs for supplies to sutlers and merchants to Vietnam where over 80,000 professional contractors served the country, the private sector has played a significant role in supporting U. S. national security and foreign policies. However, the challenge has always been when and where to integrate expertise (inaccurately referred to as “outsourcing”) into government operations.
Accountability and cost are two fundamental issues that warrant Congress’ focus.
Scahill and Greenwald’s specious claim that private contractors were granted total immunity is at the heart of their own commercial profit agendas. Scahill decried that Ambassador Bremer gave full immunity to private contractors through CPA Order 17. That’s wholly incorrect. CPA Order 17 states that, “Contractors shall be immune from the Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto." The order only offers the same protection to private contractors that active-duty servicemembers have for actions undertaken in the same dynamic environment in fulfillment of their duties to our country. The entire industry supports improved accountability, but willful hyperbole serves nobody’s interests. Scahill pointed out that there have been 64 courts-martial of active-duty servicemembers under the Uniform Code of Military Justice (UCMJ). There are roughly 140,000 servicemembers in Iraq. There are only about 4,000 armed American contractors. Using the same ratio, roughly two contractors could have been court-martialed, and that’s assuming the training, maturity, and experience levels were equal (an incorrect assumption) and that a crime was committed. Most feel the UCMJ applies only to Americans and excludes third-country nationals (TCNs) and host-country nationals (HCNs) who are required by the terms of some contracts, and who make up the bulk of private security professionals in Iraq, but some military legal scholars feel that Article 2 already applies, even absent the Graham Clause. Applying the UCMJ to American civilians will also be met with constitutional challenges that will see private security companies and civil and human rights organizations uniting in objection. Modifications to the Military Extraterritorial Jurisdiction Act (2004) are being considered by Rep. David Price (D-NC) and others that offer a better solution because MEJA extends federal jurisdiction to American civilians, TCNs and HCNs serving U. S. contracts suspected of felonies where they could be tried and acquitted or punished as any other alleged felon in the United States. Congressman Henry Waxman, Senator Barack Obama, and Congresswoman Jan Schakowsky are also offering legislation.
The cost of security was also addressed during the hearing. The claim that security professionals at Blackwater were earning $1000 per day is false. Scahill, who will speak in Chicago at, “Socialism 2007” is fond of using inflated and annualized numbers and loosely connecting remote possibilities to create a misleading visual for his readers. The cost of security in Iraq is erroneously portrayed as a function of premium charges by the industry when it is really driven by the demand for services. An unexpected outcome occurred after the fall of Baghdad. As we see still today, the environment is far more dangerous and requires more security than anticipated. That is a planning issue, not a pricing issue. Scahill and Greenwald use sensational terms like, “mercenary” (which he never defines) and “war profiteer” to help sell more books and DVDs (private security professionals serving the U. S. Government don’t fit any definition of mercenary – including the UN’s). But what they don’t tell you is that these men and women are retired or former military and law enforcement professionals, mostly working middle-class Americans, who want to continue to support their elected government. They have no guarantee of further work, they pay for their own healthcare, and they get no pensions. The cost to the government associated with them ends when their contracts end. They generally do not serve more than 90-180 days at time and therefore do not enjoy any tax breaks. Further, using the DoD’s own numbers, a side-by-side comparison of an average private security professional and a deployed E-7 Navy SEAL shows that take-home pay is nearly the same.
That didn’t make it into the hearing either.
The opportunity to invite a balanced panel that included industry was missed. American taxpayers deserve to know how their money is being spent, but they equally deserve issue-driven debate, not politically-driven grandiloquence. All they got a few weeks ago was one-sided, political activism from true war profiteers who make their money as parasites to family tragedy and by impugning the integrity of honorable, committed professionals in harm’s way. The dearth of informed experts on this particular panel deprived taxpayers of the discussion necessary to learn and make sound democratic choices.
“Striking a pose” in favor of partisan politics will continue to allow true war profiteers like Scahill and Greenwald to politicize and exploit others’ tragedy and selfless service to great financial gain.
Hopefully, Congress won’t allow that to happen again.
That ought to get us started!
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