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Posts Tagged ‘law’

Drug War collateral damage

“These guys run loose in this country and do stupid stuff. There’s no authority over them…they shoot people, and someone else has to deal with the aftermath.”
-Brig. Gen. Karl Horst, 3rd Infantry, Baghdad, 2005.

The occupation of Iraq has been an unqualified success for at least one sector of the economy.  Private military firms (PMFs) handle a larger load of both supply and combat operations than ever before.  Thousands of private military contractors (PMCs) are running around the country, from former Special Forces guys making $1,000 a day to third-world nationals delivering cheesecakes protected by National Guardsmen.

In the last decade, the Pentagon has alone has entered into over 3,000 contracts with PMFs.  This does not include the operations of other agencies such as the CIA.  P.W. Singer, the expert’s expert on this topic, attributes the rise in PMF activity to three factors:  the end of the Cold War; transformations in warfare; and a general trend towards privatization of government tasks.   With the fall of the USSR, standing armies worldwide were downsized and demand arose for smaller, non-permanent military forces.  Simultaneously, the market was flooded with well-trained soldiers from the ranks of both the Red Army and the concurrently defunct apartheid South Africa.  Also, warfare in the developed world was becoming increasingly reliant on off-the-shelf commercial technology, much of which was operated by representatives of private firms.  Finally, PMFs benefited from the general neoliberal trend of devolving state responsibilities to the private sector – if Ohio can have private prisons, why not Baghdad?

There are over 100,000 PMCs in Iraq, not even counting subcontractors.  Approximately 20,000 have taken part in combat operations, representing more than 60 firms.  This made PMFs the second-largest participant in the Coalition of the Willing.  We’re talking about $100 billion worth of contracts.  The U.S. government has paid salaries for some 1,500 South Africans, most of who are former members of the South African Defense Forces (SADF), because apartheid means never having to say you’re sorry.

So what happens when, as Brig. Gen. Horst put it, they “do stupid stuff?”  How should the individuals and their employers be held accountable?  Neither national nor international law has proved capable of regulating the behavior of private contractors.  There are a number of toothless international treaties on mercenarism, and I’ll probably post an old paper on this some time when I’m too lazy to do new material.  For now, a summary of legal oversight mechanisms for PMFs and PMCs:

International law says much and does little.  The United Nations has passed a series of resolutions condemning “mercenarism,” but none of the major powers have ratified any enforcement mechanisms.  Without the creation of any standalone institutions, implementation of these guidelines is left to individual states.  David Shearer, former Senior Advisor to the U.N. Department of Humanitarian Affairs in Liberia and Rwanda, notes a “palpable international apathy” to implementing serious international regulations on PMFs and PMCs.  Even if individual PMCs commit crimes great enough to be liable under something like the International Criminal Court, the ICC’s jurisdiction does not cover their corporate employers – the ones whose CEOs are responsible for setting the often-reckless rules of engagement.  As weak as regulation of the PMC’s themselves has been, it has proved even more difficult to apply oversight to the modern, corporate-model PMF.  No international law actually governs the firms themselves.  At current, international law is useless.

-National law (state law) is occasionally effective.  This tends to work best on the supply side.  South Africa is not only a major source of personnel, but used to be home to Executive Outcomes (EO).  EO, once “[arguably] the most deadly and efficient army in sub-Saharan Africa,” went out of business immediately following the passage of the Regulation of Foreign Military Assistance Act (RFMAA).  The RFMAA  increased the government’s licensing and control power over PMFs, while enacting a blanket ban on “mercenary activities” as defined by “direct participation as a combatant…for private gain.”  PMFs providing non-combat services, up to and including training, intelligence, and operational support, are allowed to exist subject to Parliamentary authorization.  The government is working to expand their efforts, with subsequent prohibitions aimed at reducing the presence of former apartheid Special Forces running around in conflict zones.

Problem is, South Africans can still be PMCs; they just have to work for companies not based in South Africa.  This gets to the general jurisdictional problem underpinning all the legal loopholes.  What happens when a South African working for British company paid by the United States government kills a civilian in Iraq?

Unfortunately, there is no answer.  Even Americans working for American companies under American contracts have been exempt from legal repercussions.  “Small” crimes are nearly impossible to prosecute.  The Military Extraterritorial Jurisdiction Act (MEJA), passed in 2000, only applies for crimes that carry a sentence of over a year.  Michael Nardotti Jr., former Army judge advocate general, explains that simple assault only carries a six-month sentence.  “Suppose the behavior involves humiliating the detainee, or stripping him naked.  What crime would that constitute? You’d have to look at the whole list of federal offenses and find one that is punishable by more than one year.”   Worse, the MEJA only applies to Department of Defense employees.  Contractors from State, the CIA, or any other agencies are entirely exempt.

The simplest solution would be to fold PMCs into military law.  They weren’t through 2007, even as PMCs fought literally next to uniformed soldiers.  In 2007, Senator Lindsey Graham (R-SC) added five words in the 2007 defense appropriations bill which overnight subjected certain civilians to the Uniform Code of Military Justice (UCMJ).  The arrangement was sharply criticized by PMFs, as well as representatives of the American Civil Liberties Union who objected to the use of military law to govern civilians.  Thus far, it has had little impact on oversight.

Jurisdictional problems also remain prohibitive, particularly in cases against the PMFs.  Judges have thrown out several cases on jurisdictional grounds, including a $10 million verdict against Custer Battles.  When the families of Halliburton truck drivers sued for recklessly sending convoys into battle, a federal court ruled that the army, not Halliburton, was in charge.  As a result, trying the case would represent “an impermissible intrusion into powers expressly granted to the executive by the Constitution.”

In other words, PMFs got off because the army had jurisdiction; while PMCs also got off because the army did not have jurisdiction.  Somewhere, Joseph Heller is throwing up.

Hopefully, the Status of Forces Agreement will straighten some of this out.  It is still not clear how Iraqi demands for PMC accountability will work in reality.  PMCs could end up being tried in Iraqi courts.  If nothing else, the political pressure around this may push the U.S. to try its own people, especially if PMFs demand American juries for American citizens.  Until today, the only repercussions for PMCs who commit crimes have been reassignment or firings by their PMF bosses; hardly a terrible outcome for perpetrators of child prostitution rings among others.  Although the Pentagon found that “several of the alleged perpetrators” of detainee abuse at Abu Ghraib were private contractors, none have faced criminal charges.  (Though this may change yet.)  The President of the International Peace Operations Association (IPOA), the professional organization of PMFs, responded to the Abu Ghraib case with “What happens is the people are fired…that’s what you have to do in this environment.”  Or, what happens overseas stays there.

So given this context, a stunning recent development:  The Department of Justice (DoJ) is preparing to charge three to six Blackwater guards for the deaths of 17 civilians in Iraq in September 2007.  All the usual caveats apply:

-Can they be charged for crimes committed overseas?

-Since Blackwater works for State, not DoD, do the legal regulations apply to them?

-State reportedly gave them promises of immunity for statements following the shootings, and prosecutors may be barred from using this information.

-Blackwater itself is not a subject of the investigation.

And the best part:  They’re not being tried for murder.  Prosecutors lost the closest thing yet to a similar case, a failed first-degree manslaughter charge.  Proving murder in a war zone is understandably a bitch.  So the weird, weird alternative:

“Charges could be announced as early as Monday in the shooting, which left 17 civilians dead and strained U.S. relations with the fledgling Iraqi government. People familiar with the charges said they may include an aggressive Reagan-era anti-drug law cracking down on assault weapons…

…Though drugs were not involved in the Blackwater shooting, the Justice Department is pondering the use of a law, passed at the height of the nation’s crack epidemic, to prosecute the guards. The Anti-Drug Abuse Act of 1988 law calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, whether drug-related or not.”

The law office intern who dug that one up just won a job offer.  This should be somewhat easier to prove than a manslaughter charge.  This isn’t terribly encouraging from a structural perspective; it’s hardly a useful precedent, let alone a generalizable legal framework.  That said, more power to them for trying something.  Private contractors have enjoyed de facto immunity for years.  If it takes Reaganite drug law to get a leash on them, so be it.

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Webcasting tragedy

Plain awful, from The Guardian:

“Police in Florida are investigating the death of an American teenager after he appeared to take an overdose and die while broadcasting on video website Justin.tv.”

The 19-year-old left a message on another website in which he described his mental anguish and was encouraged to end his life by a number of other web users.”

Apparently, more than 180 people watched this kid OD and fall unconscious on his bed.  After he had stopped moving, someone called the cops.  Some reports claim that the viewers continued to taunt him.  The victim had previously described his feelings and the possibility of suicide on both justin.tv and another website, where users egged him on:

“You want to kill yourself?” said one. “Do it, do the world a favour and stop wasting our time with your mindless self-pity.”

This case is not unprecedented, nor is this a simple indictment of the internet.  Impersonal groups pressure jumpers.  It’s the “baiting crowd” phenomenon.  Research on the topic suggests that the following variables contribute to baiting: size of the crowd (larger is worse), the cover of nighttime, and physical distance.  These are all de-individuation factors, as members of the crowd abdicate their ethical obligations.

That said, the internet is a uniquely powerful medium for this sort of behavior.  Crowds of thousands can gather in seconds on message boards, populated by nameless individuals hiding behind user-tags.  It’s best summed by the now-famous New Yorker cartoon: “On the internet, no one knows you are a dog.”  The problem is not just the anonymity; it’s also the distance.  At least in person, crowds can physically see their targets.  The internet adds a level of disconnect.  Even if the victim is on a webcam, there’s an element of unreality to the situation – you can minimize the window and they’re gone.  This is worsened by the frequency of internet hoaxes.  A man on a ledge in front of you is awfully real; “DpressedDave7,” holding a bottle of nondescript pills on a Wichita webcam, might just be putting you on.

None of the nearly 200 people who witnessed this, including those who baited the victim, are legally culpable.  (One hopes that they’ll get their ethical rewards through sleepless lifetimes.)  But what of the justin.tv people?  While there’s no reason to believe they’ll face any legal sanction, the question of whether they should is a little more complex.  On one hand, the website was simply a location where the acts took place.  Mayor Fenty wouldn’t be responsible for a nasty Washington crowd talking someone into leaping onto L Street.  However, an internet message board is a controlled environment.  People apply for user names, submitting their email addresses (and sometimes more) to aquire them.  Websites are private domains with discretionary power over messaging – it’s usually called “Terms of Use.”  After hesitating on free speech grounds, Facebook recently pulled several neo-Nazi pages.

The purveyors of the website are not criminals because there is no underlying criminal act.  Groups baiting suicides is repulsive, but won’t send anyone to jail.  What I don’t know, because I am completely out of my depth on internet law, is this:  If message board participants had plotted and then carried out murder, would the message board hosts be culpable?  And if so, for what crime?

Internet law is a fresh and evolving field, with cases from horrific to laughable arising every day.  If there’s any law students with insight on this topic, any comments on the matter would be appreciated — both legal examples and subjective opinions welcome.

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Dan Rather and media bias

Way back when Bush’s approval rating was above freezing, CBS News’ Dan Rather got himself canned in a controversy over the President’s National Guard documents.  In case you somehow missed “Rathergate,” which also involved the firing of producer Mary Mapes, the Wikipedia summary is enough background for the more recent news.  Since being tossed out unceremoniously, Rather has filed a lawsuit against the network claiming that CBS’s investigation into his work was politically biased.  He has spent upwards of $2 million of his own on the case, and is carrying out much of the research himself.

Whether or not he ultimately wins, Rather is digging up gold.  Armed with subpoena power, the old newsman is discovering that the panel was indeed a sop to the political right.  The New York Times reports:

“Some of the documents unearthed by his investigation include notes taken at the time by Linda Mason, a vice president of CBS News. According to her notes, one potential panel member, Warren Rudman, a former Republican senator from New Hampshire, was deemed a less-than-ideal candidate over fears by some that he would not “mollify the right.”

Warren Rudman, last of the “Yankee Republicans,” was unacceptable.  With the right working the refs, CBS was pandering furiously for the approval of the ideologues.  Rather’s legal team recently dug up a stunning, horrible list of people who received consideration as panalists:  Rush Limbaugh, Ann Coulter, Matt Drudge, Pat Buchanan, and Roger Ailes.  Read those names again.  And yes, a major news network actually considered the head of Fox Agitprop as a potential judge of their own journalistic ethics.

CBS’s concern was not finding an accurate explanation of the case; the real goal was to alleviate right-wing criticism.  Former network President Andrew Heyward testified that he wanted a panel acceptable to conservatives:  “CBS News, fairly or unfairly, had a reputation for liberal bias,” and “the harshest scrutiny was obviously going to come from the right.”  With this in mind, the network “balanced” mainline journalist Louis Boccardi with well-known Republican and former Reagan Attorney General Dick Thornburgh.  (Center) + (Right) still = (Right), which is exactly what CBS was going for.

Here’s a summary of recent developments, and here’s a longer New York magazine feature on Rather’s crusade.  Good on Dan for taking this on.

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Some religious news

Today, Israel’s highest Rabbinical court handed down a crucial ruling effectively annulling the conversions of some 40,000 people.  The Rabbis argued that the Israeli government has been too liberal in approving conversions to Judaism.  The matter is now being referred to the Israeli Supreme Court.

The Rabbinical court’s decision will not retroactively impact the citizenship of these individuals.  However, the ruling will likely make it harder for these converts to find Rabbis willing to oversee Jewish rituals for them, whether marriages, funerals, or other events.  Israel’s conversion management process is the unique byproduct of a technically secular state in which citizenship is determined by religion.  All Jews are citizens; Rabbis determine who are Jews; and the secular state has hiring and firing power over those Rabbis.  Prime Minister Olmert recently sacked the 76-year old Haim Druckman, the previous head of the conversion authority, for authorizing too few conversions.

There is no simple solution for this.  So long as citizenship is determined by religion, the state will be subject to the whim of the Rabbis.  At the same time, the state picks the Rabbis.  This all occurs, of course, on the backdrop of the usual Jew versus Jew arguments.  Unless Israel rethinks its fundamental premise of religious-based citizenship, this is a perpetual problem.

(In other religious news, Muslim scholars are meeting with the Pope to discuss a “joint crisis management plan.”  It’s a nice idea, and I’m imagining a Mecca-Roma red phone.)

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Your Turkish judiciary update

Yesterday, 86 people went up on trial in Turkey in what the Telegraph called the country’s “most important political trial in a decade.”  The mass of defendants, including journalists and former generals, are charged with assassinations and bombings in an effort to overthrow the government.  The case focuses on a shadowy ultra-nationalist organization called Ergenekon, allegedly made up of police, military officials, and businessmen.  The first journalist to report on the network described Ergenekon as above the general staff, the MIT (national intelligence organization) and the prime minister.”  The ultra-nationalist gang is at the core of the 2,400-page indictment, which includes charges for killing a judge, priest, journalist and three Christian publishing house employees in an effort to destabilize the government.

It’s been a busy few years in the Turkish judiciary.  Last year, three teenagers with alleged ties to nationalist groups were charged with the murder of prominent Turkish-Armenian journalist Hrant Dink.  Dink was best known for his articles about the Turkish mass killings of Armenians in 1915, still a central issue in Turkish political culture.  In 2006, Nobel winning author Orhan Pamuk was tried under the controversial Article 301, “insulting Turkishness,” for raising the Armenian issue in an interview.  (The case was dropped.)

All of this brings us to the bigger question of Turkish political culture.  The country is currently governed by the Justice and Development Party (AKP,) which the Turkish Daily News helpfully summarizes as a “liberal party…with ‘Islamist roots,” a “pro-Western mainstream party with a ‘conservative’ social agenda but also a firm commitment to liberal market economy and European Union membership.”  AKP is currently an observer member of the European People’s Party, and while this is a rash oversimplification, it helps to think of the AKP as a Muslim version of a European-style Christian Democratic Party.  Critics of AKP, however, compare it to the now-banned Welfare Party, the last major Islamic-oriented political movement in the country.  AKP has already faced the courts repeatedly on allegations of promoting an Islamist agenda.  Despite this, the party remains popular and recently won elections by a large margin.  Groups like Erganekon, as well as any number of better-meaning secularists, still have doubts about AKP’s intentions.

The main opposition is the Republican People’s Party (CHP,) founded by national hero Mustafa Kemal Ataturk in 1923.  CHP is the heir to Kemalist secularism, and while it historically billed itself as social democratic has moved to embrace free-market positions in recent years.  CHP’s base is urban areas, the western part of the country, and Istanbul, and it has always been most popular with the educated classes and white-coller workers.  The party’s Kemalist perspective places it neatly in line with the military, traditionally the strongest defender of secularism in the country and author of the awesomely-named “post-modern coup” against the Welfare Party government in 1997.

Party politics take place under the dual clouds of the military and the “deep state,” a unique Turkish phenomenon.  Multiple former presidents have referred to the deep state, which consists of some combination of the military, the intelligence services, and the bureacuratic structure.  Political leftists claim that the deep state is hyper-nationalistic, corporatist, and anti-democratic, while supporters of parties like the AKP accuse this shadowy entity of promoting secularism through force.  This may sound a bit paranoid, but most Turks believe it exists in some form and its existence holds a regularized place in the political discourse.  President Erdogan claimed that the deep state has its roots as far back as the Ottoman Empire.

What makes all of this so fascinating is the way that this entire political dialogue seems to clash with the ways that left and right, democratic and authoritarian, secular and religious work elsewhere in the Middle East.  The AKP is an Islamic-oriented party, with huge constituencies among the poor and working-classes, including the legions of headscarf-wearing women in rural areas, while the CHP’s secularism is built around a coalition of well-educated urbanites in a way resembling a sort of Turkish laïcité. But despite all manner of allegations about a hidden sharia agenda, it is the AKP that has been the strongest supporter of European Union integration and shown the best commitment to democratic practices.  It’s also hard to find a modern regional parallel for CHP.  Despite its anti-democratic tendencies, CHP has also peacefully ceded power a number of times and hardly resembles the outright authoritarians of something like the Ba’ath Party family.  CHP also has historically decent relations with Israel (downright sunny for any ruling party in a Muslim country) including recognizing the state in 1949; while the radically nationalistic military has direct ties to the Jewish state.

The Ergenekon case arises from this unique atmosphere. Prosecutors are comparing the organization to the Italian Gladio network, an anti-communist organization that carried out assassinations and bombings through the 1970s.  Interestingly, many of the alleged crimes were not targeted at the government directly.  Attacks on the offices of the pro-military newspaper Cumhuriyet, as well as plans for”shock assasinations” of Greek, Jewish, and Armenian religious and business leaders, were intended to discredit the regime and move public opinion towards a stronger enforcement of secularism.

So here we have a country where the state’s chief prosecutor accuses the government of attempting to implement Sharia; while radical secularists themselves try to discredit the regime by assassinating non-Muslim religious leaders.

But here’s the good news! As weird as it all looks, Turkey actually has a very successful model of blending religion with modernism compared to many other Muslim-majority countries, and they’re working on exporting it.  So read up on the Turkish schools in Pakistan, as well as the most important man you’ve probably never heard of — especially as Turkey begins to expand its role in regional diplomacy.

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I see your pirates and raise you

On the BAMF scale, the British Army Gurkhas rank pretty high. A delightful legacy of colonialism, these Nepalese volunteer soldiers have an elite record of fighting for the crown.

Historically, the Gurkhas suffered from their exceptional status within the British military: While veterans from other countries, including Ireland and South Africa, were entitled to live in Britain after four years of Army service, Gurkhas were not. No matter how many years or service or medals, they were forced to apply through regular channels requiring them to show “strong ties” to the country besides their military record. (Claimants could cite relatives already in Britain, or the need for urgent medical treatment.) Given Nepal’s colonial history, the distinguished record of the Gurkha units, and the fact that the four-year rule applied to all other veterans, it’s frankly hard to find a non-racist explanation for the policy. Many Gurkha veterans, including winners of all sorts of military honors, currently remain in poverty in Nepal.

Last year, a government review expanded the four-year rule to Gurkhas with a huge caveat: the policy would only apply to those discharged from the military after 1997. The government neglected the thousands of pre-1997 veterans on grounds that the regimental headquarters had been located in Hong Kong, not Britain, until that year.

Facing this, lawyers brought a test case on behalf of 5 veterans and 1 widow demanding inclusion of all Ghurkas under the standard four-year rule. The government expected that “Crown service as such [would] probably not be sufficient,” and even claimed that “Winning the Victoria Cross…[did not] necessarily constitute a strong tie.”

Today, the good guys won. The High Court of London, citing the “moral debt of honour” of the British people, ruled that the four-year standard be expanded to include Gurkhas discharged before 1997. Laywer Martin Howe called it “a victory that restores honour and dignity to deserving soldiers who faithfully served in Her Majesty’s armed forces,” as well as “a victory for common sense, fairness, and the British sense of what is right.” The ruling could affect up to 2,000 Gurkhas.

Good for the veterans, good for the lawyers, and good for the High Court of London.

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The $64,000 question

Name a Supreme Court decision.

“Roe v. Wade.”

Point, wingnuts.  Now name another.

“…”

Seriously.  Jonathan Martin reports:

“Of concern to McCain’s campaign, however, is a remaining and still-undisclosed clip from Palin’s interview with Couric last week that has the political world buzzing.  The Palin aide, after first noting how “infuriating” it was for CBS to purportedly leak word about the gaffe, revealed that it came in response to a question about Supreme Court decisions.

After noting Roe vs. Wade, Palin was apparently unable to discuss any major court cases.

There was no verbal fumbling with this particular question as there was with some others, the aide said, but rather silence.”

Brown v. Board?  Marbury v. Madison?  Kramer v. Kramer?

It could get real ugly the end of this week.  CBS apparently has more video footage from the Couric interview.  The network shot parallel sit-downs with Palin and Biden, which they had planned to run in advance of the VP debates.  According to Howard Kurtz of the Washington Post:

“The worst may be yet to come for Palin; sources say CBS has two more responses on tape that will likely prove embarrassing.”

No one knows the full content, but we could be talking epic fail.  (L’shanah tovah, everyone.)

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