THE SAGA OF THE MERCENARY SOLDIER PART II

Mercenaries are in the headlines again, this week in the madness and insanity that is Qaddafi's Libya. My initial thoughts when I first saw this was that the North African Nutjob had a cadre of Eastern European professional soldiers as a sort of Varangian Guard, but as it turns out Qaddafi's personal foreign legion are basically a pack of thugs from Zimbabwe:

Tooling around in Tobruk, looking for some ass to kick.

Suspected African mercenaries stand in a room in a court in Benghazi as they are held by anti-Qaddafi protesters, February 24, 2011


If these guys are anything like any and every African soldier I ever trained, worked with or encountered on the battlefield; they've all got malaria, half of them can't read or write, and their only understanding of the Law of Land Warfare is that they're breaking every law in the book. No matter how hard you train them, in contact they revert to the "spray-and-pray" school of gunfighting and the safest place to be when they're shooting at you is right out in the middle of the street because they can't hit the broad side of a barn from the inside.

A dead Zimbabwean, formerly in the hire of Muammar Qaddafi


These are heathen savages, capable of the most horrific atrocities. To call them barbarians is an insult to all barbarians everywhere and the only thing professional about Qaddafi's mercenaries is the fact that they've been doing what they're doing for a prerequisite period of time. Their knowledge of tactics or gunnery starts at the buttstock of their Kalishnikov and ends at the business end.

Amongst Africans, the term "mercenaries" has mystic, almost supernatural connotations.


Despite the public's fascination with the subject, there's a lot of misunderstanding about the term "mercenary". Most people consider a mercenary to be a soldier that serves merely for wages. According to this broad definition, practically every member of every standing, professional army in the world is a mercenary - and I've actually heard American soldiers referred to in this vein.

A more selective definition is found in Webster’s Dictionary: "a mercenary is a soldier hired into foreign service serving merely for pay or sordid advantage." According to this criteria, every foreign national serving in the U.S. military - including yours truly - is a mercenary.

According to the definitions found within the Hague and Geneva Conventions; a mercenary is a professional soldier hired by a foreign army, as opposed to a soldier enlisted in the armed forces of the sovereign state of which he is a citizen, and is "motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the Armed Forces of that Party" (Additional Protocol I to the Geneva Convention of August 1949).

Non-conscript professional members of a regular army are not considered mercenaries even though they get remuneration for their service. Under this definition, even members of the French Foreign Legion and the Gurkha Regiment are technically not mercenaries under the Laws of Land Warfare, even though they meet many of the requirements of Article 47 of the 1949 Additional Protocol I; they are exempt under clauses 47(a)(c)(d)(e)&(f). Journalists tend to describe these soldiers as mercenaries regardless.

There ARE mercenaries out there; I have known a few. Adventurers, guns-for-hire, some of them I even consider professional counterparts, but more often than not their activities are of questionable legal or ethical nature. I myself have been called a mercenary but this is a stretch; I retired honorably from the military, and I work in the security profession. I am certainly not a criminal, and there are some things that I simply will not do for pay.

The notorious Thahan Phran (ทหารพราน; literally "Hunter Soldiers") - an irregular light infantry force which patrols the borders of Thailand - are considered mercenaries, although they are technically part of the Royal Thai Army, and they certainly are not foreigners.

Thai Tahan Prahn soldier on security perimeter.


The private security contractors in the hire of the U.S. Department of Defense or State Department are not mercenaries; they are technically no different than the private security manning the gates at U.S. government facilities throughout the United States - they not mercenaries anymore so than postal inspectors are Federal Law Enforcement.


On the other hand, Qaddafi's goons ARE mercenaries, although I consider them professionals only in that they serve for pay. And in light of the way these brigands are conducting themselves, they are not soldiers any more than the Khmer Rouge or Hitler's SS were; "uniformed organized crime" is how I refer to this kind of scum.


. . . . . . . . . . . . . SEAN LINNANE SENDS


.

A MODERN DAY BREAKER MORANT?

MILITARY PROSECUTORS WITHHOLD EVIDENCE; ARMY RANGER GOES TO PRISON FOR 25 YEARS FOR SHOOTING AL QAEDA OPERATIVE


Yesterday I posted about Australian hero Harry 'Breaker' Morant - this was actually a prologue to a current issue; the extraordinary case of American Army Ranger 1st Lieutenant Michael Behenna of Oklahoma.



1LT Michael Behenna

In March 2009 1LT Behenna was sentenced to twenty-five years for the premeditated murder of a detainee while serving in Iraq. He is currently serving his sentence at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

Another soldier from Behenna's platoon, Staff Sergeant Hal Warner, pleaded guilty to his involvement in the case and was sentenced to 17 months in prison. Warner is from of Braggs, Okla.


Michael Behenna's platoon in Iraq, 2007-2008


According to the prosecution Behenna killed Ali Mansur, a known al-Qaida operative, whom Behenna organized an attack on 1LT Behenna’s platoon in April 2008 which left two of Behenna's soldiers dead and another two wounded. Mansur was taken into custody in May of 2008 and then later ordered released. 1LT Behenna was instructed to escort him to his home.

En route there Behenna stopped in a secluded railroad culvert near Beiji, Iraq, and began questioning Mansur, seeking to obtain information about his terrorist confederates and the identity of those financially backing them. Up until then there is no dispute about the facts of the matter. It was what happened next that created the controversy.

During this interrogation that Behenna said Mansur suddenly lunged at him and so he shot him twice, in self-defense.

Behenna's lawyers claimed that Behenna fired one shot at Mansur as he had his arms raised and was lunging for the soldier's gun, then fired a second shot that apparently hit Mansur in the head as he fell.

The government, however, charged Behenna with premeditated murder. Prosecutors alleged that Behenna stripped Mansur naked, seated him on a rock and then executed him with a shot to the head.


Enroute


In the trial that followed, expert testimony was presented that would have exonerated Lt. Behenna. This testimony was deliberately withheld from the court.

1LT Behenna's defense lawyer, Army JAG Officer James Phillips - now a civilian lawyer - explains the episode, and his version of how the government conducted the subsequent Court Martial:


JAG LAW Blog - LT Behenna’s Ongoing Defense.

"Several weeks before the killing of Ali Mansur took place, LT Behenna’s squad captured Ali Mansur at his home. They had credible information to believe he was part of Al Qaeda and that he was a terrorist that had been involved in the death of several of LT Behenna’s squad members. The members of LT Behenna’s squad, along with SSG Warner, showed restrained at that time. If they had wanted to, they could have easily made up a plausible story that Ali Mansur resisted his capture. There were illegal weapons at Ali Mansur’s home and it would have been a simple matter to kill him during the armed take down of that home. But, that is not what happened.

"LT Behenna and the members of his squad decided that they would let the authorities investigate Ali Mansur. They dropped him off at a detention facility with all of the information that they knew about his terrorist activities and hoped that justice would prevail. Instead, within a matter of weeks, LT Behenna and his squad were asked to return Ali Mansur to his home and his village. Military Intelligence determined that they didn’t have enough to hold Ali Mansur despite the RPGs, weaponry and illegal passports from Iran that were found at his home. Clearly, Ali Mansur was involved in nefarious activities and LT Behenna believed he had credible evidence to prove that.

"LT Behenna’s frustration at the release of Ali Mansur back to his family was understandable. After witnessing the death of the men in his squad, in what he believed was directly related to the activities of Ali Mansur, was surely a motivating factor in driving Ali Mansur to the desert and stripping him naked.



A Checkpoint in the Desert


"As a former JAG, I understand the need for the laws of war. I just don’t believe ultimately that the decisions that are made on the battlefield are so easily codified and analyzed as to fit in the Geneva Conventions. If SSG Warner and LT Behenna had deliberately decided to kill Ali Mansur when they picked him on that first day, would that have gotten LT Behenna 25 years of jail? Probably not."


EVIDENCE WITHHELD BY PROSECUTORS

One of the government’s expert witnesses; a highly respected Forensic expert, Dr. Herbert Leon MacDonell, Director of the Laboratory of Forensic Science in Corning, N.Y. Dr. MacDonell consulted in the O.J. Simpson case and participated in investigations into the assassinations of Sen. Robert F. Kennedy and Dr. Martin Luther King Jr. Dr. MacDonell insisted Behenna was innocent and he could prove it. His testimony would have proven that the angle of the gun shots and the blood spatter were consistent with self-defense not premeditated murder.

At the Court Martial, however, military prosecutors withheld exculpatory evidence provided by their own expert witness from the defense team until after the trial wrapped up.


Soldier's Conviction in Death of Iraqi Insurgent Challenged -
Cites Evidence Withheld by Prosecutors

The controversy revolves around a statement from Dr. MacDonell, where described how the evidence indicated Ali Mansur was killed. In an e-mail obtained by defense counsel after the trial was concluded, MacDonell wrote that he was "concerned" that he was not allowed to testify "and have a chance to inform the court of the only logical explanation for this shooting."

Dr. MacDonell stated, "As I demonstrated to you and to the other two prosecutors, Dr. Berg, Sgt. McCaulley, and Sgt. Rogers, from the evidence I feel that Ali Mansur had to have been shot in his chest when he was standing. As he dropped straight down he was shot again at the very instant that his head passed in front of the muzzle.

"Admittedly, this would be an amazing coincidence, however, it fits the facts and … I cannot think of a more logical explanation," he continued.

"This scenario is consistent with the two shots being close together, consistent with their horizontal trajectory, consistent with the bloodstains on the floor, and consistent with the condition of the 9 mm flattened out bullet which was tumbling… When I heard Lt. Michael Behenna testify (Thursday) as to the circumstances of how the two shots were fired I could not believe how close it was to the scenario I had described to you on Wednesday. I am sure that had I testified I would have wanted to give my reenactment so the jury could have had the option of considering how well the defendant's story fit the physical facts," he wrote.

"This, of course, would not have been helpful to the prosecution case. However, I feel that it is quite important as possible exculpatory evidence," he said.


LIEUTENANT BEHENNA IS TELLING THE TRUTH

Dr.MacDonnell told Behenna's lawyer Jack Zimmerman, who had successfully represented one of the Haditha Marines, that he fully agreed with Behenna's account of what happened, essentially destroying the government’s case he had been called to support.

Incredibly, the key witness in the case was not called to testify in the
case. After telling prosecutors what the forensic evidence showed - that Behenna was guiltless - this expert witness was sent packing. Before he retrieved his coat from the prosecution room he told the three prosecutors, "The explanation that Lt Behenna just testified to was the exact same scenario I told you yesterday. Lt Behenna is telling the truth."

This dropped a bombshell on the government's case.

Despite the fact that prosecutors must disclose any exculpatory evidence they have to the defense, they denied having any such evidence despite having been told by their own expert witness that 1LT Behenna’s explanation was the only logical explanation.

Withholding of this evidence allowed prosecutors to argue that Behenna executed Ali Mansur while seated DESPITE THE FACT THAT forensic experts, including Dr. MacDonnell, agree that Ali was standing with his arms outstretched when shot.

After 1LT Behenna was convicted and sentenced in mid February 2009, the Defense, through Attorney Jack Zimmerman, made a claim that the trial was inherently unfair because a prosecution expert agreed with the defense experts that the forensic evidence suggested that Ali Mansur was probably standing at the time that he was shot. This was the central theme of the defense throughout the trial; Ali Mansur, although naked, had made a threatening move by standing up before he was shot by LT Behenna. This, combined with the fact that Ali Mansur was a suspected terrorist, should have lead the military panel to find that LT Behenna was legally justified in killing Ali Mansur.

In a sworn affidavit, dated April 21, Dr. MacDonnell explained how knowledge he acquired while waiting to testify in the case could have changed dramatically its outcome.

"When I heard Lt. Behenna describe what happened, I did not say other witnesses were lying, or that my conclusion was based on my opinion of the Lieutenant’s credibility. My expert opinion was based on the fact that the Lieutenant’s description as to how the shooting occurred fit the physical evidence."

1LT Behenna was convicted of unpremeditated murder and assault by a military panel of seven officers, none of whom had ever seen a minute of combat or ever heard a word of MacDonald's suppressed testimony, largely due to the fact the evidence that would have proved he was not guilty was never allowed to be heard during the court-martial.


BOTH SIDES OF THE STORY:


Michael's Platoon on Patrol


Translator Testifies He Saw Officer Shoot Iraqi

By Kristin M. Hall, AP Feb 26, 2009

FORT CAMPBELL, Ky. — An Iraqi translator told a military jury at Fort Campbell on Wednesday that he saw an Army officer shoot and kill an Iraqi detainee.

The testimony came at the trial of 1st Lt. Michael Behenna, of Edmond, Okla., who is charged with premeditated murder, assault and making a false statement.

Behenna is accused of killing Ali Mansour Mohammed in May 2008 near Beiji, Iraq. If convicted of premeditated murder, he faces a mandatory life prison sentence without parole.

A second Fort Campbell soldier charged in the case — Staff Sgt. Hal Warner, of Braggs, Okla. — agreed to testify against Behenna as a part of a plea agreement.

The translator, identified in court as “Harry,” also said he saw Warner set fire to the detainee’s body with a grenade.

Harry served as an interpreter with Behenna’s platoon when they went out on missions. One of those missions was a trip to a local Iraqi leader’s house to get information about suspected insurgents in the area. Harry said Behenna had been told Mohammed was “a bad guy.”

Prosecutors have said that Behenna believed the detainee had information regarding a roadside bomb that killed two soldiers in Behenna’s platoon.

When the soldiers went to pick up Mohammed from his home, Harry said he watched Behenna repeatedly strike Mohammed on the back with his helmet during an interrogation. Warner, who also testified Wednesday, confirmed that he saw Behenna strike Mohammed, but said he was only struck once.

Mohammed was detained and questioned by interrogators until he was ordered to be released on May 16, according to the Army.

That day, Behenna took Mohammed aside and with Harry started questioning him again about giving information about insurgents in the area. Behenna verbally threatened the detainee, Harry said.

“He told him, ‘Today, I’m going to kill you,”’ he told the jury.

Harry testified that he believed the threat was a tactic to scare the detainee and did not believe that Behenna intended to kill him.

Later that same day, near an isolated railroad culvert, Behenna began interrogating the detainee again, this time with his pistol drawn, Harry said.

Harry said he translated Behenna’s questions, then pleaded for the detainee to cooperate.

“I told him ‘You’d better talk. Why do you put yourself in this situation?”’ the translator testified.

The translator also said the man then agreed to talk, but before Harry could translate, Behenna fired.

As the detainee started to slump over, he was shot again, Harry said.

“I didn’t exactly see where the bullets hit, but I saw him fall and I saw blood,” he said.

Warner, who was a short distance away when he heard the first shot, came running to the culvert with his flashlight and weapon.

“I could see what appeared to be Lt. Behenna with a pistol pointing at the detainee,” Warner said.

However, Warner said he moved the light and as a result, did not see the second shot until the muzzle flashed.

Warner initially was also charged with premeditated murder, but those charges were dropped as a part of his plea agreement with military prosecutors.

Warner said Behenna told him to “throw it,” and Warner tossed an incendiary grenade on the body. Later Warner said he disposed of the detainee’s clothing.


According to Michael Behenna's JAG Lawyer:

Judge Dickson during the mistrial motion and the military panel during the finding of fact had to weigh the direct testimony of witnesses against the expert testimony. In this case, the experts of both the defense and apparently one from the prosecution were in direct conflict with the eyewitnesses, Harry the interpreter and SSG Mitch Warner. In this case, there may be a reason that there was such a big discrepancy.

When this case was initially investigated, the Iraqi police were not the first on the scene. Members of Ali Mansur’s family and friends initially arrived to inspect the body. They tampered with the evidence, moved the body and moved the forensic evidence. The main police video was taken on a handheld cell phone. The evidence of the grenade fragments were turned over to the the Army’s Criminal Investigation Division by the Iraqi police after they had retrieved them from Ali Mansur’s family. There was literally no chain of custody on much of the evidence. At the Article 32 hearing, the Iraqi Pathologist misidentified Ali Mansur’s body and much of his autopsy seemed questionable. And, finally, SSG Warner’s testimony was not fully explored until less than a week prior to LT Behenna’s trial. Most of the experts, who rely on some eyewitness testimony to recreate their crime scenes, had little or not reliable evidence to work with.

This unreliable evidence, couple with conflicting eyewitness testimony, made it extremely difficult for the military panel to use experts as the basis for their final verdict. Unfortunately for LT Behenna, the military panel was in a position where they had to use their own judgment to determine whether or not to believe the defense’s expert witnesses.

This is why it may be difficult to determine whether or not the prosecution was out of line in not calling their own expert witnesses to the stand after the defense expert witnesses testified that Ali Mansur was probably standing at the time he was shot.



The day Michael Behenna left for Iraq, in 2007



Michael's family has established the DEFEND MICHAEL website, to get the word out and help develop Congressional support for clemency.



-------------------------------------------------------------------------------------


MY TAKE ON THIS?

This is yet another example that you can't conduct a war like a law enforcement operation. Behenna knew Ali Mansur was dirty - and yet the Army in it's wisdom released the al Qaeda operative back into the custody of 1LT Behenna; whose platoon had been ripped apart by the al Qaeda-planned operation.

The Army shouldn't have released the al Qaeda operative, MOST CERTAINLY not to 1LT Behenna; we know what happened after that. Behenna decided to conducted an impromptu interrogation - something he wasn't trained to do - and predictably things got out of hand from there.

Once it went to Court Martial the Army sat on their own expert witness testimony; testimony that would have cleared Behenna of the 'premeditated' portion of the charges at very least.


* * * * * * * * * * * * *


"War is simple, direct and ruthless."

- General George S. Patton



* * * * * * * * * * * * *


"You kill one of ours, we kill ten thousand of yours."

- STORMBRINGER


.

THE SAGA OF THE MERCENARY SOLDIER, Part I

My intent was to write a brief history of mercenaries throughout the ages. The story of the World's Second Oldest Profession is anything BUT brief, however, and as I researched it the project grew; large and exhaustive. Despite my inside knowledge of the trade, I was still surprised by what I learned.

I tried to organize the information I gained in chronological order, but this is difficult. It seems the role of the private soldier has had far-reaching effects from the Dawn of History into our modern civilization. When you think about it, this only makes sense; War is the punctuation of History.

What follows is Part I; an overview of what a Mercenary is, as defined by the International Law of Land Warfare, and the United State Uniformed Code of Military Justice.

- Sean Linnane, January 2010



Modern mercenary sniper, Siege of Sarajevo, circa 1993

From Webster’s: mer•ce•nary, noun, plural mer•ce•nar•ies: one that serves merely for wages; especially : a soldier hired into foreign service adjective: Function: adjective 1 : serving merely for pay or sordid advantage : venal; also : greedy, 2 : : hired for service in the army of a foreign country, 3: having or marked by an eager and often selfish desire especially for material possessions "a mercenary urge to own the latest and most expensive item in home electronics" Etymology: Middle English, 14th century, from the Latin mercenarius, irregular from merced-, merces wages






A mercenary is a professional soldier hired by a foreign army, as opposed to a soldier enlisted in the armed forces of the sovereign state of which he is a citizen. He takes part in armed conflict on many different scales, and is "motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the Armed Forces of that Party" (Additional Protocol I to the Geneva Convention of August 1949). A non-conscript professional member of a regular army is not considered to be a mercenary although he gets remuneration for his service.

As a result of the assumption that a mercenary is essentially motivated by money, the term "mercenary" usually carries negative connotations, though that can be a compliment in some contexts. There is a blur in the distinction between a "mercenary" and a "foreign volunteer", when the primary motive of a soldier in a foreign army is uncertain.




French Foreign Legionnaire, Bosnia circa 1995


For instance, the French Foreign Legion and the Gurkhas are not mercenaries under the laws of war, since although they may meet many of the requirements of Article 47 of the 1949 Additional Protocol I, they are exempt under clauses 47(a)(c)(d)(e)&(f); some journalists describe them as mercenaries regardless.



Nepali Gurkha soldiers in the service of the British Army


The Geneva Conventions of 12 August 1949 provides the most widely accepted international definition of a mercenary, though not endorsed by some countries - including the United States. The Protocol Additional to the Geneva Convention and relating to the Protection of Victims of International Armed Conflicts, (Protocol I), 8 June 1977 states:

Article 47. Mercenaries

1. A mercenary shall not have the right to be a combatant or a prisoner of war.

2. A mercenary is any person who:

(a) is especially recruited locally or abroad in order to fight in an armed conflict;

(b) does, in fact, take a direct part in the hostilities;

(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;

(e) is not a member of the armed forces of a Party to the conflict; and

(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

According to the Geneva Convention, all of the above criteria (a - f) must be met for a combatant to be described as a mercenary.






According to Geneva, a captured soldier must be treated as a lawful combatant and, therefore, as a protected person with prisoner-of-war status until facing a competent tribunal (GC III Art 5). That tribunal, using criteria in APGC77 or some equivalent domestic law, may decide if that soldier is a mercenary. At that juncture, the mercenary soldier becomes an unlawful combatant but still must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial", being still covered by GC IV Art 5. The only possible exception to GC IV Art 5 is when he is a national of the authority imprisoning him, in which case he would not be a mercenary soldier as defined in APGC77 Art 47.d.

If, after a regular trial, a captured soldier is found to be a mercenary, then he can expect treatment as a common criminal and may face execution. As mercenary soldiers may not qualify as PoWs, they cannot expect repatriation at war's end. The best known post-World-War-II example of this was June 1976 when an Angolan court sentenced three Britons and an American to death, and nine other mercenaries to prison terms ranging from 16 to 30 years. The four mercenaries sentenced to death were shot by a firing squad on July 10, 1976.



Costas Georgiou (Greek: Κώστας Γιώργιου, alias "Colonel Callan") was a Greek Cypriot mercenary executed following the Luanda Trial for activities during the civil war phase of the Angolan War of Independence.



On 4 December 1989 the United Nations passed resolution 44/34, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention. Article 1 contains the definition of a mercenary. Article 1.1 is similar to Article 47 of Protocol I, however Article 1.2 broadens the definition to include a non-national recruited to overthrow a "Government or otherwise undermining the constitutional order of a State; or Undermine the territorial integrity of a State;" and "Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation..." — under Article 1.2 a person does not have to take a direct part in the hostilities in a planned coup d'état to be a mercenary.

Critics argue that the convention and APGC77 Art. 47 were directed to mercenary activities in post-colonial Africa and do not adequately address the use of private military companies (PMCs) by sovereign states.

The situation during the Iraq War and after the United Nations Security Council sanctioned hand-over of power to the Iraqi government shows the difficulty of defining a mercenary soldier. While the United States governed Iraq, no U.S. citizen working as an armed guard could be classified as a mercenary, because he was a national of a Party to the conflict (APGC77 Art 47.d).




The legal status of civilian contractors depends upon the nature of their work and their nationalities with respect to that of the combatants. If they have not "in fact, taken a direct part in the hostilities" (APGC77 Art 47.b), they are NOT mercenaries but civilians who have non-combat support roles and are entitled to protection under the Third Geneva Convention (GCIII 4.1.4). This includes armed civilians authorized to use deadly force in self-defense.


BET YOU DIDN'T KNOW THAT DEPARTMENT:

Contrary to widespread popular misconception, Private Military Companies and private security contractors ARE subject to the legal constraints of the
Uniformed Code of Military Justice:


New U.S. law on Private Military Companies:

According to the FY2007 Defense Budget Appropriation Bill, the Uniformed Code of Military Justice (UCMJ) has been amended to allow for prosecution of military contractors who are deployed in a "declared war or a contingency operation."

"SEC. 552. CLARIFICATION OF APPLICATION OF UNIFORM CODE OF MILITARY JUSTICE DURING A TIME OF WAR. Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the UCMJ), is amended by striking 'war' and inserting 'declared war or a contingency operation'."

Previously, the code applied to "persons serving with or accompanying an armed force in the field" only during a war, which US courts interpreted to mean a war declared by Congress. No such declaration was made in the Iraq conflict. In 2006 Congress amended the code to apply to persons accompanying an armed force during a "declared war or contingency operation."




General Data on the Number of Private Security Contractor Personnel in Iraq and Afghanistan

(Source: Operational Contract Support "State of the Union" May 2009; Office of the Deputy Under-Secretary of Defense, Logistics & Materiel Readiness)

o Private security contractors perform personal security, convoy security, and static security missions. Not all private security contractor personnel are armed.

o USCENTCOM reports, as of 10 May 2009 , the following distribution of private security contractors in Iraq and Afghanistan:

o There was a 23% increase (from 8,701 to 10,743) of armed DoD PSCs in Iraq compared to the 1st quarter FY 2009 census. This increase can be attributed to our improved ability to account for subcontractors who are providing security services.

o There was a 29% increase (from 3,184 to 4,111) of armed DoD PSCs in Afghanistan compared to the 1st quarter FY 2009 census. The increase correlates to the build up of forces in that AOR.

General Conditions Regarding Contracts and Contractor Personnel

The Combatant Commander has provided specific guidance on arming contractor personnel and private security contractors in the USCENTCOM AOR through a series of Fragmentary Orders (FRAGOs) and other authoritative guidance, including the following:

Private security contractor personnel are not authorized to participate in offensive operations and must comply with specific USCENTCOM Rules for the Use of Force (RUF). Under these RUF, private security contractor personnel are authorized to use deadly force only when necessary in: self-defense, defense of facilities / persons as specified in their contract; prevention of life-threatening acts directed against civilians; or defense of Coalition-approved property specified within their contract. The Multi-National Force - Iraq (MNF-I) issues to approved private security contractor personnel a weapons card authorizing them to carry a weapon. This weapons card also contains the guidance for the RUF and the contractor personnel’s signature acknowledging the difference between the RUF and the Rules of Engagement.




Private security contractor personnel in Iraq must be properly licensed to carry arms in accordance with host nation law and must receive USCENTCOM / Coalition Forces’ approval of their operations. Coalition Provisional Authority Order 17 (CPA 17), Status of the Coalition, Foreign Liaison Missions, Their Personnel and Contractors (June 23, 2003), is still in effect. It addresses Private Security Contractors operating in Iraq and requires the contractor’s understanding of and compliance with all applicable:

o U.S., host nation, and third country national laws;

o Treaties and international agreements;

o U.S. regulations, directives, instructions, policies; and

Orders, Standing Operating Procedures, and policies issued by the Combatant and / or Operational Commanders:

o MNF-I forces are authorized to stop, search, seize weapons, and detain civilians armed under MNF –I Fragmentary Order (FRAGO) 07-428 (Armed Contractors / DoD Civilians and PSCs), if MNF-I forces observe a RUF violation, exhibitions of criminal behavior, or conduct that threatens security.

o DoD contractor personnel armed by DoD authority must report any use of force, including the firing of a weapon. This requirement and the required information to be submitted are identified within the terms of the contract and MNF–I FRAGO, 07-428. MNF-I forces must report any use of force by a civilian armed under the requirements of this FRAGO to their chain of command.






To Be Continued . . . . . . S.L.


.

SCUTTLEBUTT

Yesterday LoTM asked:

Do you have any more info on the 3 SEAL petty officers facing charges in Seal Team Ten? Is there any word on the Navy 4 striper who ordered the initial Mast, that was refused, and who relieved the CO of Team Four? Is he OK or is it what we fear? Before we panic and assume the Admirals and Captains are colluding to destroy the SpecOps community it is unclear. He may be doing what is right but it sure looks bad.


. . . so I asked around, ended up speaking with a SEAL who works in a Joint billet & is in a position to know . . . (I can't get any more specific than that - in the past I alluded to my sources more specifically and got my fingers burned and a good friend in trouble - you'll just have take my word for it, this is coming from deep within the SpecOpns Community) . . . here's the deal:


Conventional sentiments regarding Spec Opns units notwithstanding, my source this one looks like its going to blow over. The prisoner showed up with a busted lip; given the microscopic filters the pro-Islamist-bleeding-heart-liberals have set up over our prisoner handling operations, right away a complaint gets filed.

The SEALs were charged under UCMJ "Captains Mast" of prisoner abuse, then covering it up. The SEALs took their prerogative to refuse the nonjudicial punishment and ask for a Court Martial - this is what you do if you know you're right and you're going to beat the rap - and were assigned JAG lawyers.

A complaint gets filed, that means an investigation MUST be initiated - the commander has no alternative - and it doesn't necessarily indicate a witchhunt. It's just like an HR complaint in the civilian world; the process is not pleasant but it's not predetermined either. Word on the street is these guys are going to be OK.

Here's the background:

Fox News reported that three Navy SEALs are facing a court martial for allegedly punching a terrorist after he was captured.

Ahmed Hashim Abed, whom the military code-named “Objective Amber,” told investigators he was punched by his captors — and he had the bloody lip to prove it.

Now, instead of being lauded for bringing to justice a high-value target, three of the SEAL commandos, all enlisted, face assault charges and have retained lawyers.

Matthew McCabe, a Special Operations Petty Officer Second Class (SO-2), is facing three charges: dereliction of performance of duty for willfully failing to safeguard a detainee, making a false official statement, and assault.

Petty Officer Jonathan Keefe, SO-2, is facing charges of dereliction of performance of duty and making a false official statement.

Petty Officer Julio Huertas, SO-1, faces those same charges and an additional charge of impediment of an investigation.

The source said intelligence briefings provided to the SEALs stated that “Objective Amber” planned the 2004 Fallujah ambush, and “they had been tracking this guy for some time.”

The Fallujah atrocity came to symbolize the brutality of the enemy in Iraq and the degree to which a homegrown insurgency was extending its grip over Iraq.




March 31, 2004: Iraqis chant anti-American slogans as the charred and mutilated bodies of U.S. contractors hang from a bridge over the Euphrates River in Fallujah, Iraq.


The four Blackwater agents were transporting supplies for a catering company when they were ambushed and killed by gunfire and grenades. Insurgents burned the bodies and dragged them through the city. They hanged two of the bodies on a bridge over the Euphrates River for the world press to photograph.

Intelligence sources identified Abed as the ringleader, but he had evaded capture until September.



***********************************************************************


The way I see it, Hajii there is lucky they didn't fix bayonets. Hey, I've done muzzle thumps on guys before; "What are all these little circles on Stinky's skinny ribcage?"

In an earlier time, a prisoner shows up with a busted lip - no big deal, right? "He made a threatening gesture". I mean, the way I was taught, all they have to be is breathing when you turn them over. If they're wounded, slap a bandaid on them before you move out; there, you've just satisfied Geneva because you have to render aid, right? Nobody says it has to be the same quality & standards you give your own guys, right?


I sure hope my source is right about these guys . . .


. . . S.L.