OPM Hit By Class Action Lawsuit, and Those Phishing Scams You Feared Over #OPMHack Are Real (Corrected)

Posted: 7:16 pm  EDT

 

The largest federal employee union, the American Federation of Government Employees, filed a class action lawsuit today against the Office of Personnel Management, its director, Katherine Archuleta, its chief information officer, Donna Seymour and Keypoint Government Solutions, an OPM contractor.
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A couple of weeks ago, we thought that the “recipe” from the OPM email notification sent to potentially affected employees via email might be copied by online scammers.

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Today, the United States Computer Emergency Readiness Team (US-CERT), part of part of DHS’ National Cybersecurity and Communications Integration Center (NCCIC) issued an alert on phishing campaigns masquerading as emails from the Office of Personnel Management (OPM) or the identity protection firm CSID.

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Social Media Security Screening Is Here: OPM to Make Sole Source Award For Use in Background Investigation

Posted: 1:01 am  PDT

 

Last September, Mike Kelly, the Republican Representative for Pennsylvania’s 3rd congressional district introduced the Enhanced Security Clearance Act of 2014 (HR 5482) aimed at the implementation of enhanced personnel security programs which requires agency programs to “integrate information from government, publicly available, and commercial data sources, consumer reporting agencies, and social media.”

Mr. Kelly told ZDNet, “In particular, the bill will update government background checks to include an applicants’ publicly available electronic data including social media accounts such as Facebook and Twitter.” This bill was introduced on September 16, 2014, in a previous session of Congress, but was not enacted.

Well, the bill may have died but it was only a matter of time before social media content becomes part of the federal background investigation.

The Federal Investigative Services (OPM-FIS) provides investigative products and services for over 100 Federal agencies to use as the basis for suitability and security clearance determinations. OPM provides over 90% of the Government’s background investigations, conducting over two million investigations a year.

On June 17, the Office of Personnel Management, Federal Investigative Service (FIS), PIC Acquisitions Team, published a “Notice of Intent to Sole Source – PAEI Reports” to Social Intelligence, a company headquartered in California.  Social media content is now officially called Publicly Available Electronic Information (PAEI). If we’re reading this correctly, it looks like there already are pilot projects with the same company conducted with the U.S. Army, the Office of Director of National Intelligence (ODNI), the Department of State and the National Reconnaissance Office.

Below is the published notice via fedbiz:

It is the intention of the agency to award a firm-fixed price agreement to Social Intelligence for publicly available electronic information (PAEI) reports. This is not a solicitation for quotations, but rather a notice of the agency’s intent to make a sole source award to Social Intelligence.

The U.S. Office of Personnel Management (OPM) Federal Investigative Services (FIS) seeks to award a firm-fixed price agreement to Social Intelligence who will conduct searches of multiple sources of PAEI in an automated manner and provide complete, accurate, standardized reports to OPM-FIS when searches result in information pertinent to Subjects of Investigation.

OPM-FIS is participating in a set of pilot projects with other federal investigative service providers to evaluate the use of PAEI in the background investigative process. This acquisition will provide 400 PAEI reports over a period of approximately 6-9 months for a sample population of investigations to assess the OPM-FIS operational end-to-end process and relevancy to the investigation along with the effects of quality, costs and timeliness. The vendor must also provide high level training on how to review and analyze the PAEI reports and also provide customer and technical support 24×7 until 400 PAEI reports have been provided to OPM-FIS.

Social Intelligence is the only source that possesses knowledge and expertise obtained through participation in other high level government PAEI pilot projects, to include pilots with the U.S. Army, the Office of Director of National Intelligence (ODNI), the Department of State and the National Reconnaissance Office. Social Intelligence is the only one available whose product will result in a consistent and accurate comparative analysis between results of the OPM-FIS pilot and other government agencies’ pilots. This vendor’s personnel have experience with and have received training on the personnel security process and the thirteen adjudicative guidelines due to participation in previous government pilots. Such experience is required in order to appropriately identify issues containing relevant adjudicative information. Only data that meets the adjudicative guidelines will be collected and retained by OPM-FIS.

This vendor was deemed a consumer reporting agency (CRA) by the Federal Trade Commission, as defined by the Fair Credit Reporting Act. As of January 2013, the vendor was the only social media background screening company designated as a CRA. This designation is important as the FTC has ruled that CRAs must take reasonable steps to ensure the maximum possible accuracy of the information reported from social media sites. All of the above make Social Intelligence a unique source that would provide the best solution with the least risk to the government for this pilot.

According to its website, Social Intelligence (http://www.socialintel.com) “provides social media data, tools, and reports to commercial and Government organizations. Headquartered in Santa Barbara, Calif., the company has developed a unique suite of products including employment background screenings, insurance claims investigations, corporate due diligence, and Government services. … Social Intelligence was created to provide companies and governmental organizations publicly available online information, while ensuring this data is used appropriately and legally.” It provides the following services:

  • Social Intelligence’s Social Monitoring & Evaluation solutions provide a powerful and cost-effective way to monitor and evaluate an individual’s ongoing online activity across the deep web.
  • Social Intelligence’s groundbreaking research into online identity science and its implications allows companies to confidently rely on social media and internet data. A fully automated capability, Social Intelligence’s proven, proprietary Identity Resolution algorithm identifies, matches, and scores aggregated publicly available online information, the first of multiple steps to solidify data veracity.

On it’s website, the company talks about “the opportunity at hand”  — apparently 64 million people are unscorable by traditional credit scores and 55% of millennials are willing to share their data in exchange for discounts.

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Burn Bag: If a T-wall tips over in Baghdad but there’s no media around to hear it, will it make a sound?

Posted: 10:31 am EDT

Via Burn Bag:

“If a T-wall tips over in Baghdad but there’s no media around to hear it, will it make a sound?  What if it crushes a local national contractor working on a USG facility— will anyone mention the man’s death, or can we expect radio silence as usual?  It’s becoming clear that no one back home really cares about what’s going on over here….it’s like 2004 all over again.”

U.S. Soldiers of Headquarters and Headquarters Company, Brigade Special Troops Battalion, 3rd Brigade Combat Team, 82nd Airborne Division, guide a concrete barrier into a new position at Joint Security Station Loyalty, eastern Baghdad, Iraq, on May 17, 2009

U.S. Soldiers of Headquarters and Headquarters Company, Brigade Special Troops Battalion, 3rd Brigade Combat Team, 82nd Airborne Division, guide a concrete barrier into a new position at Joint Security Station Loyalty, eastern Baghdad, Iraq, on May 17, 2009. Photo by Staff Sgt. James Selesnick

Note: “T-Walls” or Texas barriers can reached upwards of 12 to 18 feet in height. Some of the tallest reach 24 feet. According to army.mil, t-walls of the larger variety became symbols of life in Iraq although several variations of shapes and sizes also abound around Iraq.  Read more here.

 

Conspired to Defraud Uncle Sam? Be Very Afraid. We’re Gonna Put You in Home Confinement!

Posted: 9:40 am EDT

 

Remember the USAID nonprofit contractor IRD? (See Dear USAID OIG — That Nonprofit Contractor Mess Really Needs a Fact Sheet). Well, here’s another one.  This is a case where the CEO of a major USAID contractor gets feather-slapped by the court.

A 2011 ranking of private USAID partners by devex.com lists LBG as the third largest USAID private-sector partner that has contracted some of the government’s largest post-conflict redevelopment projects in Iraq and Afghanistan. According to Bloomberg, Louis Berger International, a unit of Louis Berger Group, got about $736 million to modernize a power system and rehabilitate the Kajakai Dam in Afghanistan.  Whoa! We thought that dam only cost $305.5 million! Plus cost of fuel that  US taxpayers also had to shoulder.

What is missing from this announcement? How much was the total contracts that LBG received in the last 20 years? Who’s paying the independent monitor? And for heaven’s sake, what lessons are we sending to other reconstruction capitalists doing awesome work for love of god and country?

Via USDOJ:

The former president, chief executive officer, and chairman of the board of a New Jersey-based international engineering consulting company was sentenced today to 12 months of home confinement and fined $4.5 million for conspiring to defraud the U.S. Agency for International Development (USAID) with respect to billions of dollars in contracts over a nearly 20-year period, U.S. Attorney Paul J. Fishman announced.

Derish Wolff, 79, of Bernardsville, New Jersey, previously pleaded guilty before U.S. District Judge Anne E. Thompson to a superseding information charging conspiracy to defraud the government with respect to claims. Judge Thompson imposed the sentence today in Trenton federal court.

According to documents filed in this case and statements made in court:

Wolff, the former president and CEO of Morristown, New Jersey-based Louis Berger Group Inc. (LBG), and the former chairman of LBG’s parent company, Berger Group Holdings Inc. (BGH), led a conspiracy to defraud USAID by billing the agency on so-called “cost-reimbursable” contracts – including hundreds of millions of dollars of contracts for reconstructive work in Iraq and Afghanistan – for LBG’s overhead and other indirect costs at falsely inflated rates.

USAID, an independent federal government agency that advances U.S. foreign policy by supporting economic growth, agriculture, trade, global health, democracy, and humanitarian assistance in developing countries, including countries destabilized by violent conflict, awarded LBG hundreds of millions of dollars in reconstruction contracts in Iraq and Afghanistan as well as in other nations. LBG calculated certain overhead rates and charged USAID and other federal agencies these rates on cost-reimbursable contracts, which enabled LBG to pass on their overhead costs to the agency in general proportion to how much labor LBG devoted to the government contracts.

From at least 1990 through July 2009, LBG, through Wolff and other former executives, intentionally overbilled USAID in connection with these cost-reimbursable contracts. The scheme to defraud the government was carried out by numerous LBG employees at the direction of Wolff.

Wolff targeted a particular overhead rate, irrespective of what the actual rate was, and ordered his subordinates to achieve that target rate through a variety of fraudulent means. From at least as early as 1990 through 2000, Wolff ordered LBG’s assistant controller to instruct the accounting department to pad its time sheets with hours ostensibly devoted to federal government projects when it had not actually worked on such projects.

At an LBG annual meeting in September 2001, Salvatore Pepe, who was then the controller and eventually became chief financial officer (CFO), presented a USAID overhead rate that was significantly below Wolff’s target. In response, Wolff denounced Pepe, called him an “assassin” of the overhead rate and ordered him to target a rate above 140 percent, meaning that for every dollar of labor devoted to a USAID contract, LBG would receive an additional $1.40 in overhead expenses supposedly incurred by LBG.

In response, Pepe and former controller Precy Pellettieri, with Wolff’s supervision, hatched a fraudulent scheme from 2003 through 2007 to systematically reclassify the work hours of LBG’s corporate employees, including high-ranking executives and employees in the general accounting division, to make it appear as if those employees worked on federal projects when they did not. At his plea hearing on Dec. 12, 2014, Wolff admitted that Pepe and Pellettieri, at Wolff’s direction, reclassified these hours without the employees’ knowledge and without investigating whether the employees had correctly accounted for their time, and at times did so over an employee’s objection.

In addition to padding employees’ work hours with fake hours supposedly devoted to USAID work, Wolff instructed his subordinates to charge all commonly shared overhead expenses, such as rent, at LBG’s Washington, D.C., office to an account created to capture USAID-related expenses, even though the D.C. office supported many projects unrelated to USAID or other federal government agencies.

On Nov. 5, 2010, Pepe and Pellettieri both pleaded guilty before then-U.S. Magistrate Judge Patty Shwartz to separate informations charging them with conspiring to defraud the government with respect to claims. Also on that date, LBG resolved criminal and civil fraud charges related to Wolff’s and others’ conduct. The components of the settlement included:

  • a Deferred Prosecution Agreement (DPA), pursuant to which the U.S. Attorney’s Office in New Jersey suspended prosecution of a criminal complaint charging LBG with a violation of the Major Fraud Statute; in exchange, LBG agreed, among other things, to pay $18.7 million in related criminal penalties; make full restitution to USAID; adopt effective standards of conduct, internal controls systems, and ethics training programs for employees; and employ an independent monitor who would evaluate and oversee the company’s compliance with the DPA for a two-year period;
  • a civil settlement that required the company to pay the government $50.6 million to resolve allegations that LBG violated the False Claims Act by charging inflated overhead rates that were used for invoicing on government contracts; and an administrative agreement between LBG and USAID, which was the primary victim of the fraudulent scheme.

In the settlement, the government took into consideration LBG’s cooperation with the investigation and the fact that those responsible for the wrongdoing were no longer associated with the company.

Click here for the original announcement (pdf).

 

Related posts:

Related items:

U.S. Passport Agency Contractor, Two Others Indicted for Alleged Use of Stolen Passport Information

Posted: 3:57 pm  PDT

 

A Grand Jury in the Southern District of Texas indicted three women charged with nine counts of wire fraud, conspiracy to commit wire fraud and aggravated identity theft in connection with the alleged use of U.S. passport information in Houston.  One of the women has been identified by media reports as a contractor working for the State Department. Both the AP and local news say that the Houston and Atlanta passport offices were targeted.

Beginning on or about the year 2010 until on or about March 2, 2015, in the Houston Division of Southern District of Texas and elsewhere,

CHLOE ALYSE MCCLENDON, DOMONIQUE RASHAD THOMAS, A/K/A DOMINIQUE RASHAD THOMAS, A/K/A “TEEN” A/K/A “NIQUE”, and ALICIA LENA MYLES,

defendants herein, did knowingly combine, conspire, confederate, and agree with others known and unknown to the Grand Jury to devise and intend to devise a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations, and promises, and in execution of said scheme and artifice, transmit or cause to be transmitted by means of wire in interstate commerce, writings, signs, signals, pictures and sounds for the purpose of executing said scheme or artifice to defraud in Violation of Title 18, United States Code, Section 1343.

According to charging documents, the accused were alleged to have done the following: 1) obtain personal identifying information (PII) of others from the Department of State, Passport Administration; 2) transmit the stolen PII to and from each other, 3) use the stolen PII to create counterfeit identification documents, 4) recruit accomplices to assume the stolen identities and use the counterfeit documents to obtain commercial lines of credit and to purchase iPhones, iPads, and other electronic merchandise, 5) cause commercial entities to transmit the stolen PII to assist in the establishment of commercial lines of credit.

An AP report citing authorities identifies McClendon as the contract employee for the State Department passport office.  A quick social media search indicates that the accused is a Senior Customer Service Tech for a federal contractor.

Initial appearance hearing for Chloe Alyse McClendon and Domonique Rashad Thomas was set for today, 5/7/2015 at 02:00 PM before Magistrate Judge Frances H. Stacy.  Prosecutors told the AP that Alicia Myles remains a fugitive but Click2Houston reports that all three appeared before the judge on Thursday afternoon and were released on bond. Clip below from click2houston.com:

Click here if you are unable to view the embedded video.

The case is  USA v. McClendon et. al. criminal case #: 4:15-cr-00233-1.

This looks related to our recent post: Bringing Cellphones to Work Ends For Federal Employees in 22 Domestic Passport Offices.

In related news, the Passport Office will reportedly start banning cell phone usage for PPT in SA-17.  We’re told that the apparent hold up is due to storage facilities for cellphones outside the  workspace.  Our source says he/she  can’t see how they will let the rest of SA-17 bring cell phones in, since they look at the same PII information, like  passsport applications. Keep us posted.

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Colombia Health Ministry Calls For Suspension of Aerial Herbicide Fumigation, Defense Ministry Pushes Back

Posted: 12:40 pm PDT

 

We did a few posts on the aerial fumigation in Colombia last month.  See: State/INL: Anti-Drug Aerial Eradication in Colombia and the Cancer-Linked Herbicide, What Now?;  So, who wants to drink up or be in target area for next aerial fumigation in Colombia?Colombia Counternarcotics Program Costs Over $8 Billion the Last 11 Years, Where’s the Audit Trail?

Last week, the Colombia Health Ministry recommended that the aerial fumigation in the country be suspended. The Colombian Defense Ministry was quick to pushed back.

This is the same week when Deputy Secretary of State Antony Blinken was in Colombia for the U.S.-Colombia High-Level Partnership Dialogue and the Steering Committee for the U.S.-Colombia Action Plan on Racial and Ethnic Equality, and joined the High-Level Strategic Security Dialogue.

 

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Below is an excerpt from WOLA’s Adam IsacsonSenior Associate for Regional Security Policy:  Even if Glyphosate Were Safe, Fumigation in Colombia Would Be a Bad Policy. Here’s Why.

Colombia is the only coca-growing country that allows aerial herbicide fumigation. Faced with the possibility that it may be aerially spraying carcinogens over its own citizens, Colombia’s Health Ministry issued a statement late Monday recommending that the aerial fumigation program be suspended.

Whether to suspend the program is up to Colombian President Juan Manuel Santos, who has yet to make or schedule an announcement. Meanwhile, Colombian government agencies that carry out the fumigation program have been quick to push back. “We cannot permit losing the benefits [of spraying] on delinquency, crime and terrorism,” said Defense Minister Juan Carlos Pinzón, who oversees Colombia’s National Police and its counternarcotics division, which performs the spraying. “We will continue using all our tools that help maintain security for Colombians.”

U.S. government officials say that while they will respect Colombia’s sovereign decision, they insist that glyphosate is safe and that they’d rather not see the spray program end. The State Department’s International Narcotics and Law Enforcement bureau has spent somewhere between US$1 billion and US$2 billion on herbicides, contractor pilots and mechanics, police escort helicopters, fuel, search-and-rescue teams, and related fumigation costs since the program began in 1994.
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The lesson of Colombia’s fumigation program is that there is no substitute for economic development and government presence in national territory. The opposite—flying anonymously above without any presence on the ground—causes the coca trade to migrate and alienates populations whose support is necessary amid an armed conflict. When not coordinated with food security and alternative livelihoods, fumigation also gives guerrillas a powerful propaganda tool: the FARC and ELN have heavily employed the argument that the spraying is proof that Colombia’s “oligarchy” either doesn’t care about peasants, or wants to use the spraying to dispossess them of their lands.

Read in full here.

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The Great Firewall of State Bites, State/IRM Now Considers Diplopundit “Suspicious.” Humph!

Posted: 11:43 am EDT

 

The cornerstone of the 21st century statecraft policy agenda is Internet freedom. The policy contains three fundamental elements: the human rights of free speech, press, and assembly in cyberspace; open markets for digital goods and services to foster innovation, investment, and economic opportunity; and the freedom to connect—promoting access to connection technologies around the world. A third of the world’s population, even if they have access, live under governments that block content, censor speech, conduct invasive mass surveillance and curb the potential of the Internet as an engine of free speech and commerce.

— 21st Century Statecraft
U.S. Department of State

 

We’ve made references in this blog about the Great Firewall of State, most recently, when we blogged about the FS promotion stats on race and gender (see 2014 Foreign Service Promotion Results By Gender & Race Still Behind the Great Firewall of State),  What we did not realize is that there is an entire operation at the State Department running the firewall operations from Annex SA-9.  It is run by the Firewall Branch of the Bureau of Information Resource Management, Operations,  Office of Enterprise Network Management, Perimeter Security Division (IRM/OPS/ENM/PSD/FWB).

Sometime this week, some folks apparently were no longer able to access this blog from the State Department’s OpenNet.  OpenNet is the Sensitive but Unclassified (SBU) network in the Department. It provides access to standard desktop applications, such as word processing, e-mail, and Internet browsing, and supports a battery of custom Department software solutions and database management systems.

At this time, we believe that the block is not agency-wide and appears to affect only certain bureaus.  Not sure how that works. We understand that some employees have submitted “unblock requests” to the State Department’s Firewall Operations Branch and were reportedly told that http://www.diplopundit.com/ has been categorized as “Suspicious.”

via giphy.com

Holy moly macaroni!

We don’t know what constitute “suspicious” but apparently, under State’s Internet policy, this gives the agency the right to block State Department readers from connecting to this blog and reading its content.

But … but … this is the blog’s 8th year of operation and State has now just decreed that this blog is “suspicious”? Just for the record, this blog is hosted by WordPress, and supported by the wonderful people of Automattic. Apparently, the State Department’s DipNote also uses WordPress. Well, now that’s a tad awkward, hey?

Unless …

Was it something we wrote? Was it about the journalists who ran out of undies? NSFW? Nah, that couldn’t be it.   Was it about the petty little beaver? Um, seriously? Maybe that nugget about the aerial eradication in Colombia was upsetting? Pardon me, it’s not like we’re asking folks to drink the herbicide. Come again? You have no expectation of privacy when using the OpenNet? Well, can you blink three times when we hit the right note?

What should we call our State Department that’s quick to criticize foreign governments for blocking internet content for their nationals then turns around and blocks internet content for its employees?

Wass that?  The right hand does not know what the left hand is doing? Blink. Blink. Blink.

We sent a couple emails to the IRM shop — cio@state.gov and Dr. Glen H. Johnson, the senior official in charge of IRM ops asking what’s going on.  It seems the emails were chewed to bits, and we haven’t heard anything back.  Looking for Vanguard contractors to blame? Blink.Blink.Blink.  We’ll update if we hear anything more.

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State Dept Awards $2.8M “High Availability and Disaster Recovery Services” IT Contract to VMware

Posted: 12:53 am EDT

 

On March 31, 2015, the State Department awarded a $2.8 million “High Availability and Disaster Recovery Services” contract to VMware.  The contract awarded on behalf of the Bureau of Information Resource Management, Operations, Systems Integration Office, Enterprise Server Operations Center or IRM/OPS/SIO/ESOC is for 12 months, and appears to be a modification of a prior task order.  The J&A document posted online justifying “other than full competition” indicates “only one source capable” in handwritten notation. “Persistent security concerns,” “changing strategic landscape” and  “heightened vulnerability” all appear in the limited source justification for the award.  VMware is located in Palo Alto, CA and Reston, VA.

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Dear USAID OIG — That Nonprofit Contractor Mess Really Needs a Fact Sheet

Posted: 1:23  am EDT

 

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We’ve used the USAID OIG website but it does not have a smart nor responsive search function. We wanted to know how many inspections, audits, whatev reports the Office of the Inspector General at USAID did on IRD over the years.  If they were rigorous in their oversight and USAID and  the State Department did not do anything about it, that is an important component to this story.  And if that is true, we wanted to see just how rigorous based on the reports the oversight office put out through the years, because how else can we tell but by the number and quality of their output?

We sent a direct message to USAID OIG via Twitter and we got a response back:

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For specific inquiries, please contact our office directly http://oig.usaid.gov/content/contact-usaid-oig

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You click on that link and you’re told that “for media or general information inquiries, contact the OIG’s Immediate Office by mail, telephone, or fax. Whoa!  The Immediate Office, apparently, is not immediate enough.

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Late last year, following a Washington Post report on a USAID program in Pakistan, USAID OIG released (pdf) a statement with the following:

OIG is committed to providing products and information that are responsive to the needs of external customers and stakeholders. In responding to questions posed by Members of Congress and congressional staff, OIG has always endeavored to provide complete and accurate information based on the documentation and information available to us.

This is USAID’s largest nonprofit contractor.  According to WaPo, USAID suspended IRD this past January from receiving any more federal work. The suspension came in the wake of allegations of misspending highlighted in a Post investigation in May 2014.  USAID told the Post that they are cracking down on contractors who misspend tax money.

Hookay. So let’s start with finding out what type of oversight USAID OIG provided on IRD contracts since 2006. This is one time when those USAID OIG Fact Sheets would really be helpful.

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Related items:

USAID Suspends Big Contractor IRD: What Took So Long? (NonProfit Quarterly)

Doing well by doing good: The high price of working in war zones (WaPo, May 2014)

 

Munns v. Kerry: Court Dismisses Suit Challenging Policies on Private Security Contractors in Iraq

Posted: 12:30 am EDT

 

WaPo covered the ambushed and abduction of  four Americans and an Austrian employed by Crescent Security Group, a small private security firm in Iraq in July 2007.  In March 2008, U.S. authorities were reported to be in possession of five severed fingers, four of which belong to private security contractors.  In May 2008, the FBI identified the remains of the kidnapped contractors. This case was originally filed on March 22, 2010, Munns et al v. Clinton et al; case number 2:2010cv00681.

Via Opinion from the Court of Appeals for the Ninth Circuit, filed on Mar 20, 2015 (pdf):

Summary:

The panel affirmed the district court’s dismissal of the plaintiffs’ equitable claims due to lack of standing and their federal benefits claims due to lack of jurisdiction, and vacated the district court’s dismissal of the due process and takings claims for withheld back pay and insurance proceeds in an action brought against United States government officials by family members and a coworker of three Americans who were kidnapped and killed while providing contract security services during the United States military occupation of Iraq.

Opinion:

This case arises from the kidnappings and brutal killings of three Americans who were providing contract security services during the United States military occupation of Iraq. The plaintiffs, who include family members and a former coworker of these three men, brought suit against United States government officials to challenge policies governing the supervision of private contractors and the response to kidnappings of American citizens in Iraq (“policy claims”). They also claim the government is withholding back pay, life insurance proceeds and government benefits owed to the families of the deceased contractors (“monetary claims”).

The district court dismissed the policy claims for lack of standing and for presenting nonjusticiable political questions. It dismissed the monetary claims for failure to establish a waiver of the government’s sovereign immunity from suits for damages and for failure to state a claim for which relief could be granted. We hold that the plaintiffs have not shown they are likely to be harmed in the future by the challenged policies. They therefore lack standing to seek prospective declaratory and injunctive relief regarding those policies. We further hold that the plaintiffs have failed to allege a governmental waiver of sovereign immunity that would confer jurisdiction in the district court over their monetary claims. Finally, we hold that the United States Court of Federal Claims has jurisdiction over the plaintiffs’ claims for withheld back pay and insurance proceeds, and we direct the district court to transfer those claims under 28 U.S.C. § 1631. We thus affirm in part and vacate in part and remand.

Background:

In November 2006, while working for Crescent, contractors Munns, Young and Cote were assigned to guard a 46-truck convoy traveling from Kuwait to southern Iraq. The plaintiffs allege that on the day of the convoy, Crescent issued the men substandard military equipment and ordered other security team members not to accompany them on the convoy, and that Iraqi security team members slated to join the convoy failed to show up for work, leaving only seven contractors to guard the convoy. When the convoy stopped at an Iraqi police checkpoint, 10 armed men approached and, along with the Iraqi police, took five of the contractors captive, including Munns, Young and Cote. The men were held for over a year, until their kidnappers brutally executed them sometime in 2008.

The plaintiffs trace the contractors’ kidnappings and murders to Crescent’s failure to adequately prepare and supervise its personnel in Iraq. They allege Crescent’s deficient conduct was “officially sanctioned” by the Secretary of State through an unlawful order issued by the Coalition Provisional Authority (CPA) overseeing the U.S. occupation. CPA Order 17 allegedly gave “blanket immunity [to contractors] from all prosecution,” granting them a “license to kill” with impunity and permitting contractors to “circumvent the authority of Congress, the Courts, and the Constitution.”2 Additionally, the plaintiffs say they heard rumors that CPA Order 17, and the consequent lawless behavior of some security contractors, may have been the motivation behind the kidnappings.

Circuit Judge Reinhardt:

The more troubling and painful question is what the role of our government should be if and when terrorist groups like ISIS or Al Queda capture an American citizen and hold him hostage, and whether the government may, or should, impose any limitation on the rights of the citizen’s family or friends to communicate with that group or pay a ransom. It is significant that the government has told this court that currently there are no policies preventing private individuals from making efforts to secure the release of relatives who are held captive abroad. More important however from the standpoint of the legal rules that govern us, the parties bringing the action – relatives of contractors’ employees “brutally killed,” as Judge Fisher puts it, in the Middle East – seek no damages resulting from that policy but simply seek to have the policy declared unlawful. They ask that the government be enjoined from implementing the policy in the future. Again, even assuming that contrary to what the government tells us, such a policy exists, we cannot under well established legal rules render a decision that will be of no immediate benefit to the individuals bringing the lawsuit. Because the plaintiffs have no relatives currently in the Middle East, or currently in greater danger from terrorist groups than any of the rest of us, we again face only a hypothetical question – the kind that courts do not answer

Read in full online here or download the opinion in pdf file here.

 

Related item:

7 FAM 1820 Hostage Taking and Kidnapping (pdf)

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