Letters of Marque and Reprisal; Privatize the war on ISIS

It appears the President is hesitant. Obama

Elected on the pledge to return our troops home there seems to be mounting evidence they should have stayed.
ISIS
Back when the United States Constitution was first framed, it was not uncommon for a country to grant a license to a privately owned and armed ship to sail out onto the seas and sink, burn or capture as a prize the vessels of an enemy. Navy’s are expensive, and the entire enterprise is risky. Why not shift that risk, with the associated rewards, to some one else?

So at Article I, Section 8, part 11 it is reserved to Congress to:

Declare war, issues letters of marque and reprisal, and make rules concerning captures on land and water;privateer

Sure, Halliburton and Blackwater have given privatizing war a bad name in the present day, but as far back as Francis Drake (d. 1596 ) these men have been considered one piece of paper away from pirates. And that piece of paper made everything all legal. drake

Plenty of prizes await say, Shell Oil, in the region.

The President is hesitant, Congress should act. Let us issue letters of marque and reprisal to tame the beast that has engulfed Mesopotamia.
congress

Dying Declarations Are For Slayers Only

After the funeral people come to see me about probating the Last Will and Testament the family member left behind. The interview sometimes begins like this:
“Dad wanted me to have the farm. He told me so on his death-bed. He said, ‘I want you to have the farm’.”
family farm

I ask for the will and can find no reference to this bequest. Instead the client and all her siblings are listed share and share alike which means they all get an equal portion ownership.

“I am afraid you have a hearsay problem”, I tell the shocked client.

eager person
This “dying declaration” always seems to benefit the client immensely.

There is some room for dying declarations to be admitted in court.

First, the person has to understand they are about to die when the statement is made.

Second, it is only admissible to prove the client is guilty of murder of the decedent.

Third, if proven, the client is not going to inherit in any case because of the rule that says slayers do not inherit. axe murderer

Fourth, I refer this person out to a firm that handles criminal law.

A good example of what might be admitted against the client was John Lennon’s exclamation “I’m Shot!” if offered in the prosecution of Mark Chapman. john lennon

Faced with this and other evidence, Chapman plead guilty to 2nd Degree Murder and is still in prison.

So friends and neighbors let’s go with what is on paper and not a dying declaration. If admitted at all, it might mean you are going to jail.

War Crimes

Something that has always bothered me, as a lawyer, was the authority or law that allowed one nation or group of nations to charge war crimes against the combatants of another? I mean, where is it written down that it is a crime to mistreat your POW’s, or that civilians should not be killed? prisioner of war

It turns out in many places. The Geneva Convention Relative to the Treatment of Prisoners of War, adopted July 27th, 1927, for an example.

But enforcement depends on politics. Take the Japanese treatment of our POW’s during WWII for example. Horrible. Death marches, random executions, poor conditions, little food, little shelter. Those responsible were tried and convicted of several breaches of international law.

How did the Russians treat their captured Germans in the same war? Horrible. Death marches, random executions, poor conditions, little food, little shelter. Those responsible were NOT tried and convicted of several breaches of international law.

Why? Well perhaps it was the 24 million soldiers and citizens that died during the conflict that somehow shifted the moral weight in their favor. More probably it was because the Russians were on the winning side. war crimes

Curtis Lemay, commander of our strategic bomber air forces over Japan late in the war famously said that if America had lost the war he would be tried for war crimes. This is probable. curtis lemay

In 1907 a general protocol referred to as the Hague Convention of the Laws and Customs of War on Land was adopted. Among its provisions bombardment of civilian areas or undefended ports was prohibited by naval forces. Following World War I in an arbitration between Greece and Germany held in 1927, this provision was held to extend to aerial bombardment.

Ten years later the Germans elected to ignore international law for a town called Guernica Spain. guernica

By World War II the bombing of civilian targets was common. To end the war against Japan, we the Americans, dropped two atomic bombs on Hiroshima and Nagasaki, but not before we firebombed the other wooden cities for months, creating firestorms only occasionally seen in the European Theater. Curtis Lemay was the ground officer in charge of the mission.

There were no trials about bombardment of civilian populations following World War II. How could that hypocrisy be heard anywhere?

As a human I know right from wrong. It is wrong to round up a class of persons, say the Jews, and attempt to exterminate them. That is just murder and everyone knows that. You don’t have to go to law school to know this. The War Crimes Tribunals, where they may have lacked authority, asserted this as a crime against humanity, and they were right to do so. nuremberg 2

But there was actually a precedent placing everyone on notice the killing of civilians would be called a crime. The Ottoman Empire had practiced a genocide against the Armenians during the First World War. Several nations later declared this to be a “Crime Against Humanity”.

And this satisfies the lawyer part of me that needs some law, some decision or other authority to point to in order to prosecute and punish these acts. For lawyers anything less is just victors justice.

Night of the Living Trust

What seemed like a good idea at one point often becomes an unwanted “person” that lives on and makes everyone miserable.  Like Zombies, trusts that have outlived their usefulness need to die, but because the residual beneficiaries may not like the idea of a trust being killed off in favor of the person who wrote it to begin with, the Trustor, the resolution of its life moves slowly and infects people with despair. It also infects them with a dislike of lawyers and the entire complex business of dying. Why cant it just be simple? Because it isn’t.

Often the lawyer wrote this thing but they had good reason to; the client came in certain this is what they wanted. Just as often and perhaps more likely they never consulted a lawyer who might have persuaded them that the effort of a living trust is too much. For example usually people forget to put everything they buy into the trust defeating a purpose of avoiding probate.

Most tragically the do it yourself Trustor may forget to make this a revocable trust, meaning the family members obtain a real interest in the property they are residual beneficiaries of when he funds the trust, even before the Trustor dies. This means they all own a piece of the living trust. The remedy is to get everyone to agree to give the property back to the man who made the mistake in the first place.

But lo, there may be a beneficiary out there not willing to let go and hence, we experience the horror of the Zombie Trust.

Be afraid, be very afraid.

Spread My Ashes Somewhere But Dont Forget Me

More often than not people want their remains cremated and ashes spread somewhere rather than be buried in a cemetery. They worry about the money I think, which is unfortunate as they cannot take it with them, and you know, maybe the family needs something more than a body of water to look at to remember the departed.  Usually that body of water is Puget Sound or an alpine lake, but sometimes at some lookout or other special place like the Grand Canyon.

Unfortunately much of this is just a whimsical notion of a family standing around and tipping the urn over and having the remains flow out on a breath of wind dramatically returning the departed to the earth.

Instead what happens is some of the ash floats away, but most of it sort of comes out in a lump. The bone is not always completely incinerated and once it hits the water tends to remain cohesive for far too long.

Then there is the entire question of whether this violates an environmental law somewhere. I have always presumed it does, but have yet to have any agency levy a fine for this sort of spill in Puget Sound. In fact a member of my staff reports advising a Washington State Ferry employee of the intention to distribute the ashes from the boat, and finding the captain stopped the ferry mid-transit to allow for the event.

I wouldn’t count on this to be the norm.

Still I wonder how many people wish they had a headstone to visit when missing the departed. Somehow the Sound is just too public, to ambiguous, and feeds my sense of existentialist crisis.