In This Issue
In the words of Dylan, “The times, they are a changin’.” The nation has a new President, the State legislature is in session, and we have a new Chancellor. Those of us who have had the pleasure of working with Dr. Francisco Cigarroa know that he will provide extraordinary leadership as The University of Texas System navigates a challenging future. We at OGC are excited to have the opportunity to assist him.
Among other things, many of us are buried in analyses of some of the thousands of bills being floated through the capitol that could have an impact, from small to significant, on the System and its institutions. This undertaking is an important, albeit tedious, effort that will enable us to provide information to lawmakers to inform them of the potential impact so that this can be taken into account before final action is taken. It also enables us to be prepared for any of the legislation that finally makes it into law. Future issues of the Foreseeable Future and the OGC website will summarize relevant new laws and provide guidance on their implementation and, as always, we will work with the Office of Governmental Relations to produce a comprehensive session review, survey, and implementation guide.
Thanks to all who participated in the recent OGC Legal Conference. Reports indicate that it was once again well received. I continue to believe that this conference provides an excellent opportunity for uniform training on important topics across the System, but perhaps just a much, it is an opportunity for colleagues to get together, share experiences, and build relationships that will facilitate future work.
In the coming year, I expect conflicts of interest to continue to be a matter of central focus for OGC and the System. Indeed, compliance matters, in general, will persist in getting a high level of attention from state and federal governments and from the media. We need to attend to those issues as well, and I ask that each of you make these topics high priorities on your agendas.
In this issue we cover a diverse set of important topics for your attention: changes in the Perkins Loan Program; enhanced IP protections and penalties; a new law on missing student procedures; new risk management requirements; and the rules for dealing with guns on campus. Finally, Walter Mosher shares his fascinating experiences as a JAG officer in Honduras, Iraq, and Colombia.
Best wishes to all for a wonderful 2009.
Please join me in welcoming these new attorneys to OGC:
by Hannah Huckaby (Claims and Bankruptcy)
On August 14, 2008, the president signed into law the Higher Education Opportunity Act (also known as H.R. 4137 and Public Law 110-315). Among its many provisions are important changes to the Perkins Loan program:
(1) The Perkins Loan program is reauthorized through 2015.
(2) The maximum Federal Capital Contribution for Perkins Loans is increased from $250 million to $300 million. That is, of course, subject to the funds being appropriated.
(3) The law prohibits the U.S. Department of Education (“DoE”) from requiring the assignment of defaulted Perkins Loans to the DoE, except in cases where schools have knowingly failed to maintain collection records or decided not to service the loan. The fact that a Perkins Loan has long been in default does not equate to a lack of due diligence by the school in its collection efforts and is not grounds for mandatory assignment of the loan.
(4) The allowance for books and supplies is increased from $450 to $600.
(5) The annual loan limits are increased from $4,000 to $5,500 for undergraduate students and from $6,000 to $8,000 for graduate and professional students. The aggregate loan limits are increased from $20,000 to $27,500 for undergraduate students who have completed two years of study and from $40,000 to $60,000 for graduate and professional students. For any other students, loan limits are increased from $8,000 to $11,000.
(6) Forbearance requests no longer must be in writing. A borrower’s verbal request can be processed, but the school must confirm the terms of the forbearance by notice to the borrower and recording the terms in the borrower’s file.
(7) The number of consecutive, on-time, monthly payments required for the rehabilitation of a defaulted Perkins Loan is changed from 12 to 9.
(8) The public service occupations for which Perkins Loans may be cancelled are expanded to include a full-time firefighter for local, state, or federal fire department or district; full-time staff member in a pre-kindergarten or child care program licensed or regulated by the state; full-time faculty member at a tribal college or university; librarian with a master's degree in library science employed in a school served under Title I of the Elementary and Secondary Education Act or in a public library serving a Title I school; full-time speech language pathologist with a master's degree working exclusively in Title I schools.
(9) The DoE must return Perkins Loan funds collected from voluntarily assigned loans to the school that assigned them every six months, less collection costs of up to 30%.
(10) Schools are permitted to transfer up to 25% of funds allotted to its Work-Study program to its Perkins Loan program.
For additional information, see the Higher Education Opportunity Act at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_publi...
The Bottom Line: Many changes were made to the Perkins Loan program by the Higher Education Opportunity Act, including the ones listed above.
If you have any questions about the Perkins Loan program, please contact Hannah D. Huckaby by email or at (512) 499-4462.
by Steve Rosen (Business Law, IP Practice Group)
On October 13, 2008, President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act (the “PRO-IP Act”) (H.R. 4279). The PRO-IP Act is intended to bolster the federal government’s efforts to combat counterfeit, piracy and infringement activities both domestically and abroad, including the creation of a new Cabinet-level “IP Czar.” The other major components to the PRO-IP Act include: 1) enhanced civil and criminal penalties for copyright and trademark infringement claims, 2) expanded prohibitions on exporting counterfeit goods, and 3) increased funding for Department of Justice programs for policing IP theft crimes.
The New IP Czar
The PRO-IP Act creates a new Cabinet-level “IP Czar,” the Intellectual Property Enforcement Coordinator (“IPEC”), to be appointed by the President. Charged with coordinating the IP enforcement efforts among various federal departments, the IPEC will chair an Intellectual Property Enforcement Advisory Committee comprised of representatives of the United States Patent and Trademark Office, the United States Copyright Office, the Department of Homeland Security, the Department of Justice, the Department of State, the Food and Drug Administration, and several other federal agencies. The IPEC will be responsible for developing and implementing the federal government’s “Joint Strategic Plan,” the first of which is to be issued within one year, with subsequent plans to be prepared every three years.
The goals of the Joint Strategic Plan will be to:
Even with a new IPEC, however, the current authority of federal agencies that investigate and prosecute IP theft crimes and enforce international trade laws will remain unchanged.
Expanded Civil and Criminal Remedies
The PRO-IP Act contains several provisions that are designed to act as a greater deterrent to counterfeiting and piracy. The Act contains robust protections for rightsholders, and provides the government with additional power and resources to combat counterfeiting and piracy. Many of the vigorous protections once available only for trademark violations are now expanded to cover copyright violations as well. Further, the federal asset forfeiture provisions (21 U.S.C. § 853) will now apply in criminal proceedings.
The expanded civil remedies include :
The expanded criminal remedies include:
Increase in Funding for Law Enforcement
The third major component of the PRO-IP Act provides increased resources and funding to the Department of Justice to implement and carry out programs to enforce and prosecute IP theft crimes. The Act establishes a program for the DOJ to issue grants totaling $25 million annually to state and local law enforcement agencies and public interest educational groups for training and enforcement. The Act also provides an additional $10 million to the DOJ and FBI to increase staffing and train personnel to focus enforcement efforts on counterfeiting and IP theft crimes.
The Bottom Line: The PRO-IP Act substantially increases the civil and criminal remedies for illegal downloading of music and movies. Of equal concern to University officials is the expanded asset forfeiture provisions. Because the PRO-IP Act provides for the forfeiture of network equipment and other resources used in counterfeiting and piracy, university officials should remain vigilant in monitoring the use of University equipment, remote servers, networks, and resources to avoid any potential liability.
If you have any questions regarding this article, please contact Steve Rosen by email or at (512) 499-4337.
by Barbara Holthaus (General Law)
Does your University have a policy on dealing with missing students? Do you know what it requires? If you aren’t sure, now would be a good time to check. Section 485(j), Missing Person Procedures, of the Higher Education Opportunity Act - 2008 requires all institution of higher education that participate in any Title IV program (such as Federal Perkins Loans and the Federal Family Education Loan Program and the William D. Ford Federal Direct Loan Program) and provide on-campus housing to students to establish both a Missing Student Notification Policy and Official Notification Procedures for handling missing student reports that apply to students who live in on-campus housing.
The statute took effect on August 14, 2008, and is subject to negotiated rule making. Hopefully, the resulting rules and/or a promised, but as yet not published, “ Dear Colleague Letter ” will provide more guidance on how these policies and procedures should work. The rules are not expected out until sometime next spring. Until then, given the August 2008 compliance date, institutions are expected to use their best efforts to comply with the plain wording of the statute.
The Missing Person Notification Policy (“Policy”) must notify all students who reside in on-campus housing that they have the option to designate another individual as a contact who will be contacted by the institution no later than 24 hours after the student is determined to be missing and how to register confidential contact information about the designated contact. The Policy must also advise all unemancipated students under 18 who reside on campus that, in the event that they are determined to be missing, the student’s custodial parent or guardian must be notified within 24 hours. Finally, it must notify students of any age who reside on campus that if they are determined to be missing for more than 24 hours, the institution must initiate emergency contact procedures described in its Official Notification Procedures and notify the appropriate law enforcement agency.
The Official Notification Procedures must include a process for official notification to “appropriate individuals” at the institution when a student who lives on campus has been missing for more than 24 hours. This missing person report must be provided immediately to the institution’s police or campus security department, which must investigate the report. If the investigating department subsequently determines that the student has been missing for more than 24 hours, the department must contact the student’s designated contact, if there is one; or, if the student is under 18 years old and unemancipated, the student’s parent or guardian. If the student has not designated a contact and/or is not an unemancipated minor under the age of 18, the department must notify the appropriate law enforcement agency.
The statute leaves it to the institution to determine the event(s) that trigger a report that a student is missing and to whom or how the report is to be made. It also clarifies that the statute does not provide a private right of action against an institution to enforce its requirements or create a cause of action against an institution or its employees for civil liability.
Taken together, the Policy and Official Notification Procedures appear to be designed to permit the institution, in cases where the student has elected to designate a confidential contact, to go to the designated contact, or in the case of the unemancipated minor, the student’s parent or guardian, first to see if they are aware of the student’s whereabouts. If the student cannot be located through the contact and/or parent or guardian, the institution must then notify the appropriate law enforcement authorities.
However, since there may be circumstances where the institution may determine that law enforcement authorities should be contacted immediately without going through the Official Notification Procedure, the Policy should clarify that, depending on the circumstance, if a student goes missing, the institution may elect to go directly to the law enforcement authority without first attempting to contact the designated contact and/or, in the case of an unemancipated minor, the parent or guardian. Even in such cases, the statute appears to require the institution to also comply with the Official Notification Process as well.
There is an exception under FERPA for health and safety emergencies that would allow the institution to notify the contact about the missing person report generated about the missing student. But institutions are advised to include a FERPA waiver that authorizes the institution to disclose information from the student’s education record (such as the missing person report pertaining to the student) to the contact as part of the confidential contact registration process. The information provided by a student to register a contact person would also constitute an education record of the registering student and thus is subject to FERPA.
Institutions that have MOUs in place with local law enforcement to act as campus police or provide campus security should ensure that the MOUs are amended to reflect the Official Notification Procedure.
The Bottom Line: If your institution participates in any Title IV student loan programs and provides on campus housing, it needs to adopt a missing student policy and notification procedures that comply with the Section 485(j), Missing Person Procedures, of the Higher Education Opportunity Act (“the Act”). If it already has a policy in place, it must include provisions that comply with the Act. Hopefully, the Department of Education will issue guidance or rules concerning these requirements. Until then, each institution should use its best efforts to comply with this provision of the Act.
If you have any questions regarding this article, please contact Barbara Holthaus by email or at (512) 499-4617.
by Jim Phillips (Business Law)
The Higher Education Opportunity Act (HEOA) was signed into law on August 14, 2008 and many of the provisions were effective on that date. Among the myriad subjects addressed by the more than 1,100 page bill are several dealing with risk management. Two of those deal with emergency response and evacuation policies and fire safety reporting.
Emergency Response and Evacuation Policies
HEOA, in §485(f)(1)(j), requires institutions to have policies regarding immediate emergency response and evacuation procedures to immediately notify the campus community once a significant emergency or dangerous situation is confirmed that involves an “immediate threat to the health and safety of students or staff.” Immediate notification could be delayed only if there is a “professional determination by law enforcement that issuing the notice would put the community at greater risk,” and then the delay should be for as short a time as possible.
For incidents that occur on campus, the procedures must articulate a method to determine promptly if there is an immediate threat to health or safety. The procedures must also include methods to disseminate the emergency notification immediately ( e.g., sirens, public address systems, reverse 911, text alert, and/or posting to the institution website).
Fire Safety Reporting
In §488, institutions participating in federal student financial aid programs that maintain on-campus student housing must publish a fire safety report annually. The report must include information about campus fire safety practices and standards, including:
Statistics for each campus student housing facility, including:
A description of each on-campus student housing facility fire safety system, including sprinkler systems
Number of mandatory supervised fire drills
Policies or rules on portable electrical appliances, smoking and open flames
Procedures for evacuations, policies on fire safety education and training
Plans for future improvements in fire safety
In addition to the annual report, institutions must maintain a log of all on-campus student housing fires, including the nature, date, time and general location of each fire. The annual report and statistics will have to be submitted annually to the Secretary of Education to be made available to the public.
Implications for UT Institutions
These risk management requirements, although newly enacted in HEOA, are not new to UT institutions and their Environmental Health and Safety programs. UT institutions have for some time been upgrading emergency notification and evacuation policies, procedures and infrastructure. The Texas State Auditor has recently conducted reviews of the emergency procedures in place at Texas institutions of higher education and UT institutions have fared well in those reviews. Fire safety on Texas campuses has been a priority of the Texas Legislature for several years and UT institutions have a good working relationship with the State Fire Marshal who is mandated to conduct detailed inspections on our campuses. The Board of Regents has committed millions of dollars over the past several years to enable UT institutions to upgrade infrastructure to meet fire and life safety standards, with an emphasis on, but by no means limited to, on-campus student housing.
The System-wide Fire and Life Safety Advisory Group has been tracking this legislation for quite some time and is fully aware of the requirements. While the reporting mechanism is not yet in place, the UT institutions will be ready when the reporting mechanism is defined.
The Bottom Line: HEOA has added requirements concerning emergency evacuation and notification procedures and fire safety reporting. Because of the significant progress UT institutions have already made in both areas, compliance should not present significant challenges. The Environmental Health and Safety professionals on each campus can be relied on as a resource if compliance questions arise.
If you have any questions regarding this article, please contact Jim Phillips by email or at (512) 499-4474.
by Priscilla Lozano (General Law)
Texas statutes make it a criminal offense to possess a gun
The prohibition against carrying handguns on the premises of certain places and at certain activities related to institutions of higher education extends to those individuals who are licensed to carry a handgun under Texas Government Code , Chapter 11, Subchapter H . Texas Penal Code §46.03(f) .
"Premises" is defined as a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area. Texas Penal Code §§46.03((c)(1) ; 46.035(f)(3) . Accordingly, pursuant to these statutes, it is not illegal for a license holder to carry a handgun on his or her person on any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area of an educational institution. However, if the license holder goes into a campus building the license holder commits a criminal offense. Members of the campus community who observe an individual carrying a handgun in a prohibited place should immediately report the incident to campus police.
State statutes regulating the rights of individual to bear arms have been subject to attack under the Second Amendment to the United States Constitution. This year the United States Supreme Court addressed the issue in The District of Columbia v. Heller , 128 S.Ct. 2783 (2008) . In this case the Court struck down a Washington, D.C. statute that banned handguns and required that firearms in the home be kept nonfunctional even for self defense as violative of the Second Amendment right to keep and bear arms. In doing so it stated that nothing in the opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings…. Heller at 2817. Thus, it is likely that the above-referenced Texas statutes prohibiting handguns on the premises of institutions of higher education would withstand constitutional challenge.
Nevertheless, UT System institutions may not adopt rules to impose disciplinary sanctions on a student who is a concealed handgun license holder from carrying a handgun on his person on any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area of its institution. Although a governing board of a state institution of higher education is given broad authority by the Texas legislature to govern, operate, support, and maintain each of the component institutions that it is charged with governing, the Board is not authorized to promulgate a rule that conflicts with specific statutes promulgated by the legislature. Tex. Atty. Gen. Op. JC-0325 (2001) . Further, a governmental entity, including an institution of higher education, may not use the Texas criminal trespass statute to bar a concealed handgun licensee from entering its property with a handgun because that statute specifically states that the trespass provision does not apply to property owned by a governmental entity. Texas Penal Code , §30.06(e) .
In addition to laws prohibiting guns on campus, the law also makes it a criminal offense to have an illegal knife, a club, an explosive weapon, a firearm silencer, a switchblade knife, knuckles, armor-piercing ammunition, a chemical dispensing device or a zip gun at schools and institutions of higher education. Texas Penal Code §46.03 ; Texas Penal Code 46.05(a) . Members of the campus community who observe an individual in possession of one of these weapons regardless of whether the individual is on a street, sidewalk or walkway, or in a parking lot, parking garage, or other parking area parking lot should immediately report the incident to campus police.
The Bottom Line: Texas criminal law prohibits weapons on the “premises” of institutions of higher education. Individuals who violate these provisions are subject to prosecution under the criminal laws. Employees and students of the institution who violate these laws may be subject to sanctions under university disciplinary codes in addition to criminal sanctions. The criminal laws do not prohibit a concealed handgun licensee from carrying a handgun on his person on any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area of an educational institution. Members of the campus community who observe an individual carrying a handgun or other prohibited weapon should immediately report the incident to campus police.
If you have any questions regarding this article, please contact Priscilla Lozano by email or at (512) 499-4497.
by Walter Mosher (Health Law)
On November 29, 2005, the Monday after Thanksgiving, I deployed to be the military legal advisor (JAG) to Joint Task Force-Bravo at Sato Cano Air Base in Honduras, just north of the capital city of Tegucigalpa. At the time, our country and the University of Texas System were dealing with the aftermath of hurricanes Katrina and Rita. While UT medical schools were executing and operating their disaster relief and medical assistance plans, I looked across our media landscape and saw thousands of U.S. service members responding to their nation’s call for duty both at home and abroad. Whether they were national guardsmen assisting in Texas and Louisiana or reserve and active duty service members performing duty in Kuwait, Afghanistan, and Iraq, it seemed everyone was pulling together to serve our national interest. Performing public service and fulfilling a public duty is and has always been a noble calling. Before joining OGC in 2002, I had served six years as an active duty Army JAG and about six years as a reserve Air Force JAG. While much of my military legal experience was health law related, my military profile and JAG experience also had identified me as a deployment asset, and so I too soon received orders to deploy to Honduras and was placed on military leave at OGC for what I thought would be a short 6-month tour of duty.
Not very long after I arrived at Joint Task Force-Bravo , I noticed that my uniform was “out of date”. My green camouflage Battle Dress Uniform had served me well through the years, but when I looked at my colleagues sitting around conference table during the morning Battle Update Brief (BUB) with the JTF-Bravo Commander, I noticed that nearly every officer wore evidence of their experience in the “desert”, the "sand box" ─as the Middle East was commonly referred to. The commanders brief included weekly personnel data, such as all departures and new arrivals to the command, and it seemed as if everyone was either going to Iraq (many for their second deployments) or returning from there. JTF-Bravo was a small joint service command with Army, Air Force, and Navy personnel (about 1000) assigned to a Honduran owned air base. The command’s mission was to enhance the regional cooperative security initiatives and support democratic development in Honduras and neighboring countries, which often included humanitarian, medical, and disaster relief missions. In addition to advising the JTF-Bravo Commander on disciplinary and military justice matters, my role included advising unit commanders on operational and international legal issues arising in their training and support missions. Legal issues typically involved property damage claims occurring during military exercises, review of base construction contracts and equipment rental agreements, fiscal law analysis for the lawful use of appropriated funds, rules of engagement that comply with human rights and local treaties, and, of course, your bread-and-butter Uniformed Code of Military Justice (UCMJ) misconduct from sexual assaults between service members to criminal acts committed by military service members in the host country. In short, JTF-Bravo was known to be a great operational training site for future commanders deploying to combat zones, and after a few months, I was also contacted by the Air Force deployment command to discuss orders to Iraq.
My Iraq assignment was classified as a generic “International and Operations Law” slot in the Office of the Staff Judge Advocate for the Multi-National Force −Iraq (MNF-I) , located at Camp Victory . The office was the legal staff for the Commanding General of the war in Iraq, General George Casey at the time, and I would be working for Colonel Mark Martins , the senior military legal advisor to General Casey. Colonel Martin was a former Army JAG School instructor of mine who was legendary in military legal circles for his intelligence, energy, and leadership abilities. He was a former infantry officer, Rhodes Scholar, and graduate at the top of his class at Harvard Law School. He stood about 6’3” and worked what seemed like endless hours at full capacity, and this was his second deployment to Iraq. Younger JAGs would often try to keep pace with the Colonel only to discover that they don't possess the requisite genetic mutation. In an odd way, I looked forward to serving under Colonel Martin's leadership and supervision though I knew it would require tremendous sacrifice, tenacity, discipline, and faith on my part to complete my tour of duty and return home alive.
Every day would start with morning Battle Update Brief at 0700 hours and the shift ended sometime after 2200 hours, seven days a week, except for the occasional half-day off to do laundry, etc., if you were caught up on your work load. I had regularly scheduled meetings with my two-star general on Wednesdays and Saturdays and would often forego my time off to prepare for meeting with him in hopes of avoiding what at times felt like having my body pierced with the corners of his stars during those meetings. I later learned that this was his management style, but that didn’t make it any easier to brief him and demonstrating rapid progress on taskings and issue resolution was the best remedy I could find. At times it seemed like all I did was prepare status reports and push each assignment daily, whether handling it personally or through emails with the general in the cc line, I was driven to close each assignment as fast as possible but always needed his permission to drop it from my status report. My assignments also frequently involved travel throughout Iraq to assist inspection of detention facilities, treatment of detainees, and supporting humanitarian and medical assistance efforts to detainees.
On December 14th, 2006, at approximately 1400 hours, I was given an order by the Camp Cropper detention officer to enter a make shift conference room where Saddam Hussein was awaiting us alone waiting for his meeting with the International Committee of the Red Cross (ICRC) . With a couple of steps, I was soon standing ten feet in front of Saddam, and I was the only military official, American, and lawyer in the room, with 10-12 guards immediately outside the iron door. He wore a black suit, white collar shirt, and had red eyes from his thick cigar smoke surrounding him. Saddam had just finished meeting with his defense counsel and it was my turn to get the meeting under way. At this point in my deployment, I had coordinated and escorted ICRC delegates at least a dozen times to inspections of various U.S. detention facilities and detainee interviews throughout Iraq so the MNF-I Commander could report to the Department of Defense, Department of State, Congress, and the President on the status of human rights compliance for U.S. detention operations in Iraq. My role was to review, brief, and advise the Deputy Commander, and ensure the implementation of all ICRC recommendations as directed –a challenging task considering MNF-I was managing over 15,000 detainees located throughout Iraq at the time. To complicate matters, the command was still recovering from the fallout of the Abu Ghraib detention facility , which we had finally turned over to the Government of Iraq for operation and management and, thereby, closed an important chapter in U.S. relations with the "international community". What brought me face-to-face with Saddam that day was a mission to address the legal support issues involved in his appeal efforts with the assistance of the ICRC. During my visits to Saddam, I never spoke directly to him, and always sought to avoid having my name end up as an "issues" entry in my status reports to the general. Saddam was a US detainee since his capture on December 13, 2003 and I knew his days were running short. My deployment to the desert was filled with many high-octane days, but the days after my visit with Saddam were pure adrenaline as we prepared to execute a contingency plan to turn Saddam over to the Government of Iraq to execute his death sentence should his last appeal efforts fail.
Despite our high op-tempo, we did the best we could to enjoy Christmas day. We paired up and rotated in small groups to the Camp Victory dining facilities where they had served a spectacular Christmas dinner all day to the troops. I recall hearing rockets just outside the base that day too.
On December 26th, the Iraqi appellate court upheld Sadam death sentence and within hours Secretary of State Condoleezza Rice, the White House, and then President Bush made official statements that Saddam had a "fair trial", which was our green light to release him into Iraqi custody. On December 30, 2006, after being convicted by the Iraqi High Tribunal for crimes against humanity in a case involving the murder of 148 Iraqi Shiites, the Government of Iraq hung Saddam Hussein. Many of the final details were fairly captured in the New York Times on January 7, 2007 .
Yet, even while the dust was still settling from the Saddam's controversial execution, the legal office had to turn its attention to the arrival of the new MNF-I Commanding General, General David Petraeus on January 26, 2007. Colonel Martins and General Petreaus were friends with Colonel Martins previously serving as General Petraeus’s senior military legal advisor during his first deployment in Iraq. General Petraeus was an intellectual military strategist who stood over six feet tall with distinguished graduate studies in international affairs from Princeton and Georgetown University. When President Bush had nominated General Petraeus, and his confirmation looked certain, the office worked up special plans and projects that he requested to have ready for signature on his first day as commander. In addition to his “surge” of forces plan, General Petraeus also wanted the creation of a new Law and Order Task Force that would shore up Iraq’s judicial system and case processing against war criminals and security detainees. The task force would operate in a secure and contained compound in northern Baghdad where investigators, prosecutors, and judges would conduct investigations and trials in a working and living environment that had limited external risk to their independence and safety. After General Petraeus signed the order creating the task force, it became operational in about 60 days, which included a legal staff of over 100 civilian and military legal officers and support staff.
I was only one of hundreds of JAGs deployed to Iraq. In addition to all the military lawyers assigned to unit commanders engaged in support and combat operations, the Iraqi judicial system had several large coalition legal offices supporting its various judicial functions, which included the U.S. Embassy's Regime Crimes Liaison Office that directly managed Saddam's trial and appellate work. Yet, in some form or another, we were all involved in a rapidly growing international legal practice known as rule of law, which involves democratic and judicial reform implementation and stabilization. Implementing rule of law programs is the next phase of governmental re-organization following securing and controlling combat operations in developing countries. As a result of the National Security Strategy 2002 Report , a comprehensive diplomatic and defense strategic plan following the September 11, 2001 terrorist attack at the World Trade Center, U.S. foreign policy now promotes working with other countries to effectively implement rule of law programs, which involve using available local resources and U.S. funding to design tailored activities to improve constitutional guarantees of human rights and judicial principles of fairness and equal treatment before the law. Typical program activities include training investigators and prosecutors on developing an evidence based case, supporting a defense bar and related training, educating judges on reviewing cases with appropriate rules of evidence, constructing open and public court houses, regularly re-evaluating judicial systems to improve case processing and fair adjudication, encouraging policy changes to implement inter-agency coordination on jurisdiction and case support mechanisms, and advising on legislative initiatives that fostered procedural and substantive judicial guarantees. And many deployed JAGs in Iraq were technical military legal advisors on reform proposals and were often tasked with initiating or managing these programs; from locating funds and resources, through obtaining leadership approval, to ensuring programs were operational, effective, and met mission requirements.
In many countries with weak or emerging democratic forms of government, laws are often not applied fairly, judicial independence can be compromised, and institutions may not have the capacity to properly investigate and process existing criminal cases. Additionally, without legal mechanisms to protect the rule of law, the executive and legislative branches of government can operate without checks and balances, elections may not be free and fair, and "civil society cannot flourish" –as the career diplomats like to say. In short, weak legal institutions impede democratic reform and economic development in developing countries and, therefore, rule of law programs seek to facilitate systemic and institutional change in governmental operations toward democratic and economic prosperity.
In practice, rule of law programs are an integral part of US foreign policy involving four key federal agencies: the Department of State (DoS), Department of Defense (DoD), Department of Justice (DoJ), and the U.S. Agency for International Development (USAID), among other supporting agencies and organizations. U.S. Embassies abroad are typically composed of a local "country team"; a team that is comprised of the senior representatives from these agencies assigned to the embassy that enables the Ambassador to conduct a daily huddle to address new local political issues, to review democratic reform and economic development efforts, and to assign support taskings to these agencies. Each of these agencies maintains an appropriated budget to operate specific regional reform programs that relate to security, effective judicial processes, human rights compliance, and economic development. The Department of Justice primarily provides training and reform assistance to criminal investigators, prosecutors, and judges. USAID focuses on economic development, human rights, victim advocacy, defense bar training, courthouse construction, among other socio-economic programs. The Department of Defense maintains military-to-military communications and support, including military justice and human rights reform.
On April 26, 2007, just two weeks after I returned from Baghdad, I was deployed again to Colombia and assigned to the U.S. Embassy as the military legal advisor. It was a deployment that I had agreed to considering my heart felt need to return to Latin America after my tour in the sand box. As my primary duty, I worked in the Colombian Ministry of Defense where I assisted their senior leadership on military justice and human rights reform. For over 40 years, Colombia has fought an internal armed conflict with the Revolutionary Armed Forces of Colombia (FARC) , an officially recognized terrorist organization that operated out of the jungles and often hid within the civilian population for military advantage. The FARC was also known to have held more than 12000 political, military, and labor hostages for many years. The most famous were Ingrid Betancourt , a former Colombian presidential candidate captured in 2002 while campaigning, and the three American hostages captured following an airplane accident in the jungle in 2003.
But within the past few years, as the Colombian military forces were making tremendous gains in reducing enemy forces (to less than half of its peak troop strength), the Ministry of Defense had received significant criticism from the international community for engaging in extrajudicial executions without holding military officials accountable. These unlawful killings typically involved military or government officials permitting the execution of individuals associated with enemy forces without affording “due process” or other judicial fairness rights prior to execution, as required by international law. As part of the U.S. Embassy’s rule of law efforts in Colombia, the DoS, DoD, DoJ, and USAID offices developed a team approach to co-sponsoring human rights and legal conferences, events, and projects to encourage policy, infrastructure, and institutional changes within the Ministry of Defense. During my year and a half deployment to Colombia, Ambassador Brownfield sought a “full court press” on legal engagement activities to support the Ministry of Defense’s human rights reform efforts so that it could demonstrate progress in addressing the international criticism.
On July 2, 2008, Colombian Government and the Ministry of Defense conducted a spectacular made-for-television undercover operation to rescue hostages under the guise of a generic humanitarian organization seeking to assist the FARC in transporting key hostages. Operation Jaque ("Checkmate") flew two undercover transport helicopters to a designated pick up point and persuaded enemy leaders to hand over and load 15 hostages, including Ingrid Betancourt and the Americans . It was a victory for Colombia and the US since the US Embassy, and military group, had actively sought to support their recover for over 5 years. Several of the other Colombian hostages were captives for over 10 years. Without a single shot being fired, the operation was a tremendous success by all measures. And although media reported that only minor US intelligence support was provided to the Colombian operation, each of the 1000+ service members assigned to the US Embassy Military Group felt a sense of pride, joy, and thankfulness for the rescue, particularly since it occurred just before the Fourth of July celebrations. Since my office in the Ministry of Defense was down the hall from the Commanding General of the Colombian Army, General Mario Montoya , making my way to my desk through the crowd of reporters and supporters was both heartwarming and challenging at times. It seemed that the Ministry of Defense was well on its way to winning the war against the FARC, but in the eyes of the international community the Colombian military still fell short of properly addressing the numerous cases of alleged extrajudicial executions and criticism of impunity and lack of accountability.
In September, despite Operation Jaque's success, the international criticism resurfaced when a criminal investigation opened in northern Colombia involving the Colombian Army’s alleged practice of inflating body counts by shooting innocent civilians and claiming them as insurgents killed in combat. It was the extrajudicial execution issue again. As I began preparing to return home and winding down my duties to hand over to the new JAG, the scandal was being reported daily in the news. On October 7, 2008, I took my re-deployment flight from Bogota to Houston and later, during my first week back to UT System OGC, I received an email with a news link to an announcement that General Montoya had resigned following President Uribe’s firing of 27 officers and three other generals implicated in the incident. The investigation continues on these generals and military officials for potential criminal action by Colombia's federal prosecutors.
What I initially thought would be a six-month leave of absence from OGC, turned out to be three deployments and three years. Despite the extended stay away from home and UT System, these deployments were the most challenging, rewarding, and interesting experiences that I have had as a practicing lawyer and military officer. Practicing law in a military operational environment, particularly in combat zones, leads you to rapidly identify the important legal issues and create the most practical and effective solutions for your client, which was typically the senior commander. These solutions also tended to be in the form of a recommended course of action rather than a legal memorandum, so preparation of documents for signature to execute the decided course of action was equally as important as the recommendation. Providing regular status reports to my clients that demonstrated progress on legal issues, following them through to closing, and developing a strong attorney-client relationship based on earned confidence in my legal judgment, capacity to “get results”, and commitment to their best interest and expectations were my key principles that guided me to success in each of these deployments. And since I guess you could say that they have been tested under fire, I gladly passed these principles along to you with the hopes that they may also assist your professional development efforts, particularly as a public servant in an institutional legal practice.
The views expressed in this article are solely those of the author, Walter G. Mosher, and not of the Department of Defense or any other individual or entity identified, mentioned, or discussed above. The contents are intended solely for general background and educational purposes, and not for any official purposes. The author remains solely responsible for all information herein.
If you have any questions regarding this article, please contact Walter Mosher by email or at (512) 499-4463.
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