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First is under the Common Law a soldier COULD sue his commander for any harm he incurred do to the act of his commander (The soldier also had the right to sue his fellow soldiers for any harm he incurred do to their actions). By legislature of Congress that right was WITHDRAWN in exchange for the right Federal Compensation for injuries. Thus a soldier can NOT sue his commander today for any injuries he incurred do to the act of his superior, but can apply for Federal Compensation for his injury.
Now the Rule of Law is any statute in derogation of the Common law (Unless its intent is to rewrite the law as a whole) must be construed by the Court "narrowly". By "Narrowly" the courts mean if you meet the written requirements of the Statute, you come under the statute, but if you do not the common law rule is still the law (The big exception is if the Statute was intended to re-write the law as a whole for Example the Uniform Commercial Code, UCC, was intended to re-write the law as to commercial transactions (Mostly Sales), as such the common law rule as to Contract was re-written in regards to Commercial Transaction. The clearest example of this was how the UCC dealt with the problem of the "Battle of the Forms". A seller would offer an item, a buyer would then offer to buy the item based on terms set forth in the written offer, the buyer would accept the offer by sending the item AND a form setting forth its requirements as to the sale. These two forms, one by buyer and one by seller often contain opposing terms. The question was which was the Contract? Under the common law a Contract would only occur when both sides agree to ALL terms. In many commercial transactions no such agreement could be shown, for both sides tended to send each other forms that required the other to accept it on its face, and rejected all other terms. You did NOT have a Valid Contract for all terms had NOT been Agreed to by both sides (This is still the rule for the sale of Real Property in most states, the Sale of Real Property is outside the UCC). The UCC changed this rule. The UCC says when you have two forms, you look at both forms and whatever terms BOTH forms have is the Contract, all other terms set forth in the forms are viewed as rejected. The courts have Taken the view the UCC is a major re-write of the law affecting Commercial transaction and have REFUSED to interpreted the UCC narrowly, but have also refused to extend the UCC to contract law NOT covered by the UCC (i.e. sale of real property).
I go into the UCC to show what is meant by Narrow Construction of the law, by showing an area of the law where the court have ruled NO Narrow Construction for it is a re-write of an area of the law as a whole. At the same time the fact the UCC does NOT cover the sale of real property shows how narrow construction does apply. If the law on its face does NOT cover that part of the law, the Common Law is still the law. Under the law covering Military personnel, the law was intended to cover Military personnel in regards to actions against their commander AND the US Government. As such the Courts will broadly interpreted such restrictions and require any soldier harmed to ONLY file for Compensation through the VA (i.e NO lawsuits permitted).
The problem is the law ONLY applies to Soldiers AND their relationship with the Government. For example as part of the Agent Orange Scandal, Veterans of Vietnam won lawsuits against the maker of Agent Orange for injuries tied in with the the use of Agent Orange. The Soldiers showed they had been injured and the causation was Agent Orange. The Soldiers could NOT Sue the Federal Government, all they could do was apply for VA benefits, but the law did NOT forbid them from sung the maker of Agent Orange which they did and won. The courts ruled the Veterans were NOT forbidden to sue contractors who caused them harm, even if had the actions of the contractors been done by the Army or the Federal Government the Soldiers would have been BARRED from suing. Congress, under Reagan, changed the law to extend the prohibition to cover items produced for the Military, but that extension only covered items MADE for the Military, it did NOT cover injuries caused do to the act of a Military Contractor itself. What Blackwater was trying to do is extend that ban to include Contractors, like themselves, who provided services to the Military. The Court's rejected that expansion for it was in derogation of the Common Law AND did not explicitly come under the law covering Compensation for injuries while in the Service (The inability of Soldiers to sue must be narrowly construed since it is in derogation of the Common Law which permitted such lawsuits).
The second issue is the legal doctrine know as "The King's Law follows the King's Troops". Basically when US Troops are operating, US laws applies in regard to the actions of the US Troops among themselves. A British case from the 1950s shows this doctrine in action (The Common Law derives from Britain and this the law in this regard is the same on both sides of the Atlantic). In 1950s a female former Polish Soldier filed a divorce against a Male former Polish soldier. They had been married by an Italian Priest during WWII as the British and US Armies moved up the Italian Peninsula. Both had been serving in the BRITISH army at that time. They did NOT get a license from the Italian Government (Something about Italy in 1943 seems to preclude that i.e. the war being fought in Italy). Such a License has been a requirement of Italian law since Unification if Italy in the 1860s. No marriage license, as required under Italian Law. the marriage was NOT valid under Italian law. The Male said since no valid Marriage occurred under Italian law, no divorce was required. The courts used the Doctrine that "The Kings Law follows the King's Troops" to say that since the male and female Soldiers were serving under the Command of the British Army, British law applied to the Marriage. While Britain had abolished Common Law Marriages IF FORMED IN BRITAIN ITSELF, in the 1700s, the doctrine still existed for areas under British Control overseas. Thus the Marriage while invalid under Italian law, was a valid overseas BRITISH COMMON LAW MARRIAGE, for both parties had been serving in the British Army at the Time of the Marriage and All that was required for a Common Law Marriage was for two people to exchange vows and that had occurred (Remember the Priest had performed a Marriage Ceremony thus you had an exchange of vows, all that was needed to have a valid Common Law Marriage). I mention the case for it clearly shows The doctrine of "The Kings Law follows the Kings Troops", a doctrine that has a long history in the laws of Britain and the US.
The Doctrine of "The Kings Law follows the Kings Troops" applies to Blackwater, Blackwater contract is to support US Troops in Afghanistan and as as such subject to US MILITARY control. As such they are subject to US laws and the doctrine "The Kings Law follows the Kings Troops". Blackwater may also be subject to Afghan law (Unless the treaty covering US troops in Afghanistan prohibit US troops being subject to Afghan law, which I believe is the case). Even if the Afghan law also applies under the law when you have overlapping Jurisdiction, the fact that another legal forum may also have jurisdiction does NOT prevent a court from exercising its own jurisdiction over the subject matter (I.e. if you are killed while standing at the intersection of four states, which state has Jurisdiction over your Murder? The Answer is ALL FOUR OF THEM, for you were in ALL of them when you were killed, you can not even claim one state does NOT have jurisdiction because anther state has already convicted you of the crime. Most states will just leave you sit in the Jail of the State that you were arrested in, but that varies depending on the DA in each state and if the Murder hit the front page or not. The greater the publicity of the Crime, the more likely you will be convicted in all four states and maybe the Federal Government if the junction is on a Federal Reservation or other area of Federal Control). Thus US courts can have jurisdiction even if another court also has jurisdiction and would apply a different set of laws (I.e. Afghan applies Moslem Shari’a law as used in Afghanistan, while US Courts would apply US laws).
Please note, US Courts can and have applied foreign laws that apply to a case when it is clear that the Foreign law is that law that is applicable. Thus if the Courts rule Shari’a law applies to the case, the Courts will apply Shari’a law, but as I pointed out above, I believe US law applies in this case NOT Shari’a law.
In my opinion, Blackwater is trying every effort to delay this case from going to trial, to force the Plaintiff to come to an agreement. The above two doctrine covers the claim of Blackwater, but Blackwater is doing all it can to prevent this from going to trial. I will not be surprised if Blackwater tries the Warsaw Treaty in the Future (The Warsaw Treaty restricts how much a Passenger on a Plane can recover do to a Plane accident if the plane is on an international Flight, again not applicable here, but can be a method to delay this from going to trial as the Court has to have a hearing on the issue of does the Treaty actually applies).
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