Crime

Justice Collides With the Rule of Law

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According to The New York Times, FBI investigators have concluded that at least 14 of the 17 Iraqi civilians killed by Blackwater guards at Baghdad's Nisour Square on September 16 died as a result of unjustified shootings:

Investigators found no evidence to support assertions by Blackwater employees that they were fired upon by Iraqi civilians. That finding sharply contradicts initial assertions by Blackwater officials, who said that company employees fired in self-defense and that three company vehicles were damaged by gunfire.

Government officials said the shooting occurred when security guards fired in response to gunfire by other members of their unit in the mistaken belief that they were under attack. One official said, "I wouldn't call it a massacre, but to say it was unwarranted is an understatement."

The FBI agents found that three of the fatal shootings may have been justified by a fear of attack (a fear that in each case proved to be mistaken). By contrast, the Times notes, "A separate military review of the Sept. 16 shootings concluded that all of the killings were unjustified and potentially criminal. One of the military investigators said the F.B.I. was being generous to Blackwater in characterizing any of the killings as justifiable."

The problem now is that it's not clear what law can be used to prosecute the Blackwater guards. The U.S. government has exempted American personnel from Iraqi law, and the Military Extraterritorial Jurisdiction Act (MEJA) applies only to Defense Department contractors, while the Blackwater guards were working for the State Department. Nearly a year after he shot and killed a bodyguard for an Iraqi vice president in a drunken rage, another Blackwater guard still has not been charged in the homicide because prosecutors can't settle on a satisfactory legal approach. In this light, the comments of Rep. David E. Price (D-N.C.), who has introduced legislation that would extend MEJA's coverage to all U.S. contractors operating in war zones, are a bit puzzling:

Just because there are deficiencies in the law, and there certainly are, that can't serve as an excuse for criminal actions like this to be unpunished. I hope the new attorney general makes this case a top priority. He needs to announce to the American people and the world that we uphold the rule of law and we intend to pursue this.

Among other things, however, the rule of law means that Price's bill, which was overwhelmingly approved by the House last month and is being considered by the Senate, can't be applied retroactively. And if the "deficiencies" in current statutes are so severe that prosecutors can't figure out how to charge State Department contractors who have committed criminal homicides in Iraq, the rule of law could require letting them go. In this case what the rule of law demands may be different from what justice demands.

Addendum: One possible approach is to charge the Blackwater guards under the War Crimes Act, which applies to U.S. nationals (not just military personnel) throughout the world and covers various violations of international agreements laying out the rules of war. The question then would be whether the recklessness seen in Nisour Square constitutes a war crime.

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  1. I thought Iraq had a working system by now. Why can’t they prosecute these mercenaries?

    Throw the book at them. Or, to quote Kos, “screw them.”

  2. Why not allow the soverign govenrment government that has legal jurisdiction over the territory in which the alleged crimes took place assert that jurisdiction in accordance with its laws?

    That’s what would happen if American “security contractors” committed homicides in Japan, France, or Peru.

  3. Not just “working,” John-David. Sovereign, free, liberated, and worth the sacrifice of thousands of our young men to keep in power.

  4. Privatization, it’s fan-tastic!

  5. We’re always hearing the bad news from Iraq. What about all the good news from Iraq, like all the people who weren’t killed by contractors?

    OK, yeah, some of them were killed by somebody else, but still!

  6. a better approach is to sell all of Blackwater’s assets and liquidate the company in retaliation for CEO Prince lying so bad to Congress and to all of us.

    Families of the daed get a billion apiece or so from the fire sale. That would be better justice.

  7. Doktor T:

    those people are too busy painting new schools to report on the good news! PAINTED SCHOOLS!

    Poor HFCS boy. You obviously have much to learn about the law. You had such promise, but please stick close, and I can teach you all about the law.

    Dammit, DanT: there you go redeeming yourself with an AWESOME comment. grumble grumble.

  8. I want to hear RC Dean, Dondero, Guy Montag, joshua corning, or wayne explain why we should not allow our Iraqi allies to try our nationals for crimes committed in their territory.

    I understand they’ve been known to use advanced interrogation techniques, but that’s perfectly legal.

  9. Or, best of all, John. He’s a military lawyer, and always the first to tell us we’re racists for not having faith in the government we installed in Iraq.

    John, why shouldn’t the Iraqis be allowed to enforce the laws their democratically-elected legislature adopted against our nationals in their territory?

  10. VM-

    Actually, I’m not sure that this is a good example of privatization. Or maybe it’s an example of “privatization.” There’s a big difference between deciding that a service will be provided by private firms to paying customers (i.e. leaving that matter to the private sector) and replacing a federal employee with a federal contractor. The federal contractor, while ostensibly private, is still subject to many of the pathologies of the public sector (and may bring a few pathologies distinct from those of civil servants).

    This is an example of government contracting in action, not the private sector in action.

  11. We can’t prosecute these guys because the mercenaries would stop fighting. Looking back to history the only way to stop popular insurgencies is to attack the population itself (Boer War, Phillipine insurrection).

    Without the mercs we’ll have to do another surge and that without many of our most expert fighters.

  12. Those Blackwater guards ought to be fired immediately and sent where they belong… to SWAT teams in the WoD.

  13. Doktor T:

    true – I was reacting to DanT’s post because caused a quick, reflexive laugh, that’s why. 🙂

  14. I want to hear RC Dean, Dondero, Guy Montag, joshua corning, or wayne explain why we should not allow our Iraqi allies to try our nationals for crimes committed in their territory.

    joe, I think because the US govt. has exempted American personnel from Iraqi law, they can’t retroactively reneg on that and let the Iraqis try them. That’s Jacob’s point; our own supposed dedication to the rule of law could let these guys off the hook.

  15. “One of the military investigators said the F.B.I. was being
    generous to Blackwater in characterizing any of the killings
    as justifiable.”

    Naturally a gang of superpowered cops will take a more sympathetic
    view of this, thinking of such justified murder as “I fired two
    clips blindly into a car — because other cops were shooting it!”

  16. I can teach you all about the law.

    Okay, how do we get out of the ex post facto problem here, VemSter?

    I mean one way is to say that ex post facto principles do not apply to Iraq, but that seems like it would send the wrong message to a nation in its Constitutional nativity. Also, if the men did what they did because the law allowed it, then it is unfair to change that on them.

    Nor am I that comfortable with cases like United States v. Verdugo-Urquidez (you’ve read the opinions in that, haven’t you VemSter — you might not be surprised to find out that I prefer the Stevens concurrence) and its progeny (eg, teh Russian hacker case) that suggest that Constitutional protections don’t apply outside the US. Heck, I don’t want the US rooting around my Internet records just because they are offshore! They might discover my true identity.

    But, punishment can be made here. Blackwater’s pattern of behavior here dictates a death sentence for Blackwater USA. Death sentences are plenty constitutional, especially as applied to corporate persons. Blackwater USA, as a corporation, is more responsible for all of those wrong deaths than the shooters are anyway.

    What is your better idea, Vee-ayy to tha Emay?

  17. Slightly off topic, can anyone shed any light on this alleged Blackwater shooting spree? Never seen any MSM converage of it, or any definitive explanation of what it is. Whatever it is, it looks awful:

    http://www.youtube.com/watch?v=-ZHqugy_QBw

  18. Privatization, it’s fan-tastic!

    Goverment contractors are not an example of privatization. They’re an example of how the politically connected suck at the teat. In a truly privatized system, for example, you would pay the private fire department out of your pocket (or not), not through some government middleman who would take his own cut and would not necessarily have a motive to give the contract to the best bid.

    I do not, however, think that the military should be privatized in any sense.

  19. see, you’re trying to use the lingo, but it’s just not working. It’s funny, actually. To gain better understanding, I suggest you netflix the fifth episode (season three) of LA Law.

    But you’re just embarrassing yourself, now.

    You’re gonna be a tougher project than I thought. Such youthful, naive ignorance.

  20. Who cares. Nothing wrong was done, those killed were just a bunch of Iraqis, they are all terrorists, we should kill ’em all. To me this is just payback for the 911 attack that was done by Iraqi terrorists.

  21. This is an example of government contracting in action, not the private sector in action.

    T, quite true that’s an important distinction, and one that has gotten conflated quite a bit of late. Part of the reason it’s been conflated, however, is that the former has been pushed by many who are associated with advocating the latter, oftentimes (if I’m not mistaken) using similar justifications, even if some of those justifications are groundless with regard to the former. Government contractors may have greater incentive to operate efficiently than government employees, but they may have no more incentive to provide good service nor do they have any greater incentive to hold down the ultimate cost to the taxpayer.

  22. Actually, I’m not sure that this is a good example of privatization. Or maybe it’s an example of “privatization.” There’s a big difference between deciding that a service will be provided by private firms to paying customers (i.e. leaving that matter to the private sector) and replacing a federal employee with a federal contractor. The federal contractor, while ostensibly private, is still subject to many of the pathologies of the public sector (and may bring a few pathologies distinct from those of civil servants).

    This is an example of government contracting in action, not the private sector in action.

    But, I’m always hearing that even within Constitutional and proper functions of the
    government it’s better to hire private companies to do the work, since they have a profit motive and thus will work harder and more efficently than say those lazy people at the DMV.

    Also, less government oversight is always better, right? And the government telling Blackwater that they can literally do whatever they want is about as deregulated an environment as you could wish for.

    Blackwater should have been a libertarian dream – a private group of well-armed citizens earning a profit by serving its customers. What could go wrong?

    What could go wrong?

  23. We should kill them all, after 911, the American people want DEATH!!!

    Give me liberty or give me DEATH!!!

    DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!! DEATH!!!

  24. What could go wrong?

    Eh, some libertrians who should have known better just went a bit crazy after 9/11.

    https://www.reason.com/blog/printer/114505.html

    Posts like this show that the HnR gang is coming back to reality as far as foreign policy goes. I think in Cavanaugh’s case, the Lebanon War helped him see the light. That Michael Young guy seems unrepentent, but then, you don’t see him using this platform much anymore.

  25. joe, I think because the US govt. has exempted American personnel from Iraqi law, they can’t retroactively reneg on that and let the Iraqis try them.

    That just begs the question, why are they exempt from Iraqi law?

  26. That just begs the question, why are they exempt from Iraqi law?

    So they can KILL the terrorists, i.e. Iraqis.

  27. That just begs the question, why are they exempt from Iraqi law?

    Furthermore, how can the U.S. government exempt someone unilaterally from another country’s laws? Or was this some questionable quasi-leagal arrangement made during the CPA days?

  28. The FBI agents found that three of the fatal shootings may have been justified by a fear of attack (a fear that in each case proved to be mistaken).

    By this logic, isn’t the entire Iraq war justified? Why wouldn;t a contractor in said war deem pre-emptive strikes justifiable?

  29. That just begs the question, why are they exempt from Iraqi law?

    I dunno, ask the government. They often do things that are inimical to liberty and justice.

    However, it doesn’t change the fact that you can’t retroactively apply punitive law.

  30. “But, I’m always hearing that even within Constitutional and proper functions of the
    government it’s better to hire private companies to do the work, since they have a profit motive and thus will work harder and more efficently than say those lazy people at the DMV.”

    obviously people who told you that were wrong.

    “Blackwater should have been a libertarian dream – a private group of well-armed citizens earning a profit by serving its customers.”

    not for this self-described libertarian.

  31. Furthermore, how can the U.S. government exempt someone unilaterally from another country’s laws? Or was this some questionable quasi-leagal arrangement made during the CPA days?

    Once you’ve successfully invaded a country the law is pretty much what you say it is…

  32. That just begs the question, why are they exempt from Iraqi law?

    Because one important aspect of the law, both Constitutionally and trans-Constitutionally is that it is supposed to be written down and publically accessible and sufficiently clear, so that people can guide their behavior in accordance with the dictates of the law.

    When people do guide their behavior in accordance with the law as clearly written, then it is wrong to change the law reteroactively and argue that the people should have predicted the changes in the law. You are supposed to be able to rely on the law, and the permissions it grants.

    As far as why they are exempt from Iraqi Law, it is because people high up in the US government decided they should be. None of the shooters was responsible for that bad law. The shooters should be able to rely on that law, despite its badness.

    I mean I hold Bush and Cheney primarily responsible. Secondary responsibility falls on Kerry and Obama for failing to make the issue the centerpiece of the 2004 Democratic convention (that one where the guy went nuts about the balloons on the air).

    I don’t think you are giving the justice concerns underlying anti-ex post facto laws due consideration here, joe.

  33. However, it doesn’t change the fact that you can’t retroactively apply punitive law.

    The Iraqis had laws against murder at the time the shootings occured. I agree, WE couldn’t retroactively change the contractors’ (and their actions’) legal status under American law, but that’s why I’m talking about Iraqi law.

  34. It’s all fun and games while Blackwater is in Iraq killing brown people. What’s going to happen when Blackwater runs out of targets and the party ends? I don’t think Blackwater will just go out of business, they will find, or create, other “opportunities”. Expect to see these folks in a SWAT team near you.

  35. but that’s why I’m talking about Iraqi law.

    Because Iraqi law should have the same prohibition against ex post facto laws that US law does. For the same reasons, to wit, justice.

  36. I agree, WE couldn’t retroactively change the contractors’ (and their actions’) legal status under American law, but that’s why I’m talking about Iraqi law.

    If the Iraqis “agreed” (they probably had no choice) to this status, then they are bound as well. Honestly, it sounds like the State Dept. hired contractors and didn’t require them to be subject to military conduct codes, whereas the DoD did. So blame Foggy Bottom.

  37. “Eh, some libertrians who should have known better just went a bit crazy after 9/11.”

    and some non-libertarians went a lot crazy long before then.

  38. Or was this some questionable quasi-leagal arrangement made during the CPA days?

    One of the last things that L. Paul Bremer and the CPA did before Bremer get out of there was passing a law that gave immunity for contractors law that disallows these guys from being prosecuted

  39. Spell Check from the article:
    “Blackwater guard still has not been charged in the homicide because prosecutors can’t settle on a {satisafactory}…”

    One too many “A”s. Unless it’s a factory that makes satisa…

  40. The shooters should be able to rely on that law, despite its badness.

    Yeah, because who, without professional legal guidance, would have known that gunning down innocent people was wrong.

  41. Because Iraqi law should have the same prohibition against ex post facto laws that US law does.

    Once again, with feeling: Iraqi law already defined these individuals’ actions as illegal at the time they committed them.

    If the Iraqis “agreed” (they probably had no choice) to this status, then they are bound as well. Setting aside the concept of coerced consent, did they? IF the Iraqi law granted American contractors immunity from Iraqi law, then it would ex-post facto to apply Iraqi law to them.

    All I’ve heard about is a grant of immunity from American law.

  42. joe, WTF are you even arguing about? Your reflexive combatativeness gets really fucking annoying really fast. I, and others, have stated within our knowledge what we think is probably happening here. That’s it. There’s no argument here, just some opinion thrown out as to why these guys might get away.

  43. Iraqi law already defined these individuals’ actions as illegal at the time they committed them.

    Doesn’t matter. They weren’t subject to Iraqi jurisdiction. Retroactively placing someone under the jurisdiction of another legal system is no different than retroactively applying the laws of that legal system.

    Repeat after me: Retroactive. Application. Of. Laws. Is. Bad.

    The question of whether they should have been exempted is an entirely different question, as is the question of what recourse we have against them now.

  44. Repeat after me: Retroactive. Application. Of. Laws. Is. Bad.

    I completely agree.

  45. Privatization, it’s fan-tastic!

    Yeah, like the government has never had similar or larger screw ups. That bombing of the Chinese embassy in Belgrade, or the My Lai massacre, or Abu Ghraib, or the Haditha killings. Now this doesn’t excuse the actions of the Blackwater contractors by any means, but the implicit suggestion that government is better at avoiding these things is somewhat dubious, and even a bit grotesque, IMO.

    Further, Dan T. is ignoring that with the government implementing a cover up is much easier, and routine. But with the Blackwater incident this is much less the case.

    Finally Dan T. is using a strawman argument, IMO. The implicit assumption is that with contractors nothign could go wrong. I don’t know of anybody who thinks the private sector is perfect/makes no mistakes. Usually the argument is that the private sector does things better/more efficiently.

    But keep beating up that strawman Dan, I’m sure it is lots of fun.

  46. Funny, Episiarch, no one else seems to be confused what I’m arguing.

    RC Dean,

    That’s funny, I thought we transfered sovereignty to the Iraqis.

    Anyhoo. The question of whether they should have been exempted is an entirely different question Actually, that’s the question I asked: why not allow the Iraqis with jurisdiction over the territory prosecute crimes in their jurisdiction?

    It’s a “should” question. Should they have been exempted? Why?

  47. For a rebuttal view on this topic, there’s a video at the link on my name that sheds some light on the matter.

  48. Finally Dan T. is using a strawman argument, IMO. The implicit assumption is that with contractors nothign could go wrong. I don’t know of anybody who thinks the private sector is perfect/makes no mistakes. Usually the argument is that the private sector does things better/more efficiently.

    As in more efficiently avoiding accountability? That seems to be the objection…

  49. Setting aside the concept of coerced consent, did they? IF the Iraqi law granted American contractors immunity from Iraqi law, then it would ex-post facto to apply Iraqi law to them.

    All I’ve heard about is a grant of immunity from American law.

    I don’t think coerced consent applies, but the question about whether Iraqi law (and not just US law) gives immunity is an interesting question. I was/am kind of assuming that Iraqi law itself did give the immunity, but if not . . .

  50. As in more efficiently avoiding accountability? That seems to be the objection…

    Fair question, but what level of cover up was there? Was there any official actions by the U.S. government to cover up the Blackwater incident? Compare it to previous tragedies/atrocities committed by the U.S. government such as Abu Ghraib or the Haditha killings.

  51. Does the ex post facto prohibition apply when the law in question is jurisdictional and not punitive? I’m not sure it does (haven’t done any research). That may be where Rep. Price is coming from.

  52. Unless the Iraqi Constitution bars ex post facto laws, they can apply a law retoactively. Our Constitution with all its wisdom does not apply to Iraqi law. Period. I dare say the Iraqis were stupid to sign off on the immunity, but they did. That’s their fault. If they didn’t have the wisdom to understand that something like this would occur, that’s on them. The purpose of giving immunity is so you can’t punish under the law. If you give someone a get out of jail free card, don’t complain when it’s redeemed.

    I agree that Blackwater behaved badly and illegally. But Iraq gave them immunity in advance. They should have changed the law when the VP’s guard was killed. They didn’t. Maybe they will correct the error of their ways. However, if the Iraq Constitution does not bar ex post facto laws then they can pass a law and apply it retroactively.

    As far as ex post facto laws and our Constitution, Congress is considering such an unconstitutional law to provide immunity to the telcos for past crimes. Our own government won’t stand behind our Constitution on ex post facto immunity, why should we expect more from Iraq?

  53. Does the ex post facto prohibition apply when the law in question is jurisdictional and not punitive?

    Interesting summary here:

    http://www.house.leg.state.mn.us/hrd/issinfo/clssexpost.htm#3

    Without reading the cases, it sounds like extending jurisdiction in a way that would allow prosecution of someone who previously could not be prosecuted is ex post facto.

    Going forward, should Blackwater be subject to Iraqi law? Probably. I think their usefulness is just about at an end anyway, given the rampup of Iraqi security and the drop in violence.

  54. As far as ex post facto laws and our Constitution, Congress is considering such an unconstitutional law to provide immunity to the telcos for past crimes.

    Granting immunity is not an ex post facto law under our Constitution.

  55. I’m not saying the granting of immunity is.

    Usually the granting immunity does not require passing a new law. It’s not the immunity per se I’m saying is ex post facto. If a new law is required to give them immunity, the new law can not give them immunity to a past crime, only crimes commited after the new law is passed would be eligible for the immunity that the new law allows.

  56. “I wouldn’t call it a massacre, but to say it was unwarranted is an understatement.”

    Uh… is there something other than “massacre” to call the “unwarranted” (which he calls an understatement, no less!) killing of 14 civilians? Apparently you must be an expert with a very keen understanding of mass homicides to be able to distinguish the fine gradations that lie between “unwarranted” and “massacre”.

  57. drawnasunder | November 14, 2007, 11:27am | #

    Slightly off topic, can anyone shed any light on this alleged Blackwater shooting spree? Never seen any MSM converage of it, or any definitive explanation of what it is. Whatever it is, it looks awful:

    http://www.youtube.com/watch?v=-ZHqugy_QBw

    That wasn’t Blackwater. Those were Brits.

    They were prosecuted in England and found not guitly. I don’t know how.

    Anyways it was on their MSM

  58. How many deaths define a massacre, my how times have changed.

    http://en.wikipedia.org/wiki/Boston_Massacre

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