Civil Liberties

Lawless Justice

The fatal flaw at the center of the Blackwater indictment

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In January 2007, Rep. David Price introduced a bill that would have applied American criminal law to all government contractors who commit felonies while working in areas where U.S. forces are operating. "If we do not hold contract personnel accountable for misconduct, as we do for our military," the North Carolina Democrat said, "we are undermining our nation's credibility as a country that upholds the rule of law."

But in the case of the guards who killed 17 civilians in Baghdad's Nisour Square last year, holding contract personnel accountable for misconduct may be incompatible with the rule of law. That's because the law they are accused of violating does not apply to them.

A federal indictment unsealed this week charges five former employees of Blackwater Worldwide, hired by the State Department to provide protection services in Baghdad, with 14 counts of voluntary manslaughter, 20 counts of attempted manslaughter, and one count of discharging a firearm while committing a violent crime. A sixth guard, Jeremy Ridgeway, has pleaded guilty to manslaughter.

The men were part of a convoy that left Baghdad's International Zone, where the U.S. embassy is located, around noon on September 16, 2007, in response to a report that a car bomb had exploded near a Blackwater detail about a mile from Nisour Square. After the convoy entered the square and created a roadblock, Blackwater employees opened fire on a white Kia sedan approaching the traffic circle from the south. At least six guards then fired rifles, machine guns, and grenades at various targets, killing 17 people and injuring 20.

Although the guards said they were responding to an ambush, investigations by the Iraqi government, the Pentagon, and the FBI found no evidence that anyone else fired weapons during the incident. The FBI concluded that three of the fatal shootings might have been justified by a mistaken fear of imminent attack, but the rest were not. According to Ridgeway, members of the convoy made "no attempt to provide reasonable warnings" to the Kia driver, and "turret gunners in the convoy continued to fire their machine guns at civilian vehicles that posed no threat."

Such actions do appear to qualify as voluntary manslaughter, defined by federal law as "the unlawful killing of a human being without malice…upon a sudden quarrel or heat of passion." The problem is that U.S. criminal law generally does not apply in foreign countries.

The Military Extraterritorial Jurisdiction Act (MEJA), the 2000 statute under which the Blackwater guards are charged, covers people "employed by or accompanying the Armed Forces outside the United States," including Defense Department contractors. But Blackwater was hired by the State Department.

The Congressional Research Service says "MEJA does not appear to cover civilian and contract employees of agencies engaged in their own operations overseas." The Congressional Budget Office agrees, stating flatly that "employees of security contractors working for the Department of State would not be subject to MEJA."

A 2004 amendment expanded MEJA's coverage to include contractors hired by other agencies "to the extent such employment relates to supporting the mission of the Department of Defense overseas." But from the context in which the amendment was passed, it's clear the intent was to cover civilians who work for the Pentagon under contracts arranged by other departments, such as interrogators at the Abu Ghraib prison who were officially hired by the Department of the Interior. If the amendment's authors had wanted to cover all contractors in areas of military activity, they easily could have done so, as Price's 2007 bill shows.

The obvious solution is to prosecute the former Blackwater employees under Iraqi law. But an order by the provisional government created after the U.S. invasion made contractors immune from local prosecutions for work-related conduct. Largely as a result of outrage over the Nisour Square incident, that immunity will be lifted under an agreement that takes effect in January—too late for justice in this case.

© Copyright 2008 by Creators Syndicate Inc.

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  1. So, um, then just charge them with murder. I’m pretty sure that’s a crime in both jurisdictions.

  2. Elemenope,

    Dude, I believe that is the problem. Technically it isn’t murder. I got no time to draw up definitions as I got to get to the University and take 2 exams.

  3. How is shooting unprovoked at non-violent non-combatants not murder?

    Good luck, BTW.

  4. The FBI seemed to have thought they could have reason to believe they were being attacked:

    The FBI concluded that three of the fatal shootings might have been justified by a mistaken fear of imminent attack, but the rest were not.

    sounds like manslaughter for those three – murder for the rest.

  5. sounds like manslaughter for those three – murder for the rest.

    You think as I do.

  6. Charge them with whatever you want–it sounds, however, from the article, that they aren’t covered by the DoD restrictions. So their lawyers will most likely be able to get them off.

    While I used to be totally behind the concept of private mercenary contractors, we see the inherent problem in them being hired by the state and not private individuals–they become essentially the monarch’s private army, both protected by the government yet unaccountable. Bad, bad, scenario.

  7. Mercenaries deserve what they get. They are paid very well for what they do and they operate in a legal gray area. They cannot plead ignorance and they cannot trust their own government. They take their chances, and if “justice” bites them on the ass, tough shit. I have no sympathy for any of those cowboys. Want to play soldier? Try enlisting.

  8. So, um, then just charge them with murder. I’m pretty sure that’s a crime in both jurisdictions.

    Sullum’s article addresses this. While manslaughter (the charge against the Blackwater guys) is a crime in Iraq, the provisional government excepted US contractors from prosecution. Meanwhile, the US law that applies to criminal acts of contractors overseas doesn’t appear to cover State Department contractors.

    Want to play soldier? Try enlisting.

    They did. All of the defendants are decorated former military veterans–mostly Marines.

    And while it’s fun to throw around the term “mercenary,” what’s wrong about hiring armed security guards to protect people in a dangerous area of the world.

    Don’t get me wrong, what these guys are accused of is bad stuff, but I don’t see why people have a problem with hiring armed bodyguards. Would non-contractors with the same background (decorated Marines) be any less prone to overreacting to an imagined threat?

  9. Seems to me they are well deserved of the title of ‘enemy combatants’. In these tight times saving money on a trial would be good, and who knows we might get a double bonus if they torture themselves. The whole complex of them somehow being above/beyond our law[s] [sic] plainly shows why we’ll fail in our attempts to prosecute the WoT. Again. The totality of the Blackwater [et al] concept was, and still is, flawed on all fronts.

    It’s extraordinarily sad to see the dances going on from all ‘sides’ in attempt to circumvent the base nature of the “need” for mercenaries in the first place.

  10. Don’t get me wrong, what these guys are accused of is bad stuff, but I don’t see why people have a problem with hiring armed bodyguards. Would non-contractors with the same background (decorated Marines) be any less prone to overreacting to an imagined threat?

    Probably. Decorated Marines in the Marines wouldn’t have b.s. legal immunity to hide behind.

  11. Decorated Marines in the Marines wouldn’t have b.s. legal immunity to hide behind.

    Immunity or not, Marines are still human, and make mistakes.

  12. decorated former military veterans

    Former. And what modern vet is not “decorated”? Take off the uniform and you’re a mercenary.

  13. Totally agree that mistakes happen, Abdul. However, don’t you think the mental calculus changes when you know you can’t be prosecuted under American or Iraqi law. When you’re in the military, you have to worry about the UCMJ.

    It’s a classic case of when you reduce the cost of something*, you get more of it.

    * In this case misconduct

  14. Take off the uniform and you’re a mercenary.

    What, inherently, is wrong with being a mercenary? You seem to have a big problem with them.

  15. Iraq is a dangerous place. As long as you have people planting road side bombs and regularly ambushing you, you will have guards with their own fingers on the triggers…

  16. I hope President Obama and Speaker Pelosi stop spending taxpayer money on these mercenaries.

  17. a bill that would have applied American criminal law to all government contractors who commit felonies while working in areas where U.S. forces are operating.

    In combination with Boumediene, this would further “civilianize” the military, by providing the basis specified by SCOTUS to extend US Constitutional rights to every person in areas where US forces are operating. Probably want to think twice, or even three times, about that.

    Mercenaries deserve what they get.

    Mercenaries may, but Blackwater in Iraq weren’t mercenaries. They were US nationals working for the US government.

    The FBI concluded that three of the fatal shootings might have been justified by a mistaken fear of imminent attack, but the rest were not.

    A fear of imminent attack is a good legal basis for self-defense, so no charges should be brought wherever it can be shown.

  18. I don’t quite get what’s wrong with mercenaries. Why is it worse to have contract killers than killers on a payroll?

    And, to be pedantic and technical, if you look up the Geneva Convention’s definition of mercenaries, these guys aren’t mercenaries.

  19. So we send folks over there, over there, on our rather large dime mind you and impose upon the host a set of rules that allows them not to be accountable locally and then say [or try to] that they are above our own too. At least when we send out blackops folks they like jim phelps will be disavowed. The notion that we can hire someone to hire folks for us and not be responsible is one of the reasons many folks around the world doubt us.

  20. “And while it’s fun to throw around the term “mercenary,” what’s wrong about hiring armed security guards to protect people in a dangerous area of the world.”

    Because the people who are citizens of the country that these “mercenaries” are sent to fail to see the legal distinction between the US soldiers carrying guns, speaking English, and being ordered around by the US gov’t and the Blackwater crew also carrying guns, speaking English and being kinda sorta ordered around by the US gov’t.
    Shit rolls downhill. And if these Blackwater type crews are percieved as shoot-first assholes that kill innocent people, well, it’s a problem for us.

  21. I’m against mercenaries, partly inherently, but partly because I enjoy the fact that our fighting forces are all volunteer. That means if we want to fight wars, we need to have enough people willing to fight. If not enough people sign up, then we can’t have a war.

    Where mercenaries become a problem is that now, we don’t need people to sign up, we just need money to pay for the mercenaries, and with congress just rampantly plucking dollars out of thick debt, the all volunteer military starts to go away.

    Surely, the mercenaries are fighting voluntarily, but they don’t need to be American nationals. Blackwater could theoretically have hired foreginers, making the pool for “volunteers” much larger than just those fighting for the country that started the war.

    In the end, I think that if we don’t have enough people in the military to fight a war, we shouldn’t be fighting that war. We shouldn’t be supplementing our public forces with private forces.

  22. I don’t quite get what’s wrong with mercenaries. Why is it worse to have contract killers than killers on a payroll?

    The problem with outfits like Blackwater is that use soldiers/Marines trained, at high cost, by the US government for the US government. Then the government has to pay many multiple times more for essentially the same men. These guys were in their early 20s. Which means, in essence, that they did a tour, left, joined a contracting firm and cashed in on taxpayer funded training. I can’t fault the guys for doing it, but it’s a raw deal for taxpayers.

    I would be interested to see what would happen if there was a 5 year non-compete placed on these contractor firms. Meaning, contractors cannot use men that were in the military within 5 years of being in active duty for contracting duties for the US government. My guess is you would see a higher rate of reenlistment and fewer contractors available.

  23. “What, inherently, is wrong with being a mercenary?”

    I think that people generally have a knee-jerk reaction to people that contract themselves out to the highest bidder as a result of their desire/capability to go to war zones and, quite often, shoot people, all the while it being kinda implicit that money is the motivating factor.
    (Just mention Terrell Owens or Roger Clemens to a group of sports fans and you’ll get an idea of what I mean.)

  24. So it’s the defendants’ fault that the government did not properly define what legal jurisdiction they fall under?

    That seems fair.

    *Note: I’m not arguing what they did was right.

  25. Which means, in essence, that they did a tour, left, joined a contracting firm and cashed in on taxpayer funded training. I can’t fault the guys for doing it, but it’s a raw deal for taxpayers.

    No it’s not. If the funds weren’t there 90% of them wouldn’t be over there either. God forbid if we actually payed soldiers market value. Who knows, the whole Iraq thing might not have got off the ground at all due to costs.

    Jokes aside, mercenaries, providing they are proficient at their job, are actually a cost savings in the long run. Once the wars over you can release them on mass. No pensions, VA, or other government programs required.

  26. “Jokes aside, mercenaries, providing they are proficient at their job, are actually a cost savings in the long run. Once the wars over you can release them on mass. No pensions, VA, or other government programs required.”

    Sweet! So once the gov’t initiates a plan – invade Iraq – and looks to save a few dimes by way of hiring mercenaries, if the mercenary sent by the gov’t loses a leg or something and needs lifelong care, at least Uncle Sam doesn’t have to worry about all the costs involved with that injury?
    You’ve actually managed to make the action of hiring mercenaries even more detestable and depraved.

  27. Don’t forget that they were promised immunity by the State Dept. immediately after the shootings, in trade for a “true accounting” of the incident. The entire case hinges on a judge throwing out the immunity. What a mess.

  28. Sweet! So once the gov’t initiates a plan – invade Iraq – and looks to save a few dimes by way of hiring mercenaries, if the mercenary sent by the gov’t loses a leg or something and needs lifelong care, at least Uncle Sam doesn’t have to worry about all the costs involved with that injury?
    You’ve actually managed to make the action of hiring mercenaries even more detestable and depraved.

    Uh.. then don’t sign up to be a mercenary? Obviously many of these guys feel it’s worth risk.

  29. ”*Note: I’m not arguing what they did was right.”

    You are not arguing what they did was wrong eith; rather it seems that they should be allowed an exceptional loophole that we may well find was purposefully orchestrated [in part ]by their employer[s].

    “Jokes aside, mercenaries, providing they are proficient at their job, are actually a cost savings in the long run. Once the wars over you can release them on mass. No pensions, VA, or other government programs required.”

    Surely you are still joking, otherwise it’s not looking good….

  30. No it’s not. If the funds weren’t there 90% of them wouldn’t be over there either. God forbid if we actually payed soldiers market value. Who knows, the whole Iraq thing might not have got off the ground at all due to costs.

    We did increase salaries of soldiers of demand going up. Going to an outside firm for your own soldiers is an idiotic, non-cost effective way to do it. Unlike most real world labor outsourcing, there is no labor cost arbitrage. In fact, it’s the exact opposite. Because of this, you create a competitor and false market price. If you put in a non-compete (which is goes on in many other industries), you’ll get a better idea of market value because Blackwater and others will actually have to train their employees.

    Jokes aside, mercenaries, providing they are proficient at their job, are actually a cost savings in the long run. Once the wars over you can release them on mass. No pensions, VA, or other government programs required.

    Since most of those guys are veterans, they are eligible for the same things as other vets. Except things like injuries and long term care are, presumably, part of the insurance provided by the contracting firm. As a result, the government is paying for those long-term care needs, albeit indirectly. Nice try, though. By the way, the government has a system in place to adapt to varying manpower needs; active reserves and use of stop-loss (and to a lesser extent, enforcement of Don’t Ask, Don’t Tell).

  31. Don’t forget that they were promised immunity by the State Dept. immediately after the shootings, in trade for a “true accounting” of the incident. The entire case hinges on a judge throwing out the immunity. What a mess.

    As long as the new case doesn’t use any info from the State investigation, that immunity doesn’t apply.

  32. “Uh.. then don’t sign up to be a mercenary?”

    I think that “Don’t sign up mercenaries” is much better.

  33. Since most of those guys are veterans, they are eligible for the same things as other vets. Except things like injuries and long term care are, presumably, part of the insurance provided by the contracting firm. As a result, the government is paying for those long-term care needs, albeit indirectly. Nice try, though. By the way, the government has a system in place to adapt to varying manpower needs; active reserves and use of stop-loss (and to a lesser extent, enforcement of Don’t Ask, Don’t Tell).

    Ah yes stop loss, that’s much more fair. And unless they have already been in the military for 15+ years and are already elgible then the government will not give them any benefits.

    From Blackwaters’ own site:

    Contrary to numerous media reports, no Blackwater contractor is paid $1,000 per day. Depending on engagement, contractors are paid between $450 and $650 per day. Blackwater contractors work temporarily and are paid only for the days they work, unlike members of the U.S. military who are paid a salary. Also unlike military members who enjoy a well deserved and rich benefits package, Blackwater security professionals receive only pay, no benefits. After paying federal taxes, including Social Security matching, and covering health care and retirement payments, private contractors’ take-home pay is often less than the full compensation package many U.S. servicemen earn when salary and benefits are included.

    So unless they are outright lying, you can see why it saves money in the long run. They may cost more upfront but the back end is much smaller. This is no different from employers who hire temps during busy periods. They wouldn’t do it was it perceived as being profitable in the long run.

  34. I’m laughing at the mercenary tangent.

    These guys are former military, trained by the US Gov. They were hired by the US Department of State.

    They are US citizens working for the US government.

    They aren’t working for an African warlord to steal diamonds.

    The fundamental flaw seems to be that the DoD isn’t providing security for the DoS, or more simply, that the State Dept has fallen through a legislative loophole.

    It’s as if Congress doesn’t know how the government works! What a surprise!

  35. The real lesson here is don’t get into stupid wars.

    I suppose that lesson is somewhat beyond us, so we are left dicking around with the details of cost and efficiency of prosecuting stupid wars.

  36. Elemenope,

    Having just read the legal definitions I would like to apologize. I was in error. Funny how you can put your foot in your mouth thanks to misunderstood information from family members who work for attorneys.

  37. Also . . . once upon a time I thought mercenary would be a good career move. Marching through the countryside whoring, fighting, and pillaging like some sort of medievel Condottieri would have been good times.

  38. The real lesson here is don’t get into stupid wars.

    While I can agree with the sentiment, the likelyhood of that is currently small. So until that is acheived it’s best to try to make military action incur the least amount of blood and treasure as possible.

  39. On this issue, I’m adopting a rule of thumb:

    Anyone who refers to Blackwater in Iraq as mercenaries doesn’t get taken seriously. If you can’t get that much right, why should I waste my time reading what else you have to say?

  40. The fundamental flaw seems to be that the DoD isn’t providing security for the DoS,

    I suspect from the military’s perspective, not having to put their lives on the line for State Dept. pukes is more of a feature than a bug.

  41. If a company from Iraq came here and their employees behaved in such a manner, they would not get off the hook!

    These guys should be sent back to Iraq, tried by the Courts there and sent to prison there. That sends a message to the Iraqi people that we uphold the rule of law, and that we respect their legal system.

  42. These guys should be sent back to Iraq, tried by the Courts there and sent to prison there.

    Then they’d get off scot-free because–as Sullum explained–Iraq passed a law that excepted US contractors. Iraq has more recently passed a law, inspired by this incident, that will eliminate the exception.

  43. “That sends a message to the Iraqi people that we uphold the rule of law, and that we respect their legal system.”

    A wee bit late, even if feasible, for that to happen and have the desired effects.

  44. It shouldn’t be that difficult to find a court willing to overturn as unconstitutional the premise that the government is empowered to designate a limited group of individuals above the law, as the converse of a bill of attainder.

  45. Abdul-

    Is there any provision in the Iraqui constitution that forbids the Iraqi government from prosecuting american contractors for murder? If not, Iraq should demand their extradition immediately.

  46. War itself is a violation of the rule of war unlees the war is conducted by private parties seeking to crush collectivism and all of its cronies.

  47. Jacob,

    I thought it was the Coalition Provisional Authority (which is made up of Americans and Brits), not the provisional government (which is made up of Iraqis) that granted them immunity. There’s a huge moral difference between that. There also could be questions of the right of the US to determine whom a sovereign nation could and could not prosecute. At the time of the shooting, the Iraqi government was up and running.

  48. Is it really so hard for a libertarian to say “our government gave immunity to non-military personal that it should not have”?

    Revenge and retribution prosecutions seem more fitting of the left.

    Also Blackwater was under the employ of the state department. By going after Blackwater are we not saying to our government that it is OK for them to shield themselves by hiring contractors to do their dirty work?

  49. Anyone who refers to Blackwater in Iraq as mercenaries doesn’t get taken seriously.

    Implying that there are grave criticisms of Blackwater that you would “take seriously.” C’mom RCD, you have been posting here a long time, we know you by now and we weren’t born yesterday.

  50. 1) I forget where I read it, but the contractors were granted immunity by a “June 8th Security Council Resolution”. That doesnt sound like an Iraqi decision to me. Oh, and we all know how the US was just itching for its contractors to fall under Iraqi jurisdiction during talks for the new status-of-forces agreement. Riiiight…

    2) Secondly, lets apply the sanity test: What country, with any shred of sovereignty, dignity, and/or an accompanying shred of having its leaders truly be chosen by the people, has ever, or will ever, agree to have a roving gang of god knows how many foreigners run around on its territory, with COMPLETE IMMUNITY against ANY crime committed towards its own citizenry?

    This is why the US has been for all intents and purposes de facto occupying Iraq since it came in illegally. They say that Iraq was given sovereignty and yet the occupier demanded immunity for its murderers with guns during the SOF discussions.

    I also love how when Saddam was being “tried”, everybody told me that he was getting a fair trial, blah blah blah. But now all the sudden, proponents of giving US contractors immunity tell me its because “The Iraqi judicial system is not a fair one”.

    The first time I heard this was the day I lost all respect for the brain of any US military official.

    There is only one thing that is obvious from all this. The US is an Imperial power. It must be treated accordingly.

  51. A buddy of mine who served in the infantry over there had some anecdotes about one of the companies in his regiment who were taught the wrong hand signals, and mixed up the “slow down” signal with “stop”…the result was one or more cars getting “lit up” because they didn’t stop right away.

    His basic take on the Blackwater thing was ‘this shit happens all the time with the professional army why wouldn’t it happen with them’.

    …Just anecdotal evidence and not necessarily part of the case for or against these particular Blackwater guys…but it does beg the question- why is it so important to the feds to target these guys for legal action when this type of thing seems is fairly common in a warzone where you’re using trained killers in a police man’s role.

    War is inevitably just one big f’d up bumblefuck of violence. Let’s just try to avoid the next one altogether.

  52. Diplomatic immunity means foreigners run around on everyones territory with complete immunity to crimes committed against a country’s citizenry. Note the murder of a policewoman by a Libyan diplomat while she was protecting him against demonstrators. Of course you may claim that everyone, or just the UK, has no sovereignity and dignity, and their leaders are not chosen by the people. You’d probably be right!

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