Were Blackwater Guards Convicted Under a Law That Doesn't Cover Them?

Two issues that the Nisour Square shooters will raise on appeal


Blackwater Worldwide

Yesterday a federal judge in Washington, D.C., sentenced one former Blackwater Worldwide security guard to life in prison and three others to 30 years each in connection with the 2007 Nisour Square massacre in Baghdad. The guard who received the life sentence, Nicholas Slatten, was convicted of murder last October for firing the shots that set off the bloodbath, while the other three—Paul Slough, Evan Liberty, and Dustin Heard—were convicted of manslaughter for joining the fusillade, which killed 14 unarmed civilians. The defendants maintained that they were responding to hostile fire, but there was no evidence of that aside from their accounts. The jury did not buy it, and neither did U.S. District Judge Royce Lamberth. "It is clear these fine young men just panicked," Lamberth said, but "the overall, wild thing that went on here just cannot ever be condoned by a court."

I agree, and the charges seem appropriate given the lack of justification for the guards' actions. The problem is that the defendants, as State Department contractors, do not seem to be covered by the Military Extraterritorial Jurisdiction Act (MEJA), the law under which they were charged. As I explained in a column after they were indicted in 2008, MEJA covers people "employed by or accompanying the Armed Forces outside the United States," including Defense Department contractors. In a 2008 report, the Congressional Research Service said "MEJA does not appear to cover civilian and contract employees of agencies engaged in their own operations overseas." The Congressional Budget Office agreed, stating flatly that "employees of security contractors working for the Department of State would not be subject to MEJA."

The Transparency and Accountability in Security Contracting Act of 2007 would have addressed this gap by extending American criminal law to all government contractors who commit felonies while working in areas where U.S. forces are operating. But that bill did not pass.

In addition to the jurisdictional question, which the defendants are bound to raise again on appeal, there is the issue of the 30-year sentences imposed on Slough, Liberty, and Heard. Those mandatory minimums were triggered by a provision of federal law aimed at people who use machine guns "during and in relation to any crime of violence or drug trafficking crime." The Washington Post reports that "the charge has primarily been aimed at gang members, rarely against police officers accused of misconduct and never before against security contractors given military weapons by the U.S. government."

Counterintuitively, Lamberth sentenced Slough, Liberty, and Heard to time served on the manslaughter and attempted manslaughter counts—the essence of their crimes—but warned that he could extend those sentences if the mandatory minimums are struck down on appeal. It seems strange that the punishment for killing people would be lighter than the punishment for using a particular kind of weapon to do so. But that is just one of the bizarre results produced by the weapon-related sentence enhancements that Congress has prescribed in the name of fighting violent crime, which also can be used to impose the equivalent of a life sentence on people who have never hurt anyone.

Addendum: In case you were wondering why the guards were not charged under Iraqi law, it was because an order by the provisional government created after the U.S. invasion made contractors immune from local prosecution for work-related conduct. That immunity was lifted largely as a result of outrage over the Nasour Square massacre.