Yesterday the Justice Department indicted five Blackwater security contractors for their role in the deaths of civilians in Iraq that arose during a firefight with Iraqi insurgents on September 16, 2007 in Baghdad.
I have played a small role in the defense of the case and thought I would post a few links that may be of interest to those following the case.
The defense view of the case is as follows:
On September 16, 2007, on the dangerous streets of Baghdad, a State Department official and her security detail were attacked by insurgents using a roadside bomb. A second security team, including our clients, was sent to assist and in the process of securing an escape route were drawn into a firefight with insurgents in Nissor Square. Iraqi insurgents do not wear uniforms, and often disguise themselves as Iraqi soldiers or police to ambush U.S. forces. The tools of these insurgents include car bombs, roadside bombs, suicide bombers and automatic weapons. Faced with this enemy, these young men were fighting for their lives in a crowded, dangerous and chaotic environment. It is an unfortunate fact of war that in a country where terrorists and insurgents hide behind civilians to attack U.S. personnel, civilian casualties will result. These casualties are not the fault of our military and security forces however, but rather the fault of the insurgents who use women and children as shields, behind which they launch their cowardly attacks. Today, prosecutors in Washington, DC, seated comfortably in the safety of well guarded offices three thousand miles away from this deadly war zone, have seen fit to second guess how these decorated veterans of the military fought for the lives of their comrades and themselves. Worse they have charged these young men with offenses which could put them in prison for the rest of their lives for their efforts to save their own lives and the lives of others.
Here you can find the full press statement from the defense team about the defense perspective on the case.
There are very substantial jurisdictional and venue arguments that the defense has raised, including in particular whether the Justice Department has jurisdiction to try State Department contractors under a law designed to cover military personnel and whether jurisdiction lies in the District of Columbia rather than Utah. Here is the defense brief on these issues.
Perhaps the most interesting issue for readers of this blog may be the fact that the Government has alleged 30 year mandatory minimum prison time offenses against the contractors for recklessly discharging their Government-issued weapons (including machine guns) during the firefight. Apart from any of the other aspects of the case, that charge particularly strikes me as overreaching.
Do you intend a factual proffer of the following bolded assertions:
"A second security team, including our clients, was sent to assist and in the process of securing an escape route were drawn into a firefight with insurgents in Nissor Square. Iraqi insurgents do not wear uniforms, and often disguise themselves as Iraqi soldiers or police to ambush U.S. forces. The tools of these insurgents include car bombs, roadside bombs, suicide bombers and automatic weapons. Faced with this enemy, these young men were fighting for their lives in a crowded, dangerous and chaotic environment."
That is, does the defense assert and intend to prove that during the killing of the Iraqi civilians, there were actual insurgents with car bombs, roadside bombs, suicide bombers and automatic weapons in Nissor Square? For what it's worth, I spent some time in Moyock and Elizabeth City last week with people very sympathetic to BW, so this is not a politically oriented post.
Add in a REMF reference and it would be perfect.
Still, our society asks these men and women to do very dangerous work under very difficult circumstances. Despite everyone's best effort, honest mistakes will be made. Sometimes those mistakes will be deadly. The tragic consequences of such mistakes should not change their character from "honest mistake (with possible financial responsibility for the consequences)" to "criminal (you'll never see the light of day)". Unless it's overwhelmingly obvious these people acted intentionally, with complete disregard for the rules of war, I'd hope our policy would be to not prosecute.
This case may merit prosecution. I don't know. I'm just troubled by those who seem overly anxious to judge without a real understanding of the intense and complex dynamics of the situation.
On the other hand, there are many versions of what actually happened, some claiming that only a few members of the security detail were agressively firing thier weapons. So what portion of the blackwater guards present have been charged? Is this a narrow charge aimed at individuals who clearly acted worse than the rest, or is it merely a witch hunt to prosecute SOMEONE for the PR disaster that resulted?
this assumes two things at a minimum -
1. these (blackwater) guys should have engaged in an evidence gathering activity in the war zone
2. the situation after the shootout was conducive to the said evidence gatherting activity.
the observation about "prosecutors sitting comfortably in their offices ..." applies to some of the commenters as well.
If there were screwups, the culpable people are likely to be higher up, I feel.
Any facts at all?
And is equally offensive in both contexts. The suggestion that the behavior of individuals in even stressful situations cannot or should not be evaluated by neutral observers after the fact is anathema to the rule of law.
I'm not sure they qualify as mercenaries in the technical sense, since they were fighting on behalf of the U.S. If they are mercenaries then so too are federally contracted security guards at any given U.S. embassy.
Someone want to tell me why these guys shouldn't be prosecuted as terrorists? They are in a war zone, not in uniform, not subject to a chain of command. Hell, let's send them to Gitmo. Geneva Convention, and the US Constitution don't apply to terrorists, and they fit damn near every definition of terrorist you can come up with...except they are on "our" side.
Any facts at all?
Surely the burden of proof is on those such as commontheme who would allege such facts.
I think the allegation is that the proscutors are giving inadaquate consideration to the circumstances in which the decisions were made. The question is not wether in hindsight the decisions were unreasonable, but wether they were reasonable given the conditions as percieved by the actors at the time. The extension is that someone who has never faced a decision like that can not fairly judge the reasonableness of the decision they made... That is not to say the decision should not be evaluated, but that the prosecutors here may no be in a position to do so...
I'm not aware of any facts showing that they did anything other than kill unarmed civilians. However, that still leaves the questions of 1) whether they BELIEVED they were killing other than unarmed civilians, and 2) whether under the circumstances (which circumstances include their knowledge of the tactics used by the insurgents) their belief was reasonable. I haven't concluded the use of force was justified, but we should all keep in mind that the presence or absence of car bombs or other weapons does not answer these questions. The Blackwater guys could have shot up a VBIED believing it was a schoolbus full of kindergarteners and been totally in the wrong, or shot up a schoolbus full of kindergarteners believing it was a VBIED and been totally in the right. Whether explosives were actually present is only one piece of the puzzle, and not a crucial one.
Political prosecution to appease the Iraqi government.
I really don't see a distinction, at least in this case. It's already established (or if it isn't, please correct me) that Blackwater mercenaries are subject neither to the Iraqi justice system nor to military discipline. So if Judge Cassell's advice were followed, it would seem that federal prosecutors-- who after all make many decisions of enormous consequence involving the actions of others in stressful environments "comfortably in the safety of well guarded offices"-- could never choose to press charges on the basis of criminal conduct undertaken by private security contractors in foreign service. I'm not sure why prosecutors' ability to make the difficult decision whether to file criminal charges "comfortably in the safety of well guarded offices" is any more impaired in this case than, say, in a routine self-defense case.\
"The extension is that someone who has never faced a decision like that can not fairly judge the reasonableness of the decision they made"
And, again, that assumption would undermine the validity of the entire legal system if it were accepted. Surely judges make decisions "comfortably in the safety of well guarded offices" about any number of situations that they have never faced in real life. We trust them to do so in every other situation and I just don't see why this should be any different. Typically the question of whether a defendant's actions were reasonable iunder the circumstances is left to a jury of his or her peers; I see no reason why that approach shouldn't apply here.
I really don't think the political Left or the press are interested in splitting verbal hairs at this point. They want to demonize and destroy somebody (anybody!) associated with Iraq, and the Abu Graib stuff just doesn't satisfy them anymore. Sadly, the Blackwater folks are just custom made to fill this role. The Left knows that it risks backlash if it goes directly after our military (the way Murtha did, or the Gen. Betray Us debacle), so that leaves only supporting cast people, like Halliburton, Blackwater, etc to get raked over the coals.
(side note-- the Left is enthusiastic about hair splitting about the meaning of "is," sure... but that was an entirely different matter, now wasn't it? Extreme verbal gymnastics in support of "good" people is no crime!)
Oh, and Monty, I am not accusing you of any of this. My point is only that the Blackwater folks had better not expect any "reasonableness" from the Feds. There are people in the Justice bureaucracy that would have no problem with the idea of destroying these people to make a larger political point.
Michael Hurst, Essay: After Blackwater: A Mission-Focused Jurisdictional Regime for Private Military Contractors During Contingency Operations, 76 Geo. Wash. L. Rev. 1308, 1310 (July 2008), didn't seem to have many problems analyzing the jurisdictional defect in the government's case:
As it applies to contractor personnel, the MEJA is limited to DoD contractors and contractors of DoD subordinate agencies. See 18 USC §3267(1). Blackwater was a Dept. of State contractor. Much as I many times wished I'd had authority to give orders to DoS personnel, being a military officer didn't give me that authority. DoS is not subordinate to DoD (or, anyone else, as far as I could tell).
Last time I checked, my liberal friends (who now call themselves "progressive") assured me that the US is governed by laws and not men, and everyone was supposed to obey the law. Guess that means less and except employees of Blackwater who are hired by DoS to work in Iraq.
Without really knowing the facts, I pick the side of the Americans, unthinking defense of my guys is what patriotism is all about!
Personally I think that all gun-carrying contractors should be subject to the UCMJ as part of the terms of their contract, and this should include approved terms of engagement from the military leadership.
Not every travesty can hide behind the shiny platitudes of country and camaraderie.
Hang 'em high.
The first is that the private security forces like Backwater until recently have been largely immune from any sort of prosecution relating to any problems that have occurred in Iraq. Technically they are under our jurisdiction, but more importantly, there has been no willingness to address legitimate concerns posed by the Iraqi government and other such groups.
The second issue is that firms like Blackwater make their money off conflict. They have no incentive to see a peaceful, stable Iraq since this means an end to their main contracts with no expectation of a similar follow-up. This means that it is not in the interest of the Blackwater leadership to look too closely at abuses. This is a big reason why we should be terminating these contracts even if it means sending more troops to Iraq.
Personally, I think the question ought to be whether similar prosecution would occur if this were US military personnel rather than private contractors. If so, then the justice department has not only the right but the obligation to go after them. If not, then this is a troubling and probably politically motivated development.*
* I don't actually think it is politically motivated. I think it is simply an attempt to step back from an "anything goes" attitude regarding Blackwater and similar companies.
I also think it would be worth seeing whether the Iraqi government could pursue wrongful death lawsuits against Blackwater in cases where the company's agents acted beyond the terms of engagement followed by our military.
I suppose the alternative would be to revisit the rules which prevent prosecution under Iraqi law......
If we are going to say they are under our jurisdiction, they had better be under our jurisdiction. Otherwise we have a situation where we give them blanket authority which is not really in our interest in building a stable Iraq.
Not quite Guest 101. As civilians, as the US Supreme Court long ago held, they are not subject to trial under the UCMJ. Do you have a problem with that?
Since they are neither DoD (or subordinate agency) contractors or dependents, they are not subject to the MEJA. See 18 USC §3267. I assume you have not problem with applying criminal laws as they are written?
However, as DoS contractors, they only had immunity from prosecution in Iraqi courts because DoS certified that they were acting within the scope of their employment. See Michael Hurst, Essay: After Blackwater: A Mission-Focused Jurisdictional Regime for Private Military Contractors During Contingency Operations, 76 Geo. Wash. L. Rev. 1308 (July 2008). The Iraqi civil and criminal courts have been open and operating during most of the time since shortly after combat operations were concluded in Iraq. DoS appears to have had some difficulty recognizing that Iraq has a well-developed judicial system patterned on the French and Egyptian legal systems. Be that as it may, the DoS finding that the Blackwater employees were acting within the scope of employment under their contract is conclusively binding on the Iraqi courts. I assume you have no problem with the DoS determination?
So, do you have a problem with prosecutors making up jurisdictional standards so they can try persons who happen to be high profile due to the news media?
Do *any* laws apply to our contractors in Iraq? If not, something needs to be changed.
I fail to see how anything you cited is inconsistent with my understanding that "the Blackwater mercenaries are subject neither to the Iraqi justice system nor to military discipline." In fact, you seem to have confirmed it.
As to the jurisdictional issue, I lack sufficient understanding of MEJA to hold an informed opinion. If there is a colorable jurisdictional defense, let them litigate it like every other criminal defendant. But Judge Cassell's suggestion that it's somehow illegitimate for prosecutors who weren't present at the scene to bring criminal charges against these defendants is just ludicrous and irrelevant to the jurisdictional issue.
There are certainly ways to prosecute here, depending on the courts and the charges brought. Whether these prosecutors will succeed is anyone's guess.
no, i don't. i also don't have any facts to suggest whether you did something wrong or not.
the burden of proof should be on the prosecution. you are asking if they collected evidence in a war-zone during(or immediately after) a firefight, assuming the environment was conducive for them to be able to do so. if there had been a shootout and assuming it was legit, do you expect them to then go gather the guns from the perps they just shot? kind of like the police gingerly picking up and bagging the gun from the perp's hand for evidence?
are you sure it is legal for blackwater guys to take guns (or other evidence) from the "crime scene"?
Yes, I do have a problem with this. However, I also think we need to be looking at some way of holding our contractors generally responsible. I don't think the current approach to contractors like Blackwater is helpful.
My own preference would be for the Iraqis to sue the company into bankruptcy in US courts.....
no, without knowing all the facts, it is the noble thing to assume our guys are wrong. because, you know, they are Americans and the whole world knows Americans are just bad.
Was this a firefight with BW on one side, and armed insurgents on the other, as Mr. Cassell asserts, or a one-sided slaughter of civilians, as the government asserts, with the corroboration of the guilty plea offer of proof. Arguments about the fog of war or Rashomon or the lack of on the scene CSI-Baghdad are not particularly helpful. Re the physical evidence, the BW management are pretty smart; one can assume reasonably that they knew what they were doing when they did not preserve the shot up car which would help prove their view of the events. What actually happened?
The OP seemed to suggest that the Blackwater folks were under attack at the time. I've never heard any evidence to support that so I was just wondering if there was something out there that has not made it into the media reports I have seen.
Obviously (very obviously) the burden of proof is on the prosecution.
One would think that people concerned about the truth would focus on specific facts, rather than waving the flag around about the blackwater boys being decorated veterans and bla, bla, bla.
We'll see what the evidence shows, someday perhaps.
They signed up for high paying and high stress security jobs, where there was a significant chance that they would end up in these situations. Part of the deal with a job like that is that if you flip your lid and start mowing down civilians, you end up going to jail.
Even if the circumstances where such that most normal people would have lost it, most normal people don't sign up for jobs like that. Don't sign up for security duty in Iraq if you don't have nerves of steel. It's like getting drunk and punching someone, you're still responsible for your actions when your drunk because you got yourself in that situation.
I'll agree that it would have been much better if the rules were clear before going in (such as being subject to the UCMJ), but they must have known that shotting unarmed civilians in mass could result in prosecution.
As to your second point-- huh, apparently "mercenary" means [a] professional soldier hired by someone other than his or her own government to fight in a foreign country." Black's Law Dictionary (7th ed. 1999) (emphasis added). So assuming these defendants are American citizens, I guess they're not mercenaries. Learn something new every day.
Well, at least I can wear my Marxist Troop-Hater T-shirt in the open now.
This can play two different ways. The fact that they may be decorated veterans has everything to do with it. In terms of their ability to recognize and anticipate enemy activity, the right guys are doing the job.
On the other hand, if they are proven to have made some bad decisions, it will be harder for them to defend those due to the fact that they aren't untrained people.
Personally, if the piece is at all accurate, I can wish them only the very best. Fighting over there and/or protecting those trying to get things done over there without having their heads hacked off by a dull blade isn't easy. Mistakes will happen. Given their veteran nature, I suspect they were acting in good faith....... yes, due to the very fact that they were "decorated veterans" or whatever.
I can tell you this, being in a firefight with uniformed personnel makes it alot easier than trying to fight people who hide behind women and children.... or worse yet, trying to fight those who think it is ok to INTENTIONALLY target children or use them as literal shields. Been there..... not fun and certainly not easy.
To the ones commenting about people "sitting" back here thousands of miles from the action, remember this: THey had precisely microseconds to make a decision you are going to have days, months or years to second guess. Assuming INNOCENCE is what is supposed to be happening for those of us on the sidelines, right? I am hearing alot of folks here assuming GUILT.... I think that isn't quite right.
It is certainly true that outside and disinterested observers can and should be able to evaluate these issues; it behooves those observers, if they are in fact disinterested and without prejudice, to understand the situation and to be in possession of the facts before making a determination. And yes, commontheme, I am referring to you. You might also remember that even Blackwater employees are entitled to be considered innocent until proven guilty; your argument of "do you have any facts to suggest that the Blackwater boyz did anything other than slaughter unarmed civilians?" is completely contrary to that assumption.
Second, it's important to remember that this was a firefight in a combat zone, not a policeman handling a gang fight. The situation is different, and the rules are different, and necessarily so; that's not an issue of avoiding the "rule of law", its an observation that the law is in part situational. That's why we have the distinction between, for example, murder and manslaughter.
One other point: Paul says "...that charge particularly strikes me as overreaching." I've got to agree with the comment above: I rather had gotten the impression that overreaching, especially to make the potential penalty so onerous that defendants will plea bargain down and thereby allow a prosecutor to obtain a cheap conviction, especially in politically loaded cases, was practically codified in the Justice Department's procedures.
Then it got muddy and inconclusive.
She claimed, for one thing, that the seat was full of bullets. Of course, that can't happen. Either there was nothing, or she was speaking of spent brass, which would not have come from American weapons outside the car firing in.
This case may come to a conclusion, one way or another, but the likelihood that the facts will be conclusively and accurately known is low.
The GC puts the onus on those who choose to fight from among and behind civilians. Which means that if the BW guys were taking fire, they're innocent. It would also be useful to know, once the trial starts, if the source of the lethal gunfire can be proven. Or, come to think of it, if the source of the lethal gunfire is considered relevant.
Exactly. In fact, you can refine that and say that the BW guys were innocent specifically because of the war crimes of the insurgents, by not wearing distinguishing uniforms and by hiding among civilians.
Think that will satisfy a judge and jury?
As I discussed above (and Charlie makes similar points about), that's a false dichotomy. It's also possible (though I can't say how likely at this point) that there were no armed insurgents, but that the BW personnel nevertheless reasonably believed that there were armed insurgents.
Doesn't this kind of concede that they're mercenaries? If they're no longer members of the military ("veteran" here meaning "former"), then what other category would accommodate them?
Thus,
re:mercenarys, that depends on who you believe hired these guys, the US government, or Blackwater?
Ancient and medieval authorities agree: if a government hires you to fight outside of its usual armed forces, and your interest in fighting is pecuniary rather than patriotic, then you're a mercenary. Not that there's anything wrong with that. . . .
The allegations are that the Blackwater folks violated their terms of engagement as set forth by our government. There is a point where military behavior becomes illegal under international law (for example, look at the prosecutions of Milosevic). The only real bright line one can draw from an discipline perspective though is the failure to operate within the terms of engagement.
If there are jurisdictional problems for us to prosecute paramilitaries under contract, then we need to immediately terminate those contracts.
What were the authorized terms of engagement? Did the action fall outside them? The lack of actual insurgents might well be decisive in the latter question.
I personally take the "plain meaning" approach to intrepreting criminal statutes -- they say exactly what they mean. No arguments about "legislative intent" allowed. If they are not clear, then the perp wins and walks.
Although I personally believe that Bill Ayers was a domestic terrorist and would have been perfectly happy to learn that he and his spouse were rotting away in a super max, the fact is that the prosecutor overreached and they walked. In the end, allowing overreaching by the government in prosecutions is a greater danger to my freedom than the fact that one guy, who's bomb design was so defective that if blew up during assembly and killed 3 of his fellow domestic terrorists, managed to walk on a "technicality" (although, I don't personally consider the 4th Amendment a "technicality".)
einhverfr is absolutely correct: "However, I also think we need to be looking at some way of holding our contractors generally responsible."
This goes beyond amending the MEJA to extend it to non-DoD contractors. The way things are now, each agency pretty much gets to write its own rules for the contractors it hires in deployment situations. The MEJA was passed in 2000 to address problems with contractor personnel misconduct that was experienced in places like Bosnia. Generally that involved DoD contractors -- although DoS did have a big contract with MPRI to train military and security forces. I don't think it's an accident that the MEJA failed to include DoS contractors or that DoS was unaware of that when it contracted with Blackwater for security services in Iraq. And, DoS should have been aware of the effect of DoS's scope of employment finding as precluding jurisdiction by the Iraqi criminal courts. So, part of the bigger picture is resolving a turf war between DoD and DoS on which agency is supposed to be the lead agency in deployments after combat operations are over. DoS has generally won that turf war -- and so it could hire firms like Blackwater to provide it security rather than be subject to restrictions that DoD would place if it or its contractors were providing DoS with security personnel.
Those, however, are different discussions. Here, as I understand this post, the issue is whether the Blackwater personnel violated a US criminal law. Given the restrictions on the scope of the MEJA, I believe that the answer is "No."
Still, its a law that's had very little review by the courts or legal commentators. Other, contrary intrepretations are certainly welcome. Guest101, among others, is asking basic policy questions. There's nothing wrong with that when discussing the MEJA.
Why are, for the purposes of GC, the streets of Bagdad in Sep 2007 different than the streets of any violent city in any part of the world?
There was no "war" going on in Bagdad in Sep 2007, and in any case BW was not engaged in any combat operations for the account of the US or the Iraqui government. BW provided private security for the DoS employees, just like other private companies provide security for executives in companies (including mine) when they (me included) travel to places deemed dangerous (such as Lima, Karachi, or Bogota).
If my bodyguard fires someone he'd better know what he is doing, and he'd better be ready to prove to the local authorities that it was legitimate defense. BW was not engaged in any military operation that I know of at that time, and if they were, then they were acting outside of what could reasonably be considered the scope of the DoS.
Any time a bodyguard or a security guard kills someone while engaged in his security job, it is reasoble to expect an investigation, and, likely, a judicial process. Ideally, in this case, that process should take place in Iraq, where the deaths occurred, but, if not there, definitely here. Being a contractor of the US government should not make you immune to investigation and prosecution by the legitimate authorities.
It is also vaguely worrying though that the defense seems to want to simultaneously play upon the sympathies owed to military servicemen while forwarding a jurisdictional argument that the Blackwater soldiers are NOT military.
Standard defense dreck. Procecutors are never at the scene of the crime.
Security guards?
einhverfr: What were the authorized terms of engagement? Did the action fall outside them? The lack of actual insurgents might well be decisive in the latter question.
I would be stunned if the ROE requires absolute certainty that hostiles are present before force can be used in self-defense. The proffer says that "the Mission Firearms Policy also recognizes that the reasonableness of a belief or decision must be viewed from the perspective of the individual on the scene, who may often be forced to make split-second decisions" (at para 6). This strongly suggests that the ROE for this mission, as ROE generally do, required a reasonable belief based on information available at the time rather than perfect knowledge.
Tell that to the insurgents and those being blown up by IEDs.... oh, and those disarming those IEDs and those going house to house in search of the builders of those IEDs..... oh and let us not forget the victims of the dull blade wielded by the likes of Zar-cowardly.
This too is classic fed behavior, and is exactly the strategy they followed with the two purported anthrax perpetrators. Steve Hatfill stood up to them, sued them back, and they dropped the charges against him while settling his civil suit. Then they drove his replacement as patsy to suicide, because the guy was not as tough as Hatfill.
The practical problems are rooted in the nature of the conflict, notably that the enemy, which includes the government of Iran, intended to, and did, fabricate situations like this for political advantage.
So proper defense tactics here would be to require the prosecution, i.e., the federal government with ALL OF ITS INTELLIGENCE RESOURCES, into releasing every last bit of intelligence information it has on the entire vast conspiracy of Al Qaeda, the Iranian government, the Sadrite militias. and all their associated factions and even local Iraqi criminals, to the defense.
I.e., this is the typical defense tactic for espionage cases, but cubed instead of merely squared.
For the tiny-brained folk: The defense here is that the Iranian government, with its allies in Iraq and particularly those in the Iraqi ministry whose HQ building this incident took place close to, deliberately created a real or apparent attack on the State Department convoy protected by these Blackwater Security Guards, and then cleansed the scene of evidence incriminating their people while planting evidence tending to incriminate these Blackwater Security guards.
Aided the while by their friends and allies in the Democratic Party, one of who is former Senator B.H. Obama, Dem. Illinois.
If private bodyguards are also supposed to engage in hostilities beyond protecting their customers, then anyone has the right to engage in hostilities against anyone, including the Iraqui insurgents.
richard aubrey says;
Here's the thing these commenters are missing. Blackwater is guilty of the exact same violations of the Geneva Convention. They don't wear distinguishing uniforms, they are not subject to a military chain of command, and they are not part of the armed forces. Why are they fighting? To insure people can get back to a safe base? You don't get self-defense when you go insert yourself in a fire-fight, and even taking everything the criminal defense lawyers state as true, they went and inserted themselves in a firefight, for the express purpose of getting involved (granted they had other motives, but they knew they would be involved in a firefight).
You win today's unclear on the concept award.
The purpose of bodyguards is not to guard their own bodies. Their purpose is to protect the bodies of their clients.
They cannot do this by remaining in one safe location while their client goes someplace else.
They may only accomplish their mission by accompanying the body they are supposed to guard.
This is why they are called bodyguards.
Sometimes the bodies they are guarding go to dangerous places.
Almost everyplace in Iraq was dangerous for State Department personnel.
It was especially dangerous for State Department personnel near the buildings comprising the headquarters of Iraqi ministries controlled by Shiite factions allied with the government of Iran.
The State Department personnel whose bodies were guarded by these Blackwater Security guards got too close to that building. They walked into a planned public relations ambush.
Conducted with live ammunition.
No State Department personnel were killed or wounded in this incident. These Blackwater Security guards successfully performed their mission.
Now they are being punished for doing their job.
You think Hattio gets it now?
If there is no jurisdiction to charge Blackwater agents with crimes when they step outside agreed-upon terms of engagement, then I believe we have obligations under international law to ensure that we get real, rock-solid legislation through that will hold our contractors responsible.
Anyone DOES have the right to "engage in hostilities" (that is, use deadly force) in self-defense. Blackwater's story is not that their personnel were going out looking for people to attack, but that their personnel were escorting their clients from point A to point B and were forced to defend themselves against a deadly threat (or what they reasonably believed to be a deadly threat) along the way. That IS something anyone has the right to do. The main question is just whether the force used was excessive or unreasonable under the circumstances.
I get what bodyguards are. I also get that calling them bodyguards does NOT give them immunity from generally applicable laws. Ask Snoop Dogg's bodyguard who went to jail, and numerous other bodyguards of the famous (mostly famous rappers). You guys keep talking as if, because the insurgents broke laws, Blackwater could do whatever they wanted. Sorry, doesn't work that way. Just because you're a bodyguard, doesn't give you a license to kill. Just because you're a bodyguard in a dangerous area doesn't give you a license to kill. Just because you're a bodyguard in a dangerous area with people who want to do harm to you and/or the body you are guarding, doesn't give you a license to kill. So, yes, I'm clear on the concept of a bodyguard. As a legal matter, so freaking what???? That's the concept that you are unclear on.
Without knowing the facts, and with prosecution pending, I'll assume innocence. They may be guilty, but no need to rush to that conclusion. Defense of the accused need not be unthinking, and it seems you might be projecting the patriotism angle on some other comments. Civilians died, but we've all read stories of combatants counted as civilians and tampering/staging of scenes after violent events in the Middle East. Perhaps a jury would find the contractors' testimony credible, and recognize that the area was not secured to preclude removal of weapons, etc.
[In all seriousness, I really do think it's possible they will be found innocent. See, e.g., the Haditha guys. But to preemptively declare this a railroading is silly. That is the point I was trying to make]
This isn't the streets of the United States. Apples and oranges my friend.
You said, "...Just because you're a bodyguard in a dangerous area doesn't give you a license to kill. Just because you're a bodyguard in a dangerous area with people who want to do harm to you and/or the body you are guarding, doesn't give you a license to kill..."
Yes it does, if what you are doing is defending yourself or those you are around. In this case, if the defense statement is anywhere near accurate, and I have no reason at this point to call them liars, the first group with the DoS personnel were attacked by an IED. These guys were in the second group that was called in to assist. They were fired upon ("drawn into a firefight") and, obviously, returned fire.
You aren't drawn into a firefight by someone yelling "here kitty kitty kitty." The fact that both groups were assaulted first, and with deadly force, means deadly force is now authorized...... simple really. If, as proper bodyguards, they were securing an escape route for those attacked by the roadside bomb, they couldn't "run away" either. "Securing and escape route" means what it says..... keyword: SECURING
Again, if the defense brief is anywhere near accurate, this is a no-brainer, even for a non-laywer like myself.
What is troubling, however, seems to be the position asserted here that, as of late 2007, the BW guys could do anything they chose, up to and including using deadly force, on any Iraqi citizen, no matter how young or old, peaceful or not, going about their own business anywhere in their own country, because of the "war crimes" of the insurgents, who may or may not have been connected with Iran. If that misstates your position, please clarify. If not, it certainly gives the lie to the claim that the country is a livable, much less peaceful, place to be, because any person is subject to killing by any security guard for any reason. Is there any limitation?
I don't quite buy the point you are trying to make regarding self-defence. I don't think you can argue, for example, that soldiers have a moral right to self-defence when it counters the terms of engagement they have been given. Nor can self-defence be used to justify military action which does not adequately seek to discriminate between combatants and non-combatants.
In this capacity, Blackwater agents are acting in the capacity of soldiers more than civilians, so I don't think "self-defence" is an absolute defence. Instead I think the question ought to be whether they overstepped the line based on the terms of engagement they were handed. If the terms were (as reported) that discharge was not authorized except as a last resort in situations of self-defence, then the the question of what they believed was a threat is largely irrelevant except whether the threat was such that firearms use was justified as a last resort.
That's true, but the dangerousness of the area you're working in combined with your knowledge of the tactics being used by the bad guys can be very relevant to whether your beliefs about an apparent threat were reasonable, should those beliefs turn out to be mistaken. If you're in a neighborhood where a rash of stabbings have been committed by assailants dressed up like little old ladies who sneak up behind their victims in the dark, that would be important to know if you end up accidentally shooting an actual little old lady who quietly approaches you from behind in the middle of the night. Obviously, it doesn't necessarily make the shooting reasonable, but it makes reasonableness more likely.
Keep beatin' up on them straw men.
For the tiny-brained folk: Prosecutions which rely on enemy agents for evidence and as witnesses fail at trial, if not earlier. This happened with the Haditha prosecutions. It will happen here too. Except for those accused who can be intimidated, or bankrupted, into plea bargains or suicide.
Sarcatro
I agree with you on that.
To the contrary: U.S. rules of engagement consist of Standing Rules of Engagement (SROE) promulgated by the Joint Chiefs of Staff and supplemental ROE promulgated by the Chiefs or lower commanders, applicable to specific types of operations, specific theaters, or specific operations. The SROE state that nothing in them or in any supplemental ROE should be interpreted to limit the inherent right of self-defense.
Nor can self-defence be used to justify military action which does not adequately seek to discriminate between combatants and non-combatants.
True, but that raises a different set of factual questions. Whenever self-defense is applicable, you also have to ask whether, under the specific circumstances, the people acting in self-defense used force proportional to the thread and adequately discriminated between legitimate targets and civilians.
I pretty much agree with the rest of what you wrote. I don't think it really conflicts with anything else I've said. Of course self-defense is not an absolute defense, it must be reasonable based on the circumstances. My point is that it can be reasonable even if in hindsight it was not objectively necessary. That is, even if it turns out that no insurgents or weapons were present.
Wrong. It does give you a license to kill. But not, say, to call in an Arc Light.
The question is whether circumstances were such that a reasonable bodyguard was justified in believing that the response was appropriate.
RPT. Who's asserting that? Not BW and nobody here.
Where's agency law on this? DoS hired these guys. Are they agents of DoS? If so, doesn't DoS take some hits here?
Secret for the non-lawyers: defense briefs a suppose to read that way.
Evidently Iraqi civilians are now enemy agents?
It doesn't give you a license to kill. It gives you a license to use reasonable force in self-defense or defense of others. Just because some insurgents somewhere use roadside bombs, or car bombs, doesn't give you the right to light up any car that approaches...or any civillians who happen to be nearby. It definitely doesn't give you the right to drive against the flow of traffic, then blast cars that approach you (driving correctly). It also doesn't give you the right to use grenades indiscriminately if you think you have a specific threat against you.
RPT,
Keep beatin' up on them straw men."
How is asking for the defense proffer of the facts doing this? Why do some of you guys revert to snark so reflexively instead of discussing the issues?
I think there are plenty of cases where self-defence is not an excuse for firing. For example, if you come under fire and are able to determine that the attack is of friendly origin (a case of mistaken identity), and, say, the attack has left you without communications. Firing back still might get you in trouble.
Similarly if under orders to hold fire, I don't think you can just fire back because you are under attack.
Hence it is more limited than it is in, say, Seattle. I am not saying it doesn't exist.
However, nobody is really arguing the bit about whether there is some right to Blackwater's agents' self-defence. The question is whether they went beyond that. IMO, establishing a record of these facts is what a trial would be about provided that there aren't jurisdictional loopholes that prevent any accountability or our contractors.... If so the laws need to be tightened immediately to comply with our obligations under the Geneva Conventions.
However, there is a problem here that nobody is talking about. The rule on jurisdiction relating to these things is designed to keep our military and the agents of our government from being subject to politically motivated prosecutions in Iraq. There is every reason why the DoS might want to certify that they were operating in the scope of operations in their employment to protect this interest even if they stepped well outside it. This makes the DoS finding largely useless IMO.
Being under attack gives you the right to use justifiable force in self-defense. In the circumstances under discussion, the question is whether the BW guys felt, reasonably, that using their weapons was reasonable.
Nobody--nobody--is saying either that indiscriminate firing is justified, nor that any old Iraqi walking down the street is fair game.
Give that one up.
And look up Arc Light under "big" or "probably unreasonable under the circumstances", as well as "did not happen", not to mention "hypothetical".
But this case is symptom of a larger problem, which is the wholesale use of contractors by the federal government to perform tasks that, in days gone by, were considered an integral government function. My belief is that the US government's wholesale use of private security personnel, such as Blackwater workers, in Iraq is a bad idea. I want the people who provide security to DOS employees to be directly accountable to the US government. US soldiers would do quite nicely. That way it is much easier to hold them accountable for their conduct, training, etc.
Private security forces are, in the first instance, beholden to the company that "employs" them. Blackwater, as a company "employing" these security forces, has a loyalty to its shareholders that is higher than its loyalty to the US government. There in nothing inherently evil in such a situation, but I think it is better for the government it if uses its own employees.
I use the term "employs" in quotations marks because of the widely reported use of "independent contractors" by Blackwater. I don't know much about the laws under which charges are being brought against Blackwater workers, but I do have quite a bit of experience with worker classification issues in the context of dealing with federal and state taxing authorities. Blackwater's efforts to minimize costs by treating the workers as independent contractors, while understandable from a standpoint of profit maximization, creates accountability issues that can arise in a variety of contexts. If Blackwater is not "controlling" its workers, why is the US government hiring Blackwater instead of hiring the workers directly? If Blackwater is "controlling" its workers, why is it treating them as independent contractors?
If I were the DOS employee whose safety was being protected, I would prefer to be guarded by someone whose first loyalty is to the USA, not to some corporate entity, assuming that US soldiers have the same competency level as private contractors.
If the competency of US soldiers is inferior to the competency of private contractors, that is a problem that needs to be fixed. Either hire the more competent workers directly or improve the quality of US soldiers, or both.
100% agreed. I would however go further and point out that companies like Blackwater have a perverse incentive to destabilize the country because this is where they make their money. This is not true for the soldier in the army or marine corps.
I have been an advocate of getting ALL the contractors out of Iraq for some time for this reason, and I think that failure to do so will continue to prolong our task there.
Of course, on the legal issue, I think we DO need to pass laws to hold people accountable for the kinds of things the BW guards are accused of doing, if this is not covered already, though this is less of an issue regarding Iraq because the new status of forces agreement largely takes that job off our hands and places it in the hands of the Iraqi courts starting next year.
No.
That's exactly the problem, though. Especially when it concerns conditions of armed combat in countries where the U.S. is at war, the first priority should be to lay all the facts before a neutral venue. Instead, prosecutors want to avoid putting the case in front of a judge and jury so that they can send these guys to prison on the cheap. That may be business as usual at the Department of Justice but, first, the machine gun charge is ludicrous and I would imagine a judge will toss it. Second, given that these guys were acting in a somewhat official capacity, this overcharging just looks like a way to throw them under the bus to avoid all the facts being laid before a court.
I say this as someone who has no opinion on whether they are guilty or not. If they fired on civilians without a good reason, by all means prosecute them for manslaughter but do so honestly and fairly.
The BW crew facing charges were not guarding anybody. Upon hearing of a bomb somewhere in Baghdad, they drove, on their own, from a base to a large public square. They didn't have any DoS people with them, they weren't escorting anybody, they were not guarding anybody. They were acting like soldiers, not bodyguards.
A very likely scenario is that one BW guy started firing when a car got too close to him, and then the rest of the crew started blasting away upon hearing the initial gunfire.
I get the impression the second party was reinforcing the first group, which had the DoS folks with them.
So the op would have been expanding the guard role with more guys and firepower.
So your implication is that BW is not allowed to send reinforcements to a detachment in trouble, or that the reinforcements are not allowed to shoot back if they are attacked on the way to the first group, but not yet there.
Either of these would be silly, but your implication leaves nothing else.
Where do you get that impression? The bombing did not occur at Nissor Square, which is where the BW crew had stopped. The bombing occurred about a mile away. The BW crew in question were not at the same location as the bombing, and were not attempting to reach that location. They were trying to stop traffic moving at a large square that they thought might be an "escape route" for the bombers.
Restated, their actions in this situation were not those of bodyguards or private security, they were actions normally performed only my military or police.
Okay. Given your assertion, we have a problem:
This isn't war. This is war. The GC applies. The GC does not apply.
The AUMF is illegal. The AUMF doesn't authorize what is going on. The AUMF might be legal but we don't mention it.
The Gitmo Goons are POWs. They're common criminals. They're both. They're something else.
The war in Iraq was, at the time, an insurgency, a resistance to occupation, a civil war, an illegal occupation of a nation. Or some combination.
The WOT is a war, so the enemy fighters have to be treated like POWs, but since it has no foreseeable end, they have to be treated like...criminals, or something. Or it's not a war, it's a messed-up, overdone alternative to what should be strictly a matter of criminal proceedings.
You see my point?
With all the confusion as to what, exactly, is going on, in the legal or political sense, it doesn't make much sense to hold BW to the old black-white model we haven't actually seen since WW II.
Things have changed, and not all of them in the US or on the ground in some exotic (anarchic) location. For example, the British Navy cannot pick up pirates in Somali waters for fear of having to take them to Britain under their asylum laws. Mark Steyn made the point that the best way for an immigrant to get into Canada fast is to commit an act of terror in his home country and then apply for asylum for fear of prosecution and, possibly, torture and the death penalty.
Given a certain looney extension of bad ideas to worse ideas and a bureaucratic and PC reluctance to look at the results, strange things are happening.
To presume that we have a pretty simple law someplace which covers the BW incident, or should, or should cover PMCs in the future, is, to be euphemistic about it, nuts. Not in this world.
So, my take on the incident is that the BW guys were there. They were or were not attacked. If they were not attacked, nor had reason to believe they were, or if they were attacked and used grossly disproportionate force in response (which is not proven by the deaths of innocents in a firefight) then they're liable. But there is nothing to be said, in this nutty world where Islamofascists live on the Brit or Canadian dole while spewing hate, where pirates are potential asylum claimants, where Somalis in the US litigate to avoid having to haul booze in their cabs (put up to it by local mullahs) about whether BW can be someplace legitimately and not someplace else.
I have no doubt that somebody had a contract for the employment of BW and other PMCs. If it did not provide for unforeseen contingencies, then it does not fit in the real world.
Maybe they're liable for breach of contract.
In any event, they can be reproached in some fashion for being someplace somebody thinks they should not have been--show me the law--and responding inappropriately when attacked. The first is a matter of personal opinion and the second is a matter of fact with too few indisputable facts.
Now. Let's say it was US troops. Dead people? Just as dead. Overreaction? Maybe yes, or no. No different questions except that for some, PMCs are icky.
"What justice will the families of slain Iraqis have access to? Don't they have rights too?"
No."
For this how many have died? That the Iraqis have no rights?
Shouldn't it come down to this: If Blackwater guards massacred innocent civilians on a knee-jerk reaction or for a sick kick, they should go to prison. But if they did it in a good faith, self-defense effort, they should not.
I understand that the lawyers will make jurisdictional arguments, social psychology arguments, Geneva Convention arguments, and all sorts of other trial tactic moves. And that's why they get paid. Fine. And to a degree that's the point of an online message board, too.
But can we not agree that murdering people is bad, and not murdering them is good?
Secondly, they were somewhere they should not have been, because they were ordered not to leave the Green Zone.
Thirdly, they were performing tasks that were not in their mission. Their mission was to take defensive action to protect DoS personnel, they were not doing this.
Lastly, the amount of force they used was more than they were authorized to use.
Note that the government concedes that 3 of he 17 dead are "good" kills, but the other 14 are not. Also, the government is only charging 6 people out of the 19 there, stating that only 6 of 19 opened fire. Had they been actually attacked, do you suppose that all 19 would have defended themselves? It''s hard to believe that 13 of 19 would choose to not defend themselves in the event of an actual attack?
It is highly probable that these six are, in your words, liable. They were wrong, and aside from being directly liable for their actions, they have to be held accountable for the great harm they did to the overall US mission in Iraq. Hard to win hearts and minds when the hearts and minds are in the corpses of doctors, old ladies and children.
Mr. Cassell's statement does not leave the reader with sufficient information to draw a conclusion as to the legitimacy of the acts at the place and time.
We have heard that the Iraqi government is behind the prosecution. Perhaps it is better for the men to be tried and acquitted here than to risk having to return to Iraq under some sort of status of forces arrangement and face Iraqi "justice".
The zealousness of the prosecutors may be posturing before the trial to enable them to get a satisfactory plea agreement.
As one who served in a similar capacity in another hot spot, I have the greatest sympathy for these men.
Not enough. I have followed a wide variety of news stories since the incident. I generally thought that immediately afterwards the Iraqi government and the families involved should have filed wrongful death suits against BW in US courts since the previous regulations said they were under our law and jurisdiction.
True. Which is why I fully support a trial. Barring jurisdictional issues, it will at least create an official version of events which will hopefully offer some relief ot the families of the victims.
Under the current arrangement, contractors are under US jurisdiction and law if they are engaged in operations on behalf of the US government. This will change as of January 1, and contractors (though not US military personnel) will be subject to Iraqi law for any incidents which occur after that point. This is a very positive step IMO because it overrides the perverse incentives which occur when we hire contractors in these sorts of situations.
Basically, this means that if the same thing were to happen next year, the BW employees would be facing Iraqi courts and justice systems.
From an international politics perspective, I think it would be better to convict the BW employees. However no benefits are worth setting aside the rule of law for. This being said, if what the BW employees are accused of doing is not illegal, we NEED new legislation, IMO, to fulfil our obligations under international law.
I have been around for long enough to have watched what the media report as absolute fact be dis-proven innumerable times. I'd prefer to presume the men innocent until proven guilty or acquitted.
Obviously the intended reading of the defense claim is that Iraqi insurgents are known to commonly blow up cars etc.. and given they don't wear uniforms the defendants were behaving reasonably in responding to what they felt was a threat.
--------
As for everyone advancing the idea that this is just some lawyers in washington hanging military men out to dry because of their unfamiliarity with combat I don't think the evidence supports you.
I mean this is hardly the first controversial engagement Blackwater was involved in nor (I doubt) the first time the private guards hired by the military have been accused of killing civilians. Moreover, It's not very plausible that this prosecution was something attorneys in washington just decided to do on their own. I have the strong sense that this bubbled up through the military or other part of the US government working in Iraq and went through the very highest levels of our government.
Basically my impression is that our people in Iraq must have felt these Blackwater guys had likely behaved very badly for this to have gotten as far as it has. If you can say one thing about Bush it's that he isn't afraid of being unpopular and tends to be loyal. I very much doubt this trial would be happening at all if there wasn't reason to believe these guys behaved badly.
----------
I mean really given how long we've been in iraq now and how little supervision or accountability these security forces have it would be surprising if their hadn't been some incident like this. I mean there is a reason the military insists on such strict discipline and exacting standards of behavior and dress. Not only is it important during actual firefights but constantly being under threat creates a strong hatred of your opponents and there is often a temptation to be just be safe and ask questions later, after all it's just X's if you are wrong. Sure, these guys where ex-military but from what I've heard their discipline had gone out the window a long long time ago.
Where is the evidence that they were not attacked. When was it gathered.
I do recall reading and hearing immediately after this incident that a video of the event was made from one of the Iraqi government building security posts. If indeed the buildings in the area were controlled by Iraqi/Shiite-Iranian backed faction (I think this was the Interior Ministry) why no video?
But when the Haditha prosecution is characterized by a lone Time reporter getting information from a stringer working for the terrorists and the NCIS withholding exculpatory information, you can no longer say there is any sense, any continuity, any consistency.
After the Panama fight, the Army court-martialed a sergeant who had shot a prisoner who'd come up with a pistol and was about to shoot Americans. The sergeant was acquitted, but it looked as if it were one more sacrifice in the direction of the left. Or it was the JAG guys without enough to do. Or it was something else, but it was not common sense.
All contractual obligations can be breached under certain severe circumstances. The question becomes whether a certain case rates as severe.
"mission" "orders" "contract". These mean, in current circumstances, anything anybody wants them to mean.
Under attack can mean thinking something is about to happen, while shooting back at a guy shooting at you can be characterized as overreaction. It all depends on the point of view of the person making the charge.
There are two questions, and only two questions. Were the BW guys under attack? If so, was their response proportionate?
If the BW guys were under attack, that means some of the shooting came from the terrorists, which means some of the civilians may have been killed by the terrorists.
Has that been determined? Has anybody bothered to ask?
Check out the doctrine for reacting to an IED sometime. Part of it includes trying to spot the guy who set it off, and worrying about another one he might be preparing to detonate.
There is far too much unknown and far too much which, being thought to be true, is untrue.
Where did you see/hear this evidence, specifically? I would love to read and/or hear it.
You said, "....Not only is it important during actual firefights but constantly being under threat creates a strong hatred of your opponents and there is often a temptation to be just be safe and ask questions later...."
Have you ever been in uniform and in a firefight/war? Me thinks not, because if you had you would realize the many mistakes in what you wrote. I never "hated" any enemy I fought. THAT would be the norm, not the exception. In fact, we are now fighting FOR a people I was fighting against during Desert Shield/Storm. The attitude of hating makes you careless in situations that call for swift, calm action and a "restful" sight picture. It is bad enough to have to deal with "fear," adding hate to the mix would just be stupid in the extreme.
There is never a "temptation to be safe" by just blowing someone away. That isn't to say it hasn't happened, but it is not the norm..... not by a very long shot. In fact, that would be referred to as murder, even in the military.
Holding someone in restraints is fairly common, for safety sake and until the person is positively identified to be friendly. Shooting them is NOT common nor is it "ok" without provocation.
Where do you get this stuff?
The result of the Haditha charges were a few plea bargains and acquittals or dropped charges against everyone else. Plus exposure of the incident as an enemy media ambush.
I predict the same will come of this Blackwater Security incident.
The real tip-off is the involvement of senior elected Democratic officials in the outcry. When that happens, we know it was an enemy media ambush.
Yeah, this is different from normal military ops.
Do you recall reading, of WW II, of any soldiers suing sitting congresscritters for slander about unfounded accusations of cold-blooded murder? And having a hell of a case?
My point, "rambling" if you wish, is to say that there is no organizing principle here. There are velleities (does that mean "weak wish"?) about some organizing principle, but none in evidence in the real world.
No. I think they are accused of doing so. Judgement for what actually happened should be suspended until the facts are tried in court.
The fact is that we don't actually know what happened. We know what the accusations are. We know what the defence has to say. Until there is a trial (whether criminal or civil), there can be no confidence that we do know what happened.
Hence my attempts to deal with what BW agents were accused of doing rather than attempting to deal with what they did.
BTW, BW has further made a mess of this by offering $20k "gifts" to the victims' families but no apologies or compensation.
My sense is that this is a big reason why the recent SOFA gives Iraq jurisdiction over US contractors in cases like this for any incidents occurring after January 1, 2009
You ought to know that attorneys jump on apologies like starving sharks on chum as acknowledgment of fault.
BW knows it, too.
But you pretend there's something nasty there. As if the rest of us don't have a clue.
The main stated objection to the US being a signatory to the Rome Statute (establishing the ICC) is that we are afraid of politically motivated prosecutions against our forces. However, a case such as this raises some very serious questions about our commitment to international law.
If the courts find that there is NO jurisdiction or applicable law governing DoS contractors in cases like this, then we have an obligation to pass laws to close that jurisdictional gap. This is not a matter strictly of whether BW employees are guilty or innocent of the crimes of which they have been accused, but a matter of whether we even have governing law. In short, if what the BW employees are accused of doing isn't a crime punishable by law, it needs to be.
If you believe that the BW employees are innocent, you should hope that the court will find that they are covered by applicable laws and that they are innocent of violating them. If, on the other hand, they are guilty they should be found so and sentenced.
US war crimes criminal law only establishes crimes which are things such as torture, biological experiments, and the like. Genocide is a crime, but lesser crimes of war under international law are ONLY crimes under the UCMJ, not the standard criminal code. If we are going to use private groups in this way, they need to be properly regulated.
The other point I am making is that it is not in the financial interest of these contractors to really contribute to a stable Iraq. This doesn't mean that they are going out and deliberately destabilizing it, but they have no incentive to be careful in this way in the sense our soldiers do.
The cost of not apologizing will now be that starting in January, any offences under Iraqi law committed in Iraq by US contractors will be subject to Iraqi courts with no additional control measures.* My point is that not apologizing may have saved them some lawsuits now, but it has weakened their legal position for any future incidents which may occur.
* Additional control measures apply to US armed forces acting outside the line of duty, but none are included in the SOFA for contractors.
ForWhatItsWorth, TruePath is a grad student at Berkley. I'm sure he's smart enough (in the book sense) and sincere. However, in reading his comments, always keep in mind that they are those of an intelligent person whose theoretical knowledge is untempered by experience.
PubliusFL, your reference to the SROEs lost me. The BW personnel are DoS contractor employees. Under what authority would the SROEs be applicable to them?
Given the definitions in the MEJA, 18 USC §3261, et seq., I'm trying to understand how there is a crime under US law, even assuming that everything alleged is true.
An illustration: You go to Russia, and on a street corner, you pull out your trusty Glock and shoot some random person in the head, killing him. Murder? Yes. Murder chargable in a US court? No. Take the example one step further: Assume the same, but the reason for your trip was that you are employeed as a bodyguard for a GM executive who's looking for a place to spend some of the $15 Billion. Same answers. Change the example slightly: Assume that the reason for your trip is that you are a contract security guard for the US Dept. of State? Again, same answers. I fail to see why the answers are different when "Iraq" is substituted for "Russia". The difference in treatment is that for DoS contract personnel in Iraq, under the existing legal standards, when DoS found that the BW personnel were acting within the scope of their employment, that finding was binding on the Iraqi courts and the BW employees were immune from prosecution in the Iraqi courts. There being no similar legal prohibition applicable to Russian courts, the murder charge would be tried in Russian courts. Here, however, I see no argument that the difference in the legal standards vis-a-vis Iraq and Russia changes the applicable jurisdictional standards in the MEJA. The MEJA governs criminal jurisdiction of US District Courts as to certain crimes committed outside the US. Still, unless somehow there is some form of DoD command and control over DoS contractor employees, I fail to see how the SROEs are relevant to the BW employees in Iraq.
I ask this because there appears to be an underlying assumption in many of the comments that the Geneva and Hague Conventions and/or UCMJ is applicable to DoS contractor employees. I know of no authority for that.
You believe that stuff? That apologizing would have prevented the law?
What kind of juries are you used to dealing with?
Sheesh.
Thanks for the info. I will do just that. :)
I take it from your moniker that you were or are currently a JAG officer? If so, nice to meet you. Well, even if you aren't it's still nice to meet you.
As you could tell from my response, I am certainly "experienced." I retired in 97 after just over 25 years of service. Nice to be retired, but I do miss working with the fine people I knew while I was in...... I do miss that part. I have met some very fine people as a civilian, but it isn't the same thing, as you likely know. Gawd, I loved my guys! I don't take too kindly to people putting thoughts in their heads that I know were never there in the first place..... thus my response to TruePath :) :)
There is one big difference. The previous regulations said that contractors, armed forces, etc were under their home jurisdiction only. I think the CPA rules could be interpreted as extending US jurisdiction to Iraq in a way that would not be present in Russia, especially in light of our obligations under international law.
The certification of the DoS in this case means that the matter is exempted from Iraqi prosecution and subject only to US jurisdiction. Further, this is beyond diplomatic immunity since the Iraqi government doesn't even have the right to tell BW to go home.
The fact though is that if the contractors are our legal responsibility, we need to be able to hold them legally accountable. If we can't do that, then we need new laws or we need to ensure that future arrangements do not make them our legal responsibility (for example the recently ratified SOFA).
Do you believe that there should be fewer laws governing Blackwater than govern our armed forces?
I see no reason why Congress could not pass a law stating that the UCMJ would apply to contractors fulfilling paramilitary rolls, but providing for criminal courts, rather than court martials, to try the cases. I think this would be the best way forward.
This way the UCMJ could be applied to paramilitary contractors like Blackwater, but in federal, rather than military, court.
Hmmm, I don't think that would work. Many of the articles in the UCMJ really have application to civilians. Things like "conduct unbecoming...." and other general catch-all articles. I think it would have to be something separate due to the nature of the beast. Also, maybe wfjag can clarify, but I do believe that the UCMJ can only be prosecuted in military courts and not federal courts with civilians running the show.
Just a thought.
Sorry about that.....
I am for an organizing principle. I have been trying to make the case that, in the real world, there is none. I guess I'm presuming there may have been one, but at this point the entire field looks like a Jackson Polack piece that got left in the rain.
So to argue that it is somehow important to the case that the BW guys were trying to stop the escape of some terrorists who were attacking other BW guys and that it was outside their "mission" is, to be charitable, silly.
This is not legal advice, but I have found appropriate apologies (outside of, say, car accidents), are a very useful way to diffuse litigation. Often people (but more often companies) use litigation as a way of establishing who is to blame than as a way to make good on damages.
This is not what the indictment alleges as far as I can see.
Once again, there are two questions here which need to be separated:
1) Is what the BW folks are accused of a crime?
2) If so, are they guilty?
My posts address the first question only. Only a careful approach to all facts involved can answer the second. The indictment argues that this was done "upon a sudden quarrel and heat of passion." Self-defence might be an affirmative defence, but that is something which is not before the grand jury.
If the prosecution is right about the facts, and the defence is wrong, would you then feel comfortable with a conviction? That is as far as I am willing to go.
There is a marvelous opportunity here for criminal defense counsel to demand discovery from all of US intelligence about the nature and extent of Iranian operations in Iraq, and to expose it in open court.
This is further evidence that the prosecution here is a "show trial". It is not intended to produce convictions at trial, because then the prosecutors would have to provide incredibly secret intelligence information as discovery and watch it on television during the trial. It is obvious that charges will be dismissed against those defendants who insist on trial.
This Blackwater Security prosecution is only intended to produce propaganda. The only convictions it might produce will come via plea bargains by psychologically weak and vulnerable defendants. The prosecutors would deem it a victory if they can induce any such defendants to commit suicide too.
The government's prosecution of Steve Hatfill and his replacement as scapegoat, who did commit suicide, and the failure of its Haditha prosecutions, are reasonable evidence of the government's bad faith, lack of credibilty and lack of legitimacy in these sorts of prosecutions.
The Blackwater charges here are clearly political, and highly likely utterly devoid of merit.
Dear einhverfr, exactly. However, you miss the next step -- which is the issue in the pending case: Under what authority does a US District Court exercise criminal jurisdiction over an alleged murder, or illegal use of weapons, by DoS contractor employees in Iraq? Given the definitions in the MEJA, I don't see any jurisdiction in this case. There's a big difference between "there ought to be a law" and "there is a law." You shouldn't try to prosecute under an "ought to be" law.
And, in amending the MEJA, thought needs to be given to other questions. One of the main ones is resolving the DoD/DoS turf war after there is a declaration that combat operations are over. You may recall that DoD was ordered not to prepare Phase IV (post combat operations) contingency plans for Iraq. That was supposed to be handed by DoS. A lot, possibly most, of the problems that developed in Iraq, including those that fed the foreign fighters led insurgency and Iranian involvement, arise from the lack of real planning (and inability to execute the few plans that were developed) by DoS and the DoS people who served in the CPA. There was so much concern over potential bad PR in having a "military occupation government" that DoD was essentially cut out of the process and the authority was given almost entirely to DoS. That military occupation governments worked quite well in Germany and Japan after WWII was overlooked. However, as far as I am aware, the CPA is the only example of DoS-led post-combat occupation government. Whether we learned from this -- or even identify root problems -- I am not hopeful. The issues require a great deal more than the bandaid of amending the MEJA, or attempting show trials of Boys With Guns Gone Wild.
There are fundamental cultural differences between DoS and DoD. I'll use the ForWhatItsWorth and TruePath exchange as a starting point (I recognize the TruePath isn't a DoS employee. However, I've met a number of very smart, ernest DoS employees whose knowledge of the military was probably less than TruePath's.). Go back an re-read their exchanges and you'll see that they are almost talking in different languages. Their assumptions about the military and how military personnel act are wholly different.
As I understand it, the BW employees are all former Special Ops troops (most of them retired from Active Duty). Someone like ForWhatItsWorth, who is retired military, would look closely at the standard operating procedures and controls of the BW employees to ensure proper command and control. Someone like TruePath wouldn't think to do that, or if he did, wouldn't understand what he was reading if he did review those. Who was authorized to give the order to use deadly force? Under what circumstances -- and I mean fairly detailed guidance akin to what is found in Rules of Engagement -- is use of deadly force authorized? What are the consequences for not authorizing use of deadly force when appropriate and for authorizing its use when inappropriate? For DoD personnel and contract personnel, I can answer those questions. The military services' JAG schools have been looking at them for a long time, so there's a lot of reference and training materials available. However, for DoS personnel and contract personnel, I don't have a clue on the answers. As far as I can tell, DoS's instructions to the BW employees was along the lines of "Shoot if you think you should" and not much more detailed than that.
This gets down to a much more fundamental issue: Who do you want controlling the people who've got the guns? Do you want people who are used to contolling people who've got the guns, or do you want people who are used to making nice speeches over conference tables and at cocktail parties? (I'm not trying to hide my biases here. Still, I can see that others might not agree with me.). Once you say that security forces, including contractor employees, are under DoD control, then DoS has to abide with DoD restrictions on use and operations and standards of conduct (which means that DoS personnel end up answering, at least in some circumstances, to DoD personnel). As I said, there's a turf war. However, unlike most bureaucratic turf wars, people may die depending on the decisions made.
Agreed. My argument was that US court systems might have jurisdiction based on the CPA rules. If so, the question becomes which court does.
I would point out two things though: 1) until the courts rule, we don't really know how this will be taken into account. 2) The second question is what the CPA provisions on jurisdiction mean. One option would be to ignore the MEJA and just apply home jurisdiction law directly. Do the CPA provisions on jurisdiction provide this authority? I don't know. We will have to see.
There are additional questions of due process and vagueness I can see arising as well, since the civil laws were not really meant to apply to cases of military conflict.
In the end it comes down to three questions:
1) Do we have such laws now? If not, the BW charges need to be dismissed and we need to pass appropriate laws now.
2) If we do have such laws, are the BW guards guilty?
3) If we do have such laws, which jurisdiction is appropriate?
Ultimately, questions 1 and 3 are legal questions to be answered by the courts. Question 2 would be for a jury.
These are important questions. However, I find the idea that we shouldn't regulate contractors in these ways very dangerous. I know you, wfjag, have NOT argued such a position, but many here have. We do regulate the conduct of our armed forces and we need to have similar regulations for paramilitaries attached.
My own preference would be to worry less about this case and get on with trying to draft real law to cover these issues. My reading of the various court precedents suggest that there is no reason the UCMJ couldn't apply via criminal court if appropriate statutes were enacted by Congress (you just can't court martial a civilian). Therefore I think we should have laws applying the UCMJ to contractors where a) they are employed in active theaters of operations of our armed forces and b) are employed in a security or paramilitary role.
Of course, one cannot prosecute the BW folks for this today.
If there is no jurisdiction over BW actions, then I have to say that giving Iraqi courts jurisdiction over any future matters is a good thing.
Absent the constitutional question of whether BW employees could be subject to court martial (I know the answer is "no"), do you think that the court martial system would be more fair in cases like this, and avoid more unjust convictions?
If the BW guys committed a crime, they should pay.
The point about acting like soldiers when they tried to block off a possible route of escape was mentioned by another commenter as an indication that there was something wrong about the whole thing. I didn't say it was part of the indictment. Didn't. As you know.
My larger point is that there is no consistency in the area of war at this point. People may insist that one or another action is covered by one or another law, and they may even be right in a limited sense. But another, similar action someplace else might attract no attention whatsoever. While our enemies use the laws against us.
I talked to a guy who was in support--in this country--of the Somalia op about and did read an article about the following; A helicopter door gunner was courtmartialed for shooting a woman who was standing in front of a gunman, passing him fresh magazines. I have been unable to follow up on that, although I think I'll give it another shot.
I talked to some folks about it on the presumption it was true and a surprising number thought it was a good idea to courtmartial the kid.
So, whether it was true or not, the attitude is interesting, since they answered as if they would have if they had known for sure that it was.
If this is true, or, for that matter, if it isn't, we have a problem with consistency.
I'm for an organizing principle which would, for example, have prevented the Haditha crap, in which, for example, a field grade officer was courtmartialed for failing to investigate that which had not happened. IOW, take politics out of it.
Although, once we have a dem president, there will be considerably less concern with such things.
Military jurisdiction might be properly created by contract rather than statute.
DoS's contract with security firms could require that they and all their personnel agree to DoD having criminal jurisdiction under the UCMJ, with all their specified staff and employees (at least the ones entering a theater/zone of operations) having to sign waivers of their Constitutional rights save those applicable under the UCMJ, and agreeing to DoD criminal jurisdiction under the UCMJ, as a condition of employment and/or entry into a theater/zone of operations.
einhverfr,
Every attorney I know of with experience in both UCMJ and civilian criminal law practice says something like, "You want to be tried by a military court if you are innocent, and a civilian court if you are guilty."
About a dozen attorneys and one judge whose offices are within 2-3 blocks of my office are either reserve or retired JAG's, and the judge is currently on active duty in Afghanistan.
This is a valid point. This is one reason why things need to be consolidated and restrictions unified.
I would also note that supporting documents in the indictment suggest that BW employees actually contravened orders in setting up the road block.
I concede it may not be possible to try the BW employees, but we had better make darned sure that we have unified and consistent laws on the books to prosecute people when it is our responsibility to do so.
IANAL, but I would think that the question of whether to court martial or not should be based on trying to understand whether the circumstances were sufficiently in doubt as to whether regs were violated. You might find this article interesting though.
The Third Geneva Convention makes "willful" killing of civilians a grave breach which signatories (including the US) are obligated to punish, even if they do not have territorial jurisdiction over the matter. This would be one possible basis of authority to apply US law to the BW guards in conjunction with the CPA rules. It would also have been a basis for Iraq to move ahead with a trial, since a lack of territorial jurisdiction does not exempt states from this obligation. (BTW, neither is a lack of participation in the conflict, meaning that under the treaty, every other signatory might be obligated to try these folks under their own laws if we fail to find a basis for jurisdiction.) If there is a serious question, then a court martial is appropriate for military personnel as is a trial under criminal laws is appropriate for those who are not.
einhverfr, the jurisdiction of the lower federal courts is created by act of Congress. That's what the Constitution provides (although, it seems like the federal courts honor that provision more in the breach than in the observance). As I recall, the CPA was largely a creation of executive order and supposedly various UN Sec. Counsel Resolutions. So, I don't see how CPA rules can create jurisdiction in US District Courts. I don't think the Resolution authorizing OIF can be construed as a jurisdictional grant to the US District Courts broad enough to cover the BW employees.
As far as your questions -- everyone of them is a good question, and there has been almost no discussion of them since we began deploying people for IFOR in 1995, and all the operations since then. Still, while turning over Americans who provide security services, as contract employees, to DoS for trial in foreign courts may solve one problem, what American politician is willing to face the blow back when an American citizen is punished for protecting DoS striped pants weasels from attack by Jihadists? And, how do you think a the public will react when an American is flogged (a punishment used in many countries) and that is broadcast on CNN? The diplomatic immunity conferred by Expert on Mission status (which I think is the immunity that covered the BW employees), among other things, allows US elected and appointed officials to avoid responding to such questions.
One of the differences between DoD and DoS is that DoD has a long and extensive history in handling tort claims. In a deployed situation, if DoD personnel or contract personnel cause harm, one response is to get the tortfeasor out of country quickly and Foreign Claims Commission (which can be 1 person) to show up and give money (and apologize), and get a signed release. I've been a Theatre FCC. And, I've been known to show up with my bag of local currency before any reporters do. When was the last time you read "Terrible incident involving US military personnel and locals, US military expresses regrets and makes generous settlement"? You haven't, and never will, since it doesn't fit the press' narrative about the US military.
Here, however, the BW employees are former military (close enough for the press' narrative) and DoS doesn't understand that more than pretty words are needed. So, there's a good story. And, yes, I do believe that the publicity has a lot to do with the prosecution.
Thomas, military jurisdiction is created by contract -- either an enlistment contract or acceptance of a commission as an Officer. At that time an oath is taken, which changes one's status from civilian to military. It is a change in one's citizenship status. However, I know of no way that an employer can, by contract, agree that the citizenship status of its employees is changed. For example, by enlisting or accepting a commission, the person's 1st Amendment rights are seriously abridged. A person subject to the UCMJ is forbidden, subject to criminal penalty, from criticizing certain elected federal and state officials. One's right to travel is abridged. The failure to be where ordered and to arrive at the time ordered is the criminal offense of AWOL. And, if you don't like your boss and describe his or her parents' lack of marital status when your boss was born, you are subject to the criminal penalties for disrespect. And, there's my all time favorite UCMJ crime -- abuse of a public animal (not many cases on it, but, one involved a chicken).
The "waiver" you propose wouldn't be effective. In a court-martial under the UCMJ, unlike a criminal prosecution in US District Court, the jurisdictional elements of the government's case include proving that the accused (military term for defendant) is subject to the UCMJ and that the offense is one recognized under the UCMJ. Jurisdictional defects cannot be waived. For example, an element of the offense of abuse of a public animal is proof that the conduct was prejudicial to good order and discipline (and, not merely a really gross thing to do, which you'll really regret if the Mess Sergeant finds out about it). You might ask some of the JAGs you know about this element. One place experienced military defense counsel really take apart the military prosecutor's case can be on this element. A friend of mine talked a commander out of referring charges when a girl in the unit, who was on leave awaiting her discharge, appeared essentially sans clothing in Playboy. A female JAG was lobbying to have the girl's leave terminated and the girl court-martialed. My friend went to the PX, bought a copy of that issue of Playboy, and took it and his receipt to his meeting with the commander. He then challenged the female JAG to prove to the commander, beyond a reasonable doubt, that posing for a magazine sold in the PX could be considered prejudicial to good order and discipline. I also saw a defense counsel beat an AWOL charge by having the accused remove his name plate from his uniform. The prosecutor had introduced all the morning reports as business records, but rested before calling a witness to identify the accused as the person referred to in the morning reports (and since the accused was not wearing a name plate, the prosecutor couldn't argue that the court could take judicial notice that the accused last name was the same one as the one on the morning reports. As there was no proof that the accused was someone subject to the UCMJ, the case was dismissed). Also, under Art. 134, UCMJ, non-capital crimes can be charged under the Assimilated Crimes Act (i.e., crimes under state law thereby can be charged under the UCMJ). Experienced defense counsel always check and see if the state law was amended. I watched a case dismissed over this. The military prosecutor introduced a copy of the state statute, and asked the court to take judicial notice. The defense counsel got up, and introduced that part of the state law stating that the statute had been amended and the amendment's effective date. Since the prosecutor didn't have a copy of the amended statute handy, the court dismissed the case since it could not take judicial notice of the amendment, but only had proof that there had been an amendment. Since military courts are federal, proof of the foreign (i.e., state) law was needed. I prosecuted a case in which the accused had sold No Dose claiming it was speed. I didn't know if he thought it was speed or not. So, I charged him with an attempted sale of a controlled substance, and with theft by fraud. When I rested, defense counsel moved to dismiss one or the other of the charges, arguing that they were, under the facts, contradictory. I agreed that they were factually contradictory, but argued that I'd proven both beyond a reasonable doubt, so that the court only need provide the panel (military term for jury) with a limiting instruction that it could return a guilty verdict on only one of the charges. The court agreed. This forced the accused to take the witness stand, where he testified that he knew it was speed all along (theft by fraud, given the small sale price, carried a much lower possible sentence - so his testimony was hardly a surprise). I'm sure your friends have any number of war stories along these lines. Many are quite entertaining. "Age and treachery will overcome youth and zeal."
Essentially what you're proposing is enlisting everyone who provides security services for DoS and other agencies overseas. In that case, why not simply expand the size of the military services and have active duty military provide security services?
Sorry. (Note to self -- write 100 times "I will proof read before hitting 'Post Comment'".)
Is there any actual evidence of this, or is this speculation?
This is obviously the initial reason for the jurisdiction rules via the CPA. I would also add to your objection the fact that the locals in the area may be far less sympathetic with our troops in many cases than Americans might be. Obviously a trial for BW employees in Iraq would be likely less fair than in the US. A final objection is that such policies, once in place, might doom American involvement once such political problems appear.
These are all valid, but they don't address our responsibilities under the Geneva Conventions to prosecute people responsible for war crimes as defined by those conventions rather than US criminal law (AFAICS, this is one of those cases where the BW employees are accused of actions in grave breach of the Geneva Conventions, but which might not actually be criminalized under US law).
However, my point was that in the absence of clear jurisdiction, it was better than a blank pass. As you are well aware, there are cases (and this might be one of them, depending on the facts) where we are obligated under international law to punish people responsible for war crimes.
IMO, the best solution is still to have water-tight legislation aimed at appropriate regulation of all US contractors employed in military or paramilitary roles regardless of which agency they report to. In the mean time, Iraqi courts may be the best we can have.
Interestingly my reading if 18 USC 2441 might allow for prosecution in criminal court of these cases under other charges, but the manslaughter charges may be far less severe than 18 USC 2441 prosecutions might allow (my reading is that a successful conviction of 18 USC 2441 in this case might be a capital case).
Wow, so you're saying that the defense really has no reason to offer why the unarmed Iraqi civilians were killed except general excuses about how the Blackwater guards had reasons to be generally cautious? No reasons why the guards started firing? Since when are criminal investigations into "accidental" shootings considered "second guessing"?
I'm a layperson, but this summary strikes me as confirming what I heard (on NPR?), namely that the defense's case is so weak that they have hardly anything left but get the trial moved to conservative Utah in hope of a friendly jury.
So by that argument My Lai, were American soldiers massacred hundreds of unarmed civilians, was the fault of the Viet Cong (who certainly did hide in the civilian population)? Bizarre.
Look up Frank Snepp. Civilians routinely waive their Constitutional rights as a condition of access to classified information, or as conditions of employment.
So government contractors can be required, as a condition of their contracts, to employ only people who have signed such waivers.
Also note that I specifically said that the government can require persons entering zones/theaters of operations to sign such waivers as condiiton of entry; i.e., any private security personnel trying to debark from transport/passenger aircraft can be required to present, or sign again, such waivers as a condition of being allowed off the aircraft.
It's not that the employers' waiver applies to employees. Rather the employer must require employees to sign the waivers as conditions of employment, i.e., it's part of their employment contract. And, to be doubly safe, they can't get off the planes delivering them to the war zone without presenting such waivers or signing them on the spot. So they can't be hired without making a contract that subjects them to military jurisdiction when in the war zone, and they can't even enter the war zone without presenting the written agreement subjecting them to military jurisdiction.
Speaking of bizarre, your stretch to My Lai takes the cup for the year.
Nobody claimed that there was a fire fight at My Lai with VC shooters among civilians.
Their job is to get off of the "X" quickly. That means when something happens, they react, and move the principal (the client) out of the danger zone as fast as practicle.
They don't wear uniforms because the are not soldiers or Marines. They are security guards.
If they were doing combat patrols or ambushes or other combat related functions, then the no uniform argument might hold some water.
I have two former colleagues who work for BW and they swear by the company, their training, and their brothers.
The legal term is "extra-territorial jurisdiction", and it does apply here. afjag was incorrect. National governments may prosecute their own citizens, under their own laws, for offenses committed abroad against citizens of other nations. Murder of a Russian by an American in Russia may be prosecuted as murder by the Department of Justice.
The concept of extra-territorial jurisdiction also applies to the arrest, and prosecution in the U.S., of foreigners captured overseas for offenses committed abroad against American interests. Then President Manuel Noriega is perhaps the best known example. He was convicted of conspiracy in Panama to violate narcotics laws in the U.S.
Nations may also assert extra-territorial jurisdiction over foreigners for offenses committed abroad against the citizens of those nations. An Islamic terrorist of Saudi nationality who murders an American tourist in Egypt could be prosecuted in the U.S. for that murder.
Now, these accounts may be incorrect, and the defense account correct. But such discrepancies are dealt with at a trial, right?
What runs through the jurisdictional thread here, and on dozens of threads about Guantánamo, is an insistence by the Bush Remnant on creating or preserving law-free and jurisdiction-free zones. It would appear that some people here will argue that there was no venue in which a Blackwater contractor could be tried if he had taken an Iraqi baby to a public place and eaten it in broad daylight.
Seven years after 9/11 and we are still dealing with people—most of whom, like the prosecutors, are sitting safe and snug at their keyboards—can not accept that Double-Oh Cards are make-believe.
Paul Cassel wrote:
Reading this as providing force of arms to create a safe corridor for the escape of the state department agent, and this sounds like combat-related to me.
However, this is very different from Mr Ridgeway's testimony, which suggests that orders were contravened. Once again, absent jurisdictional issues, I think they should be tried.
BTW wouldn't it be more in line with accepted jurisdictions to try these men for wilful killing of civilians as a a grave breech of GCIII? I understand that US law provides for capita punishment in that case.
My l key doens't work so well. Honest! ;-)
Murder of Iraqis by an American civilian in Iraq may be prosecuted as murder by the Department of Justice under the doctrine of extra-territorial jurisdiction. That is the basis of its jurisdiction in this instance.
As a practical matter, use of the normal federal criminal justice system to prosecute this offense is subject to immense difficulties due to the Constitutional requirement that the accused be afforded discovery. I described those problems in previous posts. There are also issues here with enemy action in removing exculpatory evidence from the scene of the offense, and planting of falsified incriminating evidence.
There seems to be some agreement that military jurisdiction, with prosecution being by the Department of Defense rather than the Department of Justice, under the UCMJ as opposed to Title 18 of the United States Code, is preferable for offenses taking place in war zones, at least by armed civilian contractors of federal agencies.
I suppose some of the people killed were civilians, which is to say their weapons had been dragged someplace else.
Some may have been actually non-fighting civilians going abotu their lawful business.
But the defense of self-defense surely applies to the BW folks.
I never said it didn't. I just merely stated that wilful killing of civilians by US citizens abroad in a war zone can be punishable by death.
Certainly self-defence as an affirmative defence in these matters is something that might prevent charges if there are clear indications that this is the case. Given the Ridgeway testimony, a trial might be appropriate, and the jury would be tasked with making that weight.
Just to note, one can't go around shelling residential neighborhoods just because some insurgents may be there either.*
* Or at least this defence didn't fly wrt Serbian war crimes.
It didn't? I thought Clinton skated on that one.
It's "defense of another", not self-defense. This is a legal board.
Interesting. I didn't know that Bushitler had completely cleaned out the agency and put only those on his evil red marxist payroll. Call the justice league!
So the blame falls back on the guys who started the war.
WRT the current unpleasantness, we have methods of finding the bad guys anywhere. In space, under the sea, behind the ridge, under the ground. The only place they can now hide is among civilians. And so they do. As it happens, that's illegal.
So the blame falls on those who begin assymetric warfare. Or, if we are discussing those who respond to it, such as the US, we require a prudential judgment about whether fighting it is worse than acquiescing.
You said that perhaps the BW employees could be tried in US District Court under a long-arm jurisdiction statute. OK, identify one. The MEJA is a long-arm jurisdiction statute, and it looks like the one DOJ is trying to rely on as to the Blackwater employees (judging from Mr. Ridgeway's affidavit when he recently pled guilty). However, under the definitions of the MEJA, it does not appear to apply to DoS contract employees (but would apply to DoD contract employees). Still, that part of the MEJA has never been litigated. There was a case involving a dependent spouse of a servicemember who was tried in US Dist. Court under the MEJA, but that involved a different definition. The 9th Cir. appears to have applied a plain meaning intrepretation of the MEJA's definition.
einhverfr suggested prosecution under 18 USC 2441. It may be possible, but DoJ doesn't seem to be relying on that statute (although, you can't tell until you read DoJ's memoranda, what it will cite as authority. As I said above, I believe that a plain meaning intreapretation should be applied to criminal statutes -- I didn't say that US District Judges always did that. Sometimes they are quite expansive in reading criminal laws (see, e.g., the discussions of the Lori Drew trial)).
So, if you believe there is an extra-territorial jurisdictional statute that allows trial of the BW employees in US District Court, identify it. Or, if you believe that the MEJA can be more expansively read than I read it, state your reasons.
einhverfr, very few of the Law of War treaties that the US is signatory to are self-executing. And, even those that can be read that way, the US signs with reservations stating that they are not self-executing and must be implemented by domestic legislation. None of the Geneva Conventions have been recognized by the US Courts as self-executing. So, assuming that GC3 applies -- and, since on its face it addresses the conduct of the armed forces of a signatory nation-state and not contractor employees of a firm acting under contract with a foreign ministry -- you still have to find a US criminal law having extra-territorial application, or a statute creating an extra-territorial jurisdictional grant for the US District Courts.
I doubt that there is any obligation under GC3 for the US to enact such a law. It's only been recently that the practice of hiring private security contractors by DoS has occurred. The Geneva and Hague Conventions assume that there will be national governments whose military forces will be involved. A Convention on the Criminal Misconduct of Employees of Private Firms Acting as Contractors for Agencies of National Governments would likely be an interesting document. Maybe it could be expanded to include contractors of the UN and other multi-national organizations, since showing that there is criminal jurisdiction over the people who defrauded the UN has been difficult, too.
My recollection from law school is that extra-territorial jurisdiction is non-statutory.
Military jurisdiction is not always a matter of contract. That it can be created by contract does not mean that it may only be created by contract. My father did not volunteer for military service. He was drafted.
But voluntary contracts allow for all sorts of things. Consider contractual arbitration clauses.
In any event, armed security personnel of military contractors may become subject to U.S. military jurisdiction as a condition of their employment, and as a condition of entry into a war zone. Such contracts need not be with their employer, or with the U.S. government. There could be a legal fiction that such contracts are with the government of Iraq, or with an occupation authority.
There is no one right, true and majestic way of doing this. There are lots of 'em. And it can be done by contract.
It may be that, by not relying on actual war crimes statutes, that the DoJ may have screwed up this case (which leads to the question of whether the charges should be dismissed). I note that these statutes allow prosecution of any US person who commits a grave breach of any of the GC's and many other treaties. The fact is that voluntary manslaughter more or less amounts to wilful killing of civilians under the GCIII at least by my reading and therefore would fall under 18 USC 2441.
The major point though is that, if we dont have jurisdiction over this sort of problem, then this needs to be corrected ASAP. Obviously this would not affect THIS case but would prevent the next one from falling through the cracks. I would be comfortable with a court ruling that the charges here were improperly filed. I would also be comfortable with a ruing that 18 USC 2441 was the only set of laws governing this sort of incident.
The tradeoff would be that, under 18 USC 2441, this could be a capital case rather than just a case involving imprisonment, but it would be limited to war crimes defined by treaty rather than extending every possible US law into Iraq.
Just because the DoJ might rely on the wrong statute might not mean that similar cases could not be prosecuted under the correct one. My main concern is that of our legal obligations under the Geneva Conventions. If we are meeting those in any way, then I am good. It looks like 18 USC 2441 meets my concerns.
Thomas, your father still raised his hand and swore an oath, and at that moment his citizenship status changed. Granted, he had a choice between that and being prosecuted by civilian authorities for draft evasion. So, his being subject to the UCMJ -- or earlier, the Articles of War -- was still a matter of contract.
einhverfr, that is an intrepretation some scholars argue for -- more in Europe than in the US -- and, I believe some nations assert is true. It is not, however, the doctrine followed by US law. You'll probably recall some half-assed attempts to "arrest" former US officials, like Rumsfeld, in other countries, and watched the governments of those nations go through twists and flips to avoid the issue. I don't believe that there are many nations that want to get into the type of dispute that would arise if American citizens were arrested and tried for "war crimes" in their nation for conduct which occurred while the American citizens were working as DoS contractor employees in Iraq. If nothing else, the US is such a large debtor nation, it might decide to retaliate by cancelling all debts owed by the US to that nation and its citizens, and "proportional" response to what, under US law, would constitute an act of war. (the "Big 3" auto makers aren't the only ones in the "too big to be allowed to fail" category). Sure, it'd be a pretext, but most diplomatic actions are.
As far as fixing the MEJA, I agree that it should be done. However, I don't agree with a bandaid fix. There are numerous underlying policy issues that need to be addressed, too. Merely extending the MEJA to DoS contractor employees fails to do that.
There is one other problem too. The MEJA seems to my mind to be somewhat of an incorrect tool for the job. I.e. it extends jurisdiction regarding peacetime felonies to DoJ contractors. This might not be a good option policy-wise.
One option (which I would fully support) would be to extend US violent crime laws to US contractors when this is done in contravention of the Geneva Conventions. Hence, for example, involuntary manslaughter charges might not be possible, but voluntary manslaughter charges might be possible. This would provide an alternative to full war crimes prosecution.
However, once again, if the court dismisses these charges, but would allow for war crimes charges to be filed (even if that only applied to future cases and not this one), I think that would be acceptable to me. It isn't a matter of finding these guys guilty so much as making sure that if it ever happens again, there is an avenue for justice.
This has been going on since late 1995/early 1996 when it was apparent that the cuts in troop strength during the first Clinton administration left too few troops in quite a few branches to support even a limited mission like IFOR. Accordingly, contractors have been providing manpower in a lot of areas. The MEJA, enacted in 2000, hasn't been much of a solution to dealing with criminal acts by contract employees hired to provide services in overseas theatres. Most US Attorneys are not especially interested in the cases. Few receive much publicity in the US or have victims' families in the US to pressure for prosecution. Investigating and gathering evidence and witnesses from overseas in a manner that satisfies FRE standards are also major obstacles and expensive. I don't see those changing whether the MEJA is amended or other laws are enacted. More than a bandaid solution is needed.
What sort of solution do you think is required?
If it is eliminating the use of contractors for this sort of work, I will entirely support that BTW.
The quick fix is to make DoD lead agency for all Phase IV operations and any contractors be DoD contractors.
Military occupation governments worked reasonably well in Germany and Japan. One advantage is that as to investigation of alleged crimes, the military services all have military police and criminal investigation divisions who know how to gather and handled evidence so that US constitutional standards and the FRE are met (the Military Rules of Evidence are little different from the FRE). Also, the military has translators on the payroll, so interviewing locals isn't a problem, and the military has video teleconferencing equipment available at any significant headquarters (the Constitution guarantees a right of confrontation -- it does not guarantee that the witness need be in the same room when testifying). This addresses many of the practical problems.
Also, by making all contractors be DoD contractors, there will be a uniformity of standards. (Right now, due to contracting rules developed during the Clinton Administration, if a firm has a contract for work in a deployment area with any US agency, any other US agency can then negotiate a no bid contract with that firm. No bid contracts are a lot faster to let than going through the standard contracting procedures of the Federal Acquisition Regulations. The critics of the Bush Administration had the reason for the no bid contracts all wrong. It wasn't political connections. It was convenience for the agency contracting officials. All those meetings and comments with potential contractors -- and bid protests by loosing bidders -- are a real pain in the butt for someone trying to get a contract signed and off their desk).
DoD also is experienced in terminating for cause the contracts of contractors that fail to properly discharge duties. While an outfit like BW might be able to snow DoS personnel on when use of deadly force is appropriate, they'd be less likely to do that when dealing with career military. One of the things that bothers me about the facts here is that there is no reference to anyone being the "commender" -- i.e., the person who had to authorize firing -- and no reference to detailed rules for when the BW personnel could use deadly force. It looks like each BW employee was supposed to make that decision on his own. I'd be surprised if there was anything in the DoS contract addressing such issues in any sort of detail comparable to standard DoD command and control procedures and Rules of Engagement.
Further, as noted above, DoD has a lot of experience in handling claims in foreign countries. This also includes making "customary" payments that do not admit wrongdoing, but are an expression of sorrow at the family's loss. Actions by contractors, however, generally aren't covered by this. A very important point to the governments of Croatia and BiH in the Dayton Peace Accords was a provision for payment of tort damages in the case of negligence by Soldiers operating with NATO command. The UN's claims procedures were cumbersome and ineffective, and even when the UN admitted tort liability, the UN payments were insultingly low (even under the standards of war-ravaged Balkan nations). One of the lessons to be taught in places like Iraq is that even the people with the guns have to obey the law, and when they don't there are consequences. Putting someone in jail isn't the only consequence. Paying compensation is likely more important to the victim or family, and has a much greater positive effect than saying that the perp is in jail in the US.
Also, you don't seem to understand that US doctrine is that trial "war crimes" is done under standard criminal offenses. No one is charged with "war crimes" in US courts. They are charged with murder, rape, robbery, maltreatment, etc. Next April (I believe) a former Soldier will be tired in the US Dist. Court in Paducah, KY, for rape of an Iraqi and murder of her and her family, while he was deployed with the 101st Inf. Div. (Air Assault). Four others, who were Soldiers, have already been convicted in trial by Court Martial or pled guilty. The defendant is being tried in US Dist. Court because he was discharged before charges were preferred. I think that the jurisdictional basis for trial in the USDC is the MEJA. I believe that his defense will be not guilty by reason of insanity. One of the drawbacks evident in setting up a new court system, is that you also have to establish new evidentiary rules and procedural (pre-trial, in trial and post-trial) rules. I suspect that conduct you believe is a "war crime" is covered by existing substantive criminal offenses already in Title 18.
Granted, journalists find if more fun to toss around the term "war crime", but, any attorney who's dealt with the subject knows that a criminal offense is a criminal offense. But, it's more dramaticly for journalist to say "US Soldiers accused of war crimes" than "US Soldiers in Iraq accused of murder." I suspect that it's easier to get a jury that will fairly try someone accused of murder (where ever it happened) than to get a fair jury to try "war crimes."
Thank you for your points. I am formulating letters to my congressmen and I think that your points are quite good here. They will certainly make it into my communications.
Thank you very much for your informative posts.
Also, thanks for all you do making "laymen" like myself a little smarter...
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.