Understanding the Blackwater Indictments Posted by Michael Cohen

Over the weekend, it was reported that five Blackwater guards were on the verge of being indicted for their role in the deaths of more than a dozen Iraqi civilians last September in Baghdad's Nisour Square. It's a long overdue step by the Department of Justice to hold private contractors accountable for criminal offenses in Iraq, Afghanistan and elsewhere.  However, if you are expecting a conviction on these charges there is good reason to be dubious.

The first and most glaring problem is one of legal jurisdiction. While private contractors employed by the Department of Defense can be prosecuted under the Uniform Code of Military Justice (and even that is less than clear cut) State Department contractors, such as those employed by Blackwater, have literally been operating in a legal black hole. They can't be prosecuted under UCMJ and while there has been an effort, led by Cong. David Price (D-NC), to expand the Military Extraterritorial Jurisdiction Act (MEJA) to cover State Department PSCs, the legislation remains blocked by the Bush Administration. While DoJ will likely try to prosecute the Blackwater guards under MEJA the jurisdictional challenges are going to be a very difficult hurdle to pass.

The second big problem is that State Department granted limited immunity to some of the Blackwater guards, which means anything they said under questioning cannot be used in court. Prosecutors are going to face difficult motions to exclude evidence potentially based on these interviews.

Speaking of evidence, these were crimes committed in the midst of an active war zone; FBI investigators did not reach the scene until, I believe, days after the shooting.  The defendants lawyers will no doubt argue that the evidence has been tainted or should be excluded.

And even if the Justice Department is able to overcome all of these issues, they then have to convince a jury that the Blackwater guards did not believe they were in danger and acted with reckless disregard. I'm quite sure that if this case goes to trial, the Blackwater guards will strenously assert that they believed they were under attack and at risk and that civilian drivers ignored signals to back away from the Blackwater vehicles. Juries are traditionally loath to second guess these types of firing decisions made in the heat of battle. It certainly won't help things for prosecutors that each of the indicted guards are all decorated former Marines and Army soldiers, making it that much for harder to convince a jury that they acted recklessly or even with nefarious intent.

In the end, the Department of Justice, along with the Department of Defense and State, has made an aboslute hash of the entire accountability mechanism for private security contractors. For years, State and DoD didn't think about the appropriate legal frameworks for contractors, basically giving PSCs a blank check. The Department of Justice was similarly asleep at the wheel bringing not a single prosecution. Now they finally wake up by bringing a case that they likely can't win, which will only serve to further inflame public opinion in Iraq and the Arab World, if and likely when these BW guards get off scot free.

Comments

[ng]

Whether or not these guys deserve to be convicted, it's difficult not to see these charges as motivated by political concerns. Aside from the significant evidentiary issues involved, the contractors in question are being charged under the 2004 amendment to the MEJA, which applies to contractors working "in support of the mission of the Department of Defense overseas." But the case that Blackwater's contract with the Dept of State was in support of the DoD mission seems difficult to make. If it wasn't, then why would Congress - incl the President-elect - have spent significant time trying to pass the MEJA Expansion and Enforcement Act, which would apply to contractors working for government agencies other than DoD? I agree that for whatever reason, DoJ seems to be bending over backwards to bring a case in which conviction seems unlikely. Rather than more contortions, the law needs fixing so that future cases aren't botched in the same manner.

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