Criminal Charges for Blackwater Guards

Zachary Roth at TPM is reporting on the possibility of Federal Charges for 6 Blackwater guards in relation to a shooting in Nisoor Square. The process seems to be in an early stage such that charges are unlikely. The possibility of actually charging Blackwater contractors for the actions they committed while in Iraq carries significant legal ramifications. It will shed light on an emerging and important doctrine of US foriegn and judicial policy, the extension of jurisdiction of domestic US courts over troops and civilians abroad.

Blackwater is not a particularly popular corporation here in America or abroad. One of the reasons that this is so is that is perceived that they operate with no rules an no oversight and are subject to no law. This makes for a very bad image not helped by the reports of events like the shootings at nisoor square. The damage done to America's reputation is not minor as Blackwater has been employed by the state department to the tune of $1.25 billion. However the department of justice seems to have taken note of the furor over the lack of legal oversight and has slowly begun to create a doctrine for criminal liability of civilian contractors in war zones.

Among the issues under discussion at the Justice Department is whether prosecutors have authority to bring the case. The largest security contractor in Iraq, Blackwater operates in a legal gray area. Its guards are immune from prosecution in Iraqi courts and U.S. law does not normally apply to crimes committed overseas.

To prosecute, authorities must argue that the guards can be charged under a law meant to cover soldiers and military contractors. Since Blackwater works for the State Department, not the military, it's unclear whether that law applies to its guards.

It would be the first such case of its kind. The Justice Department recently lost a similar case against former Marine Jose Luis Nazario Jr., who was charged in San Diego with killing four unarmed Iraqi detainees.

The law referenced in the quote is Military Extraterritorial Jurisdiction Act, passed by Congress in 2000, to address crimes allegedly committed in combat. Its original purpose was to catch soldiers like Nazario that managed to become discharged from the Army and are not in the reserves who are charged with crimes resulting from their time in service.

The relevant statutory language is

Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States [1]while employed by or accompanying the Armed Forces outside the United States shall be punished as provided for that offense. 18 USC Sec. 3261(a)(1).

If we take a plain language reading of the statute then we have to look at whether the contractors charged were with the army at the time of the Nisoor Square shooting. They were not. This leaves the Justice Department in a bit of a bind. They have to hope that the courts take a broad view of what the term "accompanying" means to find that the jurisdiction extends to the Blackwater Guards under 3261. Do not count this broad interpretation out.

What we have going for us is the argument that public policy absolutely supports bringing Blackwater and other civilian contractors under jurisdiction of US courts. No one is above the law or outside the law and yet if the court rejects the interpretation that brings the contractors under US federal court jurisdiction that is what happens. The US mission in Iraq is undercut by having these contractors act without liability. Also, there is the impact on the troops who have to see these guys traipse about the country with immunity. Blackwater already pays better and now they would officially get to operate with criminal and civil immunity.

Another important point is that the Iraqi government is making a very big deal out of gaining jurisdiction over US soldiers for crimes while committed off duty. The ability to punish those who commit crimes in their country is important and showing that the US is willing to punish our citizens who commit those crimes sends a strong clear and positive message. The Iraqi's might not be so determined to gain jurisdiction if they felt that the alleged criminals were being tried and punished as the should be. That would help speed along the SOFA agreement still in the works.

One consequence of finding that US federal courts do have jurisdiction is that the guards would be tried in civilian courts for acts committed in a war zone. The result of the Nazario trial might indicate a general discomfort among civilians to judge the actions of those in a war zone.

"I don't think we had any business doing that," juror Nicole Peters said at the time. She wiped away tears after the August verdict and later hugged the defendant. "I thought it was unfair to us and to him."

This would have the consequence of rasing the level of proof that the prosecution has to meet. The prosecution would have to prove with a certainty that either the situation was not nearly as chaotic or dangerous as might be assumed or that even if it was dangerous that a soldier or security contractor would have been trained and capable of dealing with the danger in such a manner as to nullify it. Both are tough questions to ask of civilian jurors.

Note that this is groundwork is being laid before Obama takes office. Remember that it will not be completed before he does so even if the Bush admin is inclined to pass on this prosecution President Obama will probably be the one staffing the justice department making sure that political considerations do not interfere with seeking justice.