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.

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Trying Soldiers in Civilian Courts

Passed by Congress in 2000, the Military Extraterritorial Jurisdiction Act was designed to allow the prosecution of civilians contractors employed by the Department of Defense for crimes committed while overseas on official business. The original intention was to close a loophole allowing civilians to escape prosecution for serious crimes because they were not subject to military law and U.S. prosecutors lacked jurisdiction. The law is set to be used for the first time tomorrow.

Former Marine Sgt. Jose Nazario, 28, is accused in the killing of four Iraqi prisoners. Nazario is charged with voluntary manslaughter, assault with a deadly weapon and discharging a firearm during a crime of violence in the alleged killing of the four Iraqi prisoners during the battle in Fallouja on Nov. 9, 2004. Nazario left active duty when the Naval Criminal Investigative Service began its investigation making it impossible for him to face military justice as the two others charged in this case are.

The Nazario case is important for several reasons. As the first case to be brought under the Military Extraterritorial Jurisdiction Act it will be breaking ground and setting precedent for the law. It will give us some idea of how civilians will react to things that occurred in war zones. The case will also have a big impact on the potential cases brought against those who the law was designed for, civilian contractors.

The civilian contractors in Iraq need to be held accountable and this law has the potential to do it. The other potential high profile case that may be brought under this law is the one against the employees of Blackwater. Specifically, there are potential charges against three Blackwater guards present at the time of the Sept. 16 incident in Baghdad's Nisoor Square where 14 Iraqi civilians were killed and 18 injured.

The Nisoor shooting is only one of many incidents that enraged the Iraqi people against the US. The Iraqis do not generally distinguish between the private Blackwater and the American Government or US military. Apart from angering the Iraqis the shootings also angered many in congress who were upset over the inability to hold the private security contractors accountable.

The incident that Nazario is alleged of perpetrating is described in the LAT

Nazario, the squad leader, allegedly had radioed to his superiors that the squad was holding four male prisoners after storming a home used by suspected insurgents.

"Are they dead yet?" an unidentified Marine allegedly asked Nazario over the radio.

Taking that inquiry as an order to kill the four, Nazario killed two of them and ordered Weemer and Nelson to kill one each, according to documents filed in Riverside federal court.

The question of trying Nazario in a civilian court has created divided opinions. One group believes that trying Nazario in civilian court exposes him unfairly to people who could not understand what pressures he was under. The other group feels it is unfair to try soldiers in civilian courts because the civilians will be too deferential to the soldiers as we have been told to “support our troops”.

"I'd love for my guy to be tried by civilians," said attorney Joseph Low, a former Marine who represents Sgt. Jermaine Nelson, 26, who is set for court-martial in December. Also charged in the case is Sgt. Ryan Weemer, 25.

The opponents claim

"He can only get a fair shake if those civilians are honorably discharged Marines who fought" in Fallouja, said William McNulty, secretary of the Marine Corps Intelligence Assn., a group of former Marines. "Soccer moms and pops can't understand the horrors of war or the complex set of [rules of engagement] that these Marines face."

That is true, but it works both ways. It is not fair to ask civilians to judge the soldiers in that way. The reason we have “jury of peers” is so that the people sitting in judgment have an understanding of the accused and can understand the circumstances, civilians cannot do that for the soldiers in this case. I am not sure why there is no provision to recall soldiers to active duty to face criminal charges even when discharged. It seems like something the military would do.

It is not fair to the soldiers or the civilians to have these trials in civilian courts. The government intends to present these action as occurring in cold blood when others paint the situation as complete chaos.

"In reality, the situation was far from the calm, organized environment the government prosecutors apparently intend to present to the oblivious civilian jury. The fighting was so fierce that the (3rd battalion, 1st Marine regiment) Battalion Aid Station received 197 combat casualties out of the 1,250-man reinforced battalion during the first 96 hours, according to Marine Corps records."

There needs to be a way to try soldiers by soldiers. There is also some question about whether the law should even apply in this case. In any event the case will be followed closely and its outcome will have big repercussions.

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