The government charges the five with voluntary manslaughter, aiding and abetting the killings and with the use of automatic weapons in commission of a crime. But there are problems with the indictments, both legal and factual. And the indictments fairly reek of politics.
Baghdad in September 2007 was a very dangerous place and Nisour Square wasn’t Rodeo Drive in Beverly Hills. During the week of September 16 -- according to a chart Gen. David Petraeus presented in his Senate testimony on April 8, 2008 -- there were about 790 attacks on Coalition Forces and diplomatic personnel. That’s about 112 every day, or more than four every hour. Raven 23 -- the eighteen men in four heavily-armored trucks -- knew that the odds were that every time they left the “Green Zone” they were headed into a two-way firefight.The first major problem with the indictments is factual. The Blackwater guards -- with the exception of one who plead guilty -- will say they fired only after being fired upon. Which brings up the question of motive. These men had nothing to gain by shooting innocents. Their job was to help protect State Department people operating in a war zone. Judging by the overall performance of Blackwater in the years they’ve been protecting State Department, CIA and other US civilians in Iraq -- no Blackwater-protected person has been killed or seriously wounded -- they presumably knew their jobs and did them well. But the Iraqis -- and many of our own military -- have never accepted their presence. The press, both there and here, often calls the guards who work for Blackwater and other companies such as Triple Canopy “mercenaries” and “trigger-happy cowboys.” The Iraqis briefly banned Blackwater operations after the Nisour Square incident, but then relented after the US agreed to a joint investigation. An Iraqi investigation found that the Raven 23 team fired without provocation. That conclusion -- disputed by all but one of the Blackwater guards -- falls into a legal void.Post-invasion Iraq has been a largely lawless place. Because there are too few troops trained in executive protection (far too few to protect the large number of State, CIA and other government employees in Iraq) the State Department and other agencies had to hire contractors to perform protective services. (According to a Congressional Research Service report, as of September 2008, there are still about 10,000 contractor personnel in Iraq providing quasi-military security services.)
Ever since the new Iraqi government began to function, there has been enormous political pressure to end the immunity from Iraqi law the contractors have had since L. Paul Bremer decreed it in 2003. Under the new Status of Forces Agreement, the immunity will no longer protect contractors from Iraqi prosecution, but Bremer’s decree was in effect at the time of the Nisour Square incident.The biggest legal problem with the Raven 23 indictments is the statute that allegedly enables them to be tried for the shootings under US law. The Military Extraterritorial Jurisdiction Act enables US courts to punish crimes committed by Defense Department contractors overseas. It has been amended to include other agencies’ contractors who are acting in support of the DoD mission. But Raven 23 was acting under a State Department contract to protect a State Department official, which isn’t DoD’s job.The weasel-worded indictments stretch MEJA beyond the factual and into the political, saying that the Blackwater mission is “related to supporting the mission of the Department of Defense in Iraq.” But “related to supporting” could cover any crime in Iraq. Why is this alleged crime by non-DoD contractors “related to supporting the mission of the Department of Defense” being prosecuted when others have not, unless it is designed to make good on a political promise? That allegation that MEJA covers the Nisour Square incident is also highly suspect because three government agencies – including the State Department itself – have concluded that MEJA cannot be used to prosecute this case.
After the Nisour Square incident, Secretary Rice tasked a panel of outside experts to review the State Department’s security policy in Iraq. It reported in October 2007. The panel’s report says, in part, “The legal framework for providing proper oversight of Personal Protective Service (PPS) contractors is inadequate, in that the Panel is unaware of any basis for holding non-Department of Defense contractors accountable under US law.” If that were not enough, the Congressional Research Service’s report (number RL32419) has made the same finding both before and after the Nisour Square incident.The July 11, 2007 version finds that MEJA, “…does not appear to cover civilian and contract employees of agencies engaged in their own operations overseas.” The updated version dated September 29, 2008 says essentially the same thing: “Depending on how broadly DoD’s mission is construed, MEJA does not appear to cover civilian and contract employees engaged in their own operations overseas.” A third arm of the US government – Congress’s Government Accountability Office – adopted the State Department report in its own July 2008 report on oversight of private security contractors in Iraq.Raven 23 was part of a Blackwater group under contract to the State Department. In the Nisour Square incident, they were acting to help protect a State Department protected person whose own convoy was racing back to the protection of the Green Zone. In the indictments and in the proffer in support of a guilty plea of one of the Blackwater Raven 23 men, Jeremy Ridgeway, they are described as having violated the State Department’s “Mission Firearms Policy.”The government must be bound by the proofs it presents to the court. The facts alleged in the Ridgeway proffer show that the men of Raven 23 cannot be prosecuted. They were State Department contractors, on a State Department mission. Under States’ own analysis -- and that of both CRS and GAO -- they are not criminally liable under MEJA. All that is left is politics.Why is the law being stretched so thin to reach men working for the State Department on a State Department mission if not to make political points with the Iraqi government? The court should throw out the indictments and dismiss all charges because the law does not allow them.Unfortunately for the men of Raven 23 and for the rule of law, the case has been assigned to US District Court Judge Ricardo Urbina.