Friday, January 23, 2009

Out of Control Buffoonery - Trial Lawyer Embarrasses Himself with Ill-Informed Hit Piece

Imagine - a trial lawyer is calling someone a "phenomenally rich multimillionaire inheritance baby."

That's what Florida trial lawyer Mike Papantonio (pictured) calls former Navy SEAL and Blackwater founder Erik Prince.

But Papantonio's hit job is way off the mark, showing a staggering level of ignorance of American history, law, and of the subject of his attack. The trial lawyer's clumsily-worded, error-filled screed appeared in the Pensacola News Journal. I'm almost embarrassed for him. The piece looks it was written by someone who's had too much to drink.

Papantonio is a radio talk show host on Air America and is founder of

Standish has found at least nine major, glaring errors in Papantonio's attack piece.

1. Papantonio has his legal definitions wrong. He repeatedly refers to Prince and Blackwater as "mercenary." As a lawyer, Papantonio should know better. The international legal definition of mercenary, as defined by the Protocol to the Geneva Conventions of August 12, 1949, to which the US is a party, is as follows in Protocol I, Article 47.2:

A mercenary is any person who:
(a) is specially recruited locally or abroad in order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict; and
(f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

Blackwater contractors do security guard, logistics work, training and related jobs abroad on contract for the US government or under US government license. They are not "specially recruited" to "fight in an armed conflict" or to take "direct part" in hostilities. Their main motivation is to serve their country again, not "essentially the desire for private gain;" as we'll see below, Blackwater contractors are well paid financially, but they pay high taxes and receive none of the non-taxable benefits that military personnel receive, so in the end, the compensation is comparable to those on active duty. All Blackwater personnel guarding the State Department are nationals and residents of the US, a party to the conflict (support staff are multinational). So they do not meet the Geneva Conventions' six standards to be considered mercenary.

Consequently, Papantonio is slandering American veterans who return from their private lives to serve their country again in wartime. The story of helicopter pilot Art Laguna, who gave his life in defense of a trapped US diplomat in Iraq two years ago, shows the caliber of the military vets who join Blackwater: Unusually dedicated people. The Defense Department gave Art Laguna the Legion of Merit posthumously last year, citing his "exceptionally meritorious conduct in the performance of outstanding services and achievements." Click here for the story.

2. Papantonio says that Erik Prince's (deceased) father funded a "neo-con[servative] revolution." Again, the trial lawyer is wrong, misusing a word intended as a pejorative. Edgar Prince funded Reagan-line social conservatives, including leaders of evangelical Christian causes. Those folks are very different from neo-conservatives, a movement founded by Norman Podhoretz, who characterized neo-cons as liberals "mugged by reality." Neo-cons and social conservatives have seldom been comfortable with one another on major issues; neo-cons tend to be hawkish on defense issues but more liberal on social matters. Many prominent neo-cons turned their backs on their Marxist backgrounds, which is why so many on the left particularly hate them. Neo-conservative movement ideology centered around Podhoretz and other Jewish intellectuals with Commentary magazine - a totally different kind of movement than what Edgar Prince supported, which was based on Protestant Christianity. (Erik Prince is not an evangelical but a Catholic, so his views are not the same as those of his late father.) But "neo-con" is now an unpopular epithet, used both as a means of discrediting the recently-departed Bush Administration's first-term defense team that included some prominent neo-cons. It's also a code word for "Jew" among some closet anti-semites.

3. Papantonio is wrong when he states, "today, the Prince family's private army numbers about 25,000 strong." That's an outrageous estimate. It's not even on the most oddball, foil-hat conspiracy websites. Papantonio must be making it up. It looks like he is referring to the number of private security guards in Iraq, which is estimated at about 25,000, but most of those are Iraqi nationals working for other (mainly Iraqi) security companies.

Blackwater makes up only about 1,000 of the private security guards in Iraq, perhaps even fewer. If one adds the press reports and State Department testimony of Blackwater personnel abroad, and the company's own statements, one finds that the actual number of Blackwater personnel at about 700 in the US and between 1,000 and 3,000 contractors abroad. All Blackwater contractors abroad are either in the direct employ of the United States government, or operating with US allies under explicit US government permission and license. Many of these people are trainers and logisticians, not guards.

4. Papantonio is wrong when he claims, "Soldiers enlisted in the U.S. military get paid about $70 a day to put themselves in harm's way, while Mr. Prince's private soldier gets about $1,500 a day for facing the same risks." This is nonsense, an allegation that was debunked during a congressional hearing nearly a year-and-a-half ago, and by the Congressional Budget Office (CBO) in August 2008. Blackwater guards make only a fraction of that, and they have to pay their own expenses, from food, housing and healthcare to self-employment taxes and other items that soldiers receive as part of their non-taxable benefits. A 2007 Serviam magazine study found that the compensation is roughly the same. Blackwater has published its own comparison figures.

The CBO discussed cost comparisons less exaggerated than the figures Papantonio uses, and discounted the data. "Those figures are not appropriate for comparing the cost-effectiveness of contracting the security function or performing it using military personnel," according to the CBO. "The figures of $1,222 a day represents the contractor's billing rate, not the amount paid to the contractor's employees. The billing rate is greater than an employee's pay because it includes the contractor's indirect costs, overhead, and profit." CBO says a better comparison would be to estimate the total cost to the government. "CBO performed such an analysis, comparing the costs of a private security contractor with those of a military alternative. That analysis indicates that the costs of the private contractor did not differ greatly from the costs of having a comparable military unit performing similar functions."

5. Papantonio is wrong when he says that Blackwater guys are unaccountable to American law. He claims, "to this day, the lawyers for the Prince-family soldiers are still arguing that these mercenaries can't be prosecuted under traditional criminal and civil U.S. statutes." This claim is false. Indeed, some prominent legal scholars say that Congress never bothered to keep the laws up-to-date, creating a "legal vacuum" and accountability problems. Keeping federal laws up-to-date are up to Congress, not Blackwater, to solve. Blackwater operates under the laws in existence - some of which are either imprecise or contradictory - and it has urged that the laws be updated so that the company's work can be more specifically defined.

6. Papantonio is wrong when he implies that Blackwater is in danger of becoming an "independent, unchecked power in America." The company is tightly regulated under a host of state and federal laws. Its operations are regulated by the Justice Department, Defense Department, Treasury Department, Commerce Department and State Department. It is subject to the same gun-control and export laws that govern everyone else. Where laws haven't kept up with the outsourcing trend, they have been amended, and Blackwater has been urging Congress to continue updating the law. Congress even passed a law that Prince personally advocated in testimony before Congressman Henry Waxman's oversight panel on October 2, 2007.

7. Papantonio is wrong when he says that the US won World War II without the use of "American mercenaries." Perhaps he's never heard of the famous American Volunteer Group (AVG), better known as the Flying Tigers, led by Claire Chennault - a private air force of American aviators who fought the Japanese in Burma, China and Australia. Most people are familiar with the AVG's famous P-40 fighter plane with its distinctive shark-mouth paint job (pictured). Other "American mercenaries," as the trial lawyer would define them, were the armed civilian crews of the Liberty Ships who ferried supplies across the Atlantic to make D-Day possible. The US relied heavily on private contractors to support the military during World War II. In 1941, prior to the Japanese attack on Pearl Harbor, Congress passed the Defense Base Act (DBA) to provide insurance for civilian contract workers on US military bases, an Act that Congress has expanded over the years as the contracting sector has grown.

8. Papantonio is wrong when he says that George Washington and Thomas Jefferson would have opposed private military companies to do outsourcing military work in the service of the United States. As soon as he became Commander in Chief of the Continental Army in 1775, Washington outsourced a naval force, without consent of the Continental Congress, leasing private ships and hiring private sea captains as what he called "privateers." Military historian James L. Nelson documents this in his new book, George Washington's Secret Navy. (See how Nelson's account takes the legs out from under another Blackwater critic, Bill Sizemore of the Virginian-Pilot.)

Washington as general and Jefferson as a member of the Second Continental Congress personally supported the legalization and regulation of private military companies to make war on British shipping, in March, 1776. Washington commanded ships that worked in partnership with privateers, and during the war he even held an ownership stake in a private warship. As president, Thomas Jefferson made extensive use of private warships to compensate for US naval weakness in defense of American trading interests against the Barbary Pirates in the Mediterranean. Robert H. Patton's book Patriot Pirates: The Privateer War for Freedom and Fortune in the American Revolution is a great introduction to the subject in the 1770s and early 1780s. Privateering is one of the few businesses specifically authorized in the US Constitution, under the "letters of marque and reprisal" clause in Article I, Section 8. Papantonio is a trial lawyer who doesn't even know the Constitution.

9. Papantonio makes the preposterous claim that "Blackwater has reached a level of overgrown and unchecked power that makes it capable of overpowering the military of many of the world's governments." The company can do nothing abroad without the legal authorization of the State Department, Commerce Department, Defense Department and Justice Department. Its powers are not unchecked at all. Blackwater is liable under state and federal gun control laws, military export laws, labor and safety laws, and a host of regulations that fall under those laws.

"Blackwater spokesmen tell us that their mercenaries operate under a pledge of strict loyalty and patriotism," Papantonio says. "But take time to follow the story about this mercenary group, and you will wonder who or what entity actually benefits from that loyalty pledge." '

Papantonio's attack on Blackwater is one of the most ignorant this blogger has ever seen. Phony and sloppy allegations like his are what have given many well-intentioned people a false impression of the company and its role. The more people know about Blackwater, the more they appreciate what it does. So it was no surprise when last summer, a US Senator receiving Blackwater protection in Afghanistan said in comments picked up by US News & World Report, "Blackwater is getting a bad rap." That senator is now the new president of the United States.


Loopster said...

Somebady should sent this link to Mr. Papantonio.

(Yes, a UN website)

There he will find this paragraph from Mr Jose Luis Gomez del Prado (UN's Working Group on Mercenaries):

"Gomez: For instance in Iraq, even with the definition, even if the US had been a state party to the Convention by the mere fact that in the definition it states that the mercenary has to be from another country, US citizens cannot be taken as mercenaries. So it is extremely difficult and this is why we have engaged in this process of proposing to the international community something that is additional to the International Convention on Mercenarism."

But I am pretty sure that this time a statement from a UN's official won't be enough for the journos...

TCO said...

This is a good article, well grounded in facts and laid out in a logical rebuttal. I'd like to see more of the same.

I passionately support BW although I have the objectivity and moral courage to have been critical of some of their decisions. It's important to differentiate between isolated events where a company's employees make mistakes and painting the the entire organization with the same broad brush. This is where the journos really drop the ball. They take the easy way out and just make the corollary between the actions of a few and the org as a whole.

As you rightly point out the word 'mercenary' is a loaded term even though it actually has a clear and specific definition, legally speaking. It's reckless and irresponsible to use that word unless it is warranted. In the case of BW specifically or in contractors in Iraq generally we do not meet that definition. Period.

I just want to commend you for this article as it is a balanced and logical argument and not the typical 'hair on fire' stuff I see in defense of all costs and with no level of objectivity. No org is perfect, not BW, not Triple Canopy, not DynCorp and by the way not GE, Siemens, Kraft, Exxon, GM, Ford, certainly not Bank of America, CitiGroup, etc, etc. The point is not that firms or their employees won't make mistakes its how will the org respond to those mistakes when (not if) they are made. That is the hallmark of a well lead organization.