Obama Administration Stands by DoD Ruling that Protects Blackwater Men

The Department of Defense is standing by a 2007 letter that guts federal prosecutors' case against five former Blackwater diplomatic security guards.

Prosecutors have built their case against the Raven 23 team members on the thinnest of legal principles, with forensic evidence so weak that they can't even say who allegedly killed whom in the September 2007 shootout at Nisoor Square in Baghdad.

One of those legal tenets is the idea that the Blackwater guards, who are hired by the State Department and not by the Defense Department, are actually operating in support of a DoD mission and therefore are liable under federal laws governing DoD.

Now, the Associated Press is reporting that the Obama administration is standing by a 2007 letter by Deputy Defense Secretary Gordon England, who wrote that the Blackwater contractors "were not engaged in employment in support of the DoD mission" and that consequently the Justice Department lacked jurisdiction to try the men.

Pentagon spokesman Chris Isleib tells AP that DoD's view is unchanged.

Congress had written the law to apply only to contractors in support of DoD missions, not State Department missions. When Blackwater became a politically partisan issue, lawmakers critical of the Bush Administration tried to bend the meaning of the law to make it apply to the State Department security contractors. Prosecutors, under pressure to appease the Iraqi government to try the men, used that same flawed logic.

According to AP, "Defense contractors can be prosecuted in US courts for crimes committed overseas, but because of a legal loophole, contractors for other agencies can face charges only if their work assignments supported the Defense Department. Blackwater, the largest security contractor in Iraq, works for the State Department. Five of its guards face manslaughter charges for a 2007 shooting that killed 17 Iraqis."

The defense team has provided evidence showing that their convoy was fired upon, and not even the prosecutors are attempting to prove who killed whom. Other reports say that a number of the Iraqi dead did not undergo autopsies prior to burial.

Prosecutors Use Admitted Killer to Twist Facts Against Blackwater Men

The turret gunner who admitted to killing civilians at Nisoor Square has made a false statement cooked by prosecutors in their bid to make the facts fit their case.

Jeremy P. Ridgeway pleaded guilty to the killings and is now seeking leniency by turning state's evidence against his former Blackwater colleagues. In the first paragraph of his "Factual Proffer In Support of Guilty Plea," he makes a false statement:

"Defendant Ridgeway's employment as a Blackwater contractor related to supporting the mission of the Defense Department in Iraq."

The statement is false because, as the proffer specifies, Ridgeway and colleagues were contractors for the Department of State.

This is an important point. Federal prosecutors are relying on the Military Extraterritorial Jurisdiction Act (MEJA), which applies only to civilian contractors for the Department of Defense. MEJA was later amended to include contractors who "support" the "mission" of DoD, which is why prosecutors made Ridgeway use that wording in his proffer.

The prosecution's case is weak. We reported a year ago that the Justice Department would "shoehorn the facts" to make its allegations stick.

Blackwater clearly and explicitly is supporting the State Department's mission, not the Pentagon's, in Iraq. Its Worldwide Personal Protective Services contract is with the State Department Bureau of Diplomatic Security, not with the military. The contract is to protect US Embassy civilian personnel - including diplomats and US Agency for International Development people - and, according to reports, explicitly places Blackwater security personnel in Iraq under the operational control of the State Department.

Constitutionally, the State Department is the highest-ranking cabinet agency, and therefore outranks the Defense Department under the law. DoD supports the State Department, not vice-versa.

Hat tip to The Skeptical Bureaucrat for pointing this out.

Congress Targets PSCs, Potentially Ruins Iraq Efforts

Congress may be on its way to hamstringing our efforts in Iraq, the Politico reports. A new bill shepherded through the Senate Armed Services Committee by Chairman Carl Levin (D-MI, pictured left) would could allow Congress to cut off existing contracts made by the executive and would also allow the government and private security contractors to be sued. And that, the Politico argues, could do serious damage to the government's attempts to stabilize the region.

"Interpreted broadly, the measure could slash the number of private security contractors now operating legally in Iraq.... Even if getting rid of the security contractors in Iraq would fix a problem of adequate oversight, it would widen personnel gaps at the State Department and the Pentagon. The agencies don't have enough personnel to take over the security for officials, installations and reconstruction zones that contractors currently provide.... In a recent Senate hearing, P. Jackson Bell, the Pentagon's deputy under secretary for logistics and materiel readiness [pictured right], said a broad policy against private security contractors could affect up to 9,000 individuals. Replacing that many contractors would require even more soldiers and Marines, due to a demanding rotation schedule."

Part of the problem with the new legislation is its use of some ambiguous terms, such as "inherently governmental function" and "highly hazardous." Would mundane missions such as guarding mail fall into this category?

A Pentagon official familiar with the issue reiterated these concerns about unclear terminology: "Contractors are not supposed to do things like combat," the official said. "So the question comes in, 'What is combat?' And there is no easy answer to that."

"Alan Chvotkin, executive vice president and counsel of the Professional Services Council," which represents a number of government service contractors, including Blackwater, "said that the security industry is not averse to regulations but that the regulations need to be clear. For example, if Congress wants to prohibit contractors from firing the first shot, it should spell that out. Bogging down regulations with catchphrases can create more confusion, Chvotkin said."

Use of Force by PSCs Extremely Rare

United Press International reports that the use of force by private security contractors (PSCs) is extremely rare, according to congressional testimony by Jack Bell (pictured), the deputy under secretary of defense for logistics and material readiness.

"He said that between August 2004 and February 2008, 'a period of rampant insurgency and sectarian violence in Iraq,' there were 19,268 contractor convoys run for the U.S. military. There were 1,441 attacks against them. But in only 151 cases -- less than 1 percent of convoys overall, and just over 10 percent of those that were attacked -- was the discharge of firearms by [PSC] personnel reported. And in some of these 151 incidents, only warning shots or disabling shots aimed at vehicles were involved."

UPI points out that these figures are for PSCs operating with the Pentagon and does not include those under State Department contract; "nonetheless, these figures and documents challenge the popular conception of PMCs as out-of-control 'cowboys.'"

Blackwater Gets New Rules - Sort Of

A few hours ago the Associated Press fired off a story with the headline, "Iraq Security Guards Getting New Rules." Though lacking the vitriol of some others, the AP story is typical of ambiguous and misleading media reporting on Blackwater and other private security contractors.

The opening sentence of the story says that "Bush administration officials outlined stricter rules for these armed guards during a three-hour meeting Wednesday at the Pentagon." But read a little further: "Chris Isleib, a Pentagon spokesman, said the closed-door meeting was an opportunity for both sides to exchange opinions and ideas." That hardly sounds the government crackdown on out of control contractors, as some would construe it to be.

Read a little further and you find this gem: "Security contractors are covered by the same code of justice that applies to American military personnel." You'd never have guessed, given the way the media loves to talk about Blackwater 'lacking accountability.'

Finally, the AP points out that "the military does not want to assume responsibility for guarding large numbers of US officials, and the State Department's own security force is too small and already stretched too thin."

So let's review: a story that initially looks like Blackwater getting reprimanded by the government ends up telling us that the private security contractor is filling a gap no one else is willing or able to fill, that they're doing so within the framework of the Uniform Code of Military Justice, and in open and ongoing dialog with government officials. Why couldn't they have said that from the start?

Blackwater backs Pentagon memo on PSCs in Iraq

Consistent with its support for drawing the lines more sharply about private security operations, Blackwater issued a statement December 5 supporting a memorandum between the Pentagon and the State Department governing its diplomatic security services in Iraq. The text of the statement follows:

"Blackwater fully supports the memorandum of agreement signed today by the Department of State and the Department of Defense regarding private security companies operating in IRaq on behalf of the US Government. Blackwater has always supported the identification of contractor standards and clear rules of accountability. Increased coordination and constant review of procedures will provide even better value to the Government. Blackwater looks forward to complying with new rules as we continue to serve the United States Government."

Why military can't do Blackwater's job

One of the most common questions concerning Blackwater is, Why can't the military protect our diplomats in Iraq?

The Washington Post provides us the answer. Essentially, the Pentagon lacks the personnel with the proper training, lost interest in protecting the diplomats when the State Department opened its huge new embassy in 2004, and the State Department's own Diplomatic Security cadre are too small and too overextended to do the job.

Post reporter Karen DeYoung's bias seeps through the first quarter of the October 21 article, but after she settles her scores she provides much new and balanced information.

Here's a summary of some of that reporting: After the invasion of Iraq in 2003, the Coalition Provisional Authority (CPA) led by Paul Bremer reported directly to the Pentagon. The Pentagon contracted Blackwater to provide security for the CPA chief and other top US civilians in Iraq.

In 2004, with the US preparing to return sovereignty to Iraqis and to build a huge embassy in Baghdad, Defense Secretary Donald Rumsfeld "lost a bid to retain control over the full US effort, including billions of dollars in reconstruction funds," according to the report. "A new executive order, signed in January 2004, gave State all authority over all but military operations. Rumsfeld's revenge, at least in the view of many State officials, was to withdraw all but minimal assistance for diplomatic security."

"'It was the view of Donald Rumsfeld and [then-Deputy Defense Secretary] Paul Wolfowitz that this wasn't their problem,' said a former senior State Department official. Meetings to negotiate an official memorandum of understanding between State and Defense during the spring of 2004 broke up in shouting matches over issues such as their respective levels of patriotism and whether the military would provide mortuary services for slain diplomats."

But many at State conceded DoD's point that soldiers lacked the training to serve as personal guards. Other diplomats were concerned that surrounding civilians with uniformed soldiers would undermine the American image in Iraq," according to the Post.

The mission was beyond the capabilities of the State Department's small Diplomatic Security (DS) service. As the opening of the new embassy approached in mid-2004, "we had to decide what we were going to do," said the former State Department official. "We had to get jobs done, and to do that we had to have some protection."

The State Department "chose the most expedient solution: Take over the Pentagon's personal security contract with Blackwater and extend it for a year," the Post continues.