Legal Analyst: Government Might Not Have the Law On Its Side

The federal case built against the five former Blackwater men rests on a thin reed that has no legal precedent. That's according to yet another legal analyst who has blown holes in the credibility of the Justice Department's prosecution.

The prosecutors' choice to rest the case heavily on the Military Extraterritorial Jurisdiction Act (MEJA) provides "special opportunities for the defense, and headaches for the prosecution," says Charles Putnam, co-director of the Justiceworks program at the University of New Hampshire.

"It is fair to say one of the things the defense attorneys will do is to hold the government's feet to the fire and make sure the law works the way it was supposed to work," Putnam says.

One of the accused, former Marine Evan Liberty, is from New Hampshire, and he's getting a lot of public support from the people who know him personally. Liberty's hometown newspaper, Foster's Daily Democrat, has run a series of supportive articles about him and the case.

Scholar: US Left 'Legal Vacuum' for Contractors

The US government and Congress failed to update laws and regulations to govern the actions of private military contractors abroad, creating a "legal vacuum" that will make it extremely difficult to make its case against former Blackwater men accused of killing civilians while protecting an American diplomat.

"Carl Tobias, a professor at the University of Richmond School of Law, said it would be difficult for the government to win the case because of jurisdictional questions and the immunity issue," the Los Angeles Times reports.

"'Some of these problems result from the U.S. government's failure to create a clear, workable framework for private security contractors, so they operated in a legal vacuum,' Tobias said."

US Contractors Soon Subject to Iraqi 'Justice'

Has the US sold out the private companies who make it possible for American civilian government operations in Iraq? It sure looks that way. But all the facts aren't out yet, and private security companies are taking a wait-and-see approach.

The US and Iraqi governments reportedly have reached an agreement that would protect uniformed American military personnel from Iraqi prosecution except for serious crimes committed while not on duty, an arrangement similar to what the US has done in other countries.

But the State Department appears to have shot itself in the foot, at best, by not ensuring the same protections for the private contractors who do the job the military can't or won't do. Private security providers like Blackwater won't be shielded from Iraq's corrupt and dysfunctional "justice" system, according to news reports.

If the reports are true, it's going to be even harder for Blackwater to defend American diplomats in Iraq - because in some of the most highly publicized incidents since early 2004, Blackwater guards fell under attack from Iraqi military and police personnel. Uniformed Iraqi personnel lured four Blackwater guards into a deadly ambush in Fallujah in March 2004. Iraqi police reportedly shot at Blackwater security guards as they defended a US diplomat in September 2007, resulting in the deaths of 17 people at Nisoor Square.

The State Department isn't even saying whether or not the arrangement is ex post facto; it's unclear whether the US will allow Iraq to try contractors for actions allegedly committed prior to when the pact becomes official. The arrangement is to become effective on January 1, 2009.

"It has not yet been publicly resolved how and where the Blackwater guards will be tried and senior officials said they did not know whether the new pact would apply retroactively," the International Herald Tribune reports.

"US officials have said that under the deal, US military personnel would retain immunity from Iraqi law except in cases of serious crimes committed off base.

"But the pact explicitly says US Defense Department contractors will lose immunity, said the senior US officials, who spoke on condition of anonymity. They said contractors for the State Department and other agencies are expected to be treated the same way."

Blackwater Announces Advanced Export Compliance Initiative

Given the highly complicated and often contradictory federal laws and regulations concerning the export of military and security-related goods and know-how, Blackwater announces what it calls "a comprehensive initiative to enhance export compliance throughout its global operations."

According to a release distributed by the Earth Times, Blackwater says, "The initiative, under development for several months, includes the creation of an independent committee of experienced outside experts to oversee export compliance and the addition of a Vice President of Export Compliance.

"These efforts are supported by a global training initiative, proposed enhanced business controls and an increased compliance staff.

"'US export controls are a key part of our country's national securityand foreign policy. Blackwater, a partner with the US Government in many important programs, has an obligation to also be a partner in compliance,' said Erik Prince, Blackwater Founder and CEO. 'Our company has experienced remarkable growth in the last few years. This growth, our work for the US Government around the world, and the nature of the services we offer have created compliance challenges. The comprehensive initiative announced today is our direct response to those challenges and our recognition of the importance of these controls.'"

The independent panel, called the Export Compliance Committee, represents a cross section of talent and expertise. Committee members, who have full and independent authority of Blackwater's export control matters, are:

• Robert C. Bonner. Former US Attorney, US District Court Judge, Commissioner of US Customs, the first Commissioner of US Customs and Border Protection, and Administrator of the US Drug Enforcement Administration (DEA);


• Asa Hutchinson (pictured). Former US Attorney, Administrator of the DEA, US Congressman from Arkansas; and the first Under Secretary of Homeland Security;


• Carol R. Marshall. Former Vice President of Ethics and Business Conduct at Lockheed Martin, Senior Vice President for Ethics and Business Conduct at MCI, Chair of the Ethics Resource Center Fellows Program, and Chair and Working Group Liaison to the Defense Industry Initiative on Business Ethics.
  

Blackwater's new Vice President of Export Compliance is Karen Jones, most recently the Director of Import-Export Operations for Raytheon Missile Systems Division. "Ms. Jones is an accomplished trade compliance professional with a deep resume. She is an expert in integrating export licensing, compliance and a culture oftransparency into complex global operations. We look forward to hercontribution in making Blackwater's compliance system the standard of the industry," said Prince.

The company has also strengthened and expanded its existing compliance programs and developed an online compliance training program for employees and independent contractors.

Paper: Blackwater and Sheriff Probably Did Nothing Wrong, But It Doesn't Matter

Remember the big stink a couple weeks ago when federal agents confiscated several automatic weapons stored at Blackwater's armory and owned by the local sheriff's department? The incident that the media called a "raid" and tried to use as proof that the company had broken federal firearms laws?

Well, there's probably nothing to it, according to a local paper published near Blackwater Worldwide's headquarters in North Carolina. The editors are harrumphing that everything just might have been on the up-and-up, but they're not going to give anybody the benefit of the doubt.

Even if the weapons situation was legal and aboveboard, sniff the editors of the Richmond County Daily Journal, the local sheriff showed poor judgment. They don't explain why the judgement was poor other than the obvious fact that they don't like Blackwater and probably don't like guns. Here's what they say in their editorial:

"The federal investigation into a firearms deal involving the Camden County Sheriff’s Office and security contractor Blackwater Worldwide may ultimately bear out what the county’s attorney and a spokeswoman for the company have already claimed about the transaction: that it was legal and neither party did anything criminally wrong."

"But," say the editors, "we’re not ready to draw that conclusion just yet."

Subjecting US Contractors to Iraqi Justice Will Undermine War Effort

By making American contractors subject to Iraq's erratic, corrupt and dysfunctional justice system, the US will be undermining its own war effort.

Of course, that's precisely why certain US congressmen have been complaining that the Bush Administration won't allow Americans to be handed over to the Iraqi "justice" system. But now come official reports from Iraqi officials - and no comment from the US - that Washington has assented to just what opponents in the war have been demanding.

Angry American contractors in Baghdad say that if the US betrays them by making them liable to Iraqi laws, they'll quit. None of note threatened to quit when the US tightened its own laws to hold contractors accountable for any misbehavior or crimes they committed abroad.

The military and State Department cannot function in Iraq without private contractors to provide services from housekeeping and logistics to diplomatic security. State has strongly backed the contractors until now.

Blackwater declined to comment for the article, with officials saying they preferred to wait until the US announced an official policy. (Photo shows Blackwater men practicing to defend a diplomatic convoy in Baghdad.) Other contractors did comment. The military newspaper Stars & Stripes carries the story.

"'Having worked for two years and two months in Iraq, I can tell you without a doubt, I would in no way work if I fell under Iraqi Law,' a deputy sheriff who trains Iraqi police said in an e-mail to Stars and Stripes. 'Are you kidding? You wouldn’t be able to get but the most desperate people to work if they fell under their ridiculous laws.'"

"'I would immediately have to consider my options concerning leaving this country,' another Department of Defense contractor said. 'They, the Iraqis, cannot rule themselves and now they want to try and rule contractors.'"

Jaco Botes of the International Contractors Association says, "By taking away contractor immunity, contractors are being marked as expendable assets — assets that will be placed in the hands of a very shaky and corrupt law system."

Iraq Says US Has Agreed to Strip American Guards of Legal Protections

If the Iraqi foreign minister is to be believed, the United States "has agreed" to strip legal protections from Americans who guard US officials from terrorist attacks.

If true, this means that the US is agreeing to place private security contractors in the hands of Iraq's dysfunctional and corrupt judicial system. Current policy protects American private security contractors from prosecution in Iraq, though they may be tried in the US under American law.

The French AFP news service quotes Iraqi Foreign Minister Hoshyar Zebari as saying, "The immunity for private security guards has been removed. The US has agreed on it."

Zebari made the comment to AFP after he briefed Iraqi lawmakers on an Iraqi-American security agreement currently under negotiation.

However, the US isn't saying anything. A US Embassy spokeswoman in Baghdad declined comment, telling AFP, "We do not comment on the contents of ongoing negotiations." Separately, a White House official declined comment to the New York Times.

The Washington Post reports that Iraq is also pushing for the US to lift legal protections for American military personnel.

State Department lawyers denied Blackwater's camera request in 2005

When Blackwater asked the State Department for on-board cameras for its diplomatic security vehicles in Iraq, State Department lawyers refused.

Blackwater says it had asked for the cameras on May 17, 2005, "in response to a false accusation against one of our teams in Baghdad." Blackwater employees searched for prices and models of various still and video cameras to be mounted on dashboards and in rear windows.

The Washington Times reports the story in its October 24 edition.

A State Department Diplomatic Security agent in Baghdad, David Brackins, agreed, but the next day, on May 18, State Department official Paul Nassen called Blackwater and told the company to "stand down" because lawyers had "legal issues" and would not allow the company to incorporate the cameras.

Blackwater is strictly bound under a 1,000-page contract to comply with all State Department specifications and wishes.

(Photo: Dash Hound 1 video camera, one of the models that Blackwater considered and that State Department lawyers denied in 2005.)

Rep. Price's legislation will help Blackwater

Congressman David Price (D-NC) gave Blackwater a helping hand when he introduced a bill to make American companies working on US government contracts abroad liable under federal law.

Blackwater and other private contractors have been in a legal netherworld in many ways, because Congress decided to rely on them after having slashed the military, yet never bothered to update the law. People have been taking it out on Blackwater because Congress didn't create new accountability laws.

So Congressman Price (pictured) has stepped up to the plate. And Blackwater CEO Erik Prince says he's "happy" with Price's legislation, HR 2740, to fill those holes in the law.

In his October 2 testimony, Prince challenged lawmakers several times to get a handle on government spending on contractors, and to do real studies about whether contractors or federal employees would be more cost-effective for the taxpayer. Though few on the panel expressed interest in taking him up on the idea, Prince repeatedly said he welcomed federal scrutiny of his company and the private contractor industry.

Prince also chided congressmen who seemed to expect him to break the law by physically detaining Blackwater personnel suspected of committing crimes. It is against the law for his company to detain anyone, he told them patiently, and it's Congress's responsibility to ensure the existence of adequate laws. Until Congress does, Blackwater will do as best as it can.

For an interesting argument about the issue of legal accountability and the October 2 Waxman hearing, see Mark Hemingway's piece in National Review.