Pentagon Letter Complicates Blackwater Prosecution

A Pentagon determination two years ago that Blackwater security forces working for the State Department were not subject to U.S. civilian criminal laws now may undercut the Justice Department's case against five of the firm's guards for manslaughter.

That's according to a story by the Associated Press.

"The Pentagon wrote in 2007 that Blackwater Worldwide contractors in Iraq are not subject to U.S. civilian criminal laws. That position undercuts the Justice Department's effort to prosecute five Blackwater security guards for manslaughter.

"The letter highlights the uncertainty prosecutors face in bringing charges against contractors involved in a September 2007 shooting that left 17 Iraqis dead in a Baghdad intersection. Iraqis are closely watching how the U.S. responds to the shooting, which inflamed anti-American sentiment abroad.

"Defense contractors can be prosecuted in U.S. courts for crimes committed overseas, but because of a legal loophole, contractors for other agencies can only face charges if their work assignments supported the Defense Department."

"Defense Department spokesman Chris Isleib said Monday that the views in the letter remain the view of the Defense Department.

"Justice Department spokesman Dean Boyd disagreed.

"'The position taken by the Justice Department in the Blackwater prosecution is the position of the U.S. government,'" Boyd said.

Government Inc. wonders how we should feel about that. It seems that, at minimum, we need to recognize that this is another teachable moment about what can happen when the government outsources so much sensitive work.

In other words, unintended consequences from sweeping "procurement reform" that was supposed to make the government more efficient.

By Robert O'Harrow |  February 5, 2009; 1:50 PM ET Contract workers , defense , iraq
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Hmmmm....It's seems logical that the Pentagon could determine that Blackwater security forces working for the State Department are not subject to the UCMJ.

It seems equally logical that it is up to the Justice Department, not the Pentagon, to determine if they are subject to civilian law.

There is already precedence for prosecuting contractors in civilian court for crimes committed while employed by the U.S. Government overseas.

http://www.newsobserver.com/nation_world/passaro/

Posted by: markswisshelm | February 6, 2009 12:45 AM

What seems obvious to any concerned observer is the cozy nature and assuredness of the Pentagon under the Bush Administration to issue such proclamations. What bothers me is the fact that Blackwater has done everything in its power to shield itself from scrutiny as well as culpability for any of its actions in Iraq, even to the point of hiding information from family members of its employees killed on the job.

With any luck, the regime change in Washington will usher in a refreshing breath of candor and responsibility on the part of those who profit from the Iraq war zone, including contractors who are bilking U.S. taxpayers for sloppy construction or for jobs never completed let alone those who may be responsible for innocent deaths.

Fingers are crossed, but not holding my breath.

Posted by: BabyJesusHorse | February 6, 2009 9:12 AM

DoD probably has the better argument. Because of the lack of jurisdiction of U.S. courts to hear cases involving criminal activity by contractors accompanying the forces in the field, such as in Irag, Congress passed the Military Extra-territorial Jurisdiction Act (MEJA). The first section of MEJA, 18 U.S.C. 3261, states

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; or
(2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice),
shall be punished as provided for that offense.
From this, it is difficult to see how MEJA provides the jurisdictional basis to prosecute someone who was not a defense contractor, military member,or DoD employee.

Posted by: novahorn | February 6, 2009 2:08 PM

I served in the Army during the Korean Campaign. There was never any question that if you committed a crime, you would have to stand trial. If found guilty, you would serve whatever sentence judged as appropriate.

Are we now back-track on these laws. All service arms, such as Blackwater, should be disbanded and thrown out of service. If we approve of them, we might as well have approved of Hitler's SS.

Posted by: ernest2x | February 6, 2009 4:34 PM

I served in the Army during the Korean Campaign. There was never any question that if you committed a crime, you would have to stand trial. If found guilty, you would serve whatever sentence judged as appropriate.

Are we now to back-track on these laws. All service arms, such as Blackwater, should be disbanded and thrown out of service. If we approve of them, we might as well have approved of Hitler's SS.

Posted by: ernest2x | February 6, 2009 4:35 PM

In the Passaro case Mr Passaro was employed by an OGA, most likely CIA. He was tried in a South Carolina state court and is still serving his prison term. Fortunately for Mr Passaro he only beat to death an Afghan farmer so he got a lite sentence. Had he beaten to death an American dog like Michael Vick the sentence would have been much more severe.

Posted by: markswisshelm | February 6, 2009 11:05 PM

I think the answer is quite simple. Allow the Iraqi courts the option to prosecute the defendants under their OWN laws. Am sure the punishment (if they are found guilty) would be much more severe than it would if they were to be convicted here. The alleged atrocities occurred there, so it's Iraq's jurisdiction. The defendants should be given the option on where to be tried and the Pentagon rules not apply so they could be tried here.

Posted by: dlsoops | February 9, 2009 1:14 PM

Letting the Iraqis prosecute seems like an easy solution, except that Paul Bremer signed a special order exempting Blackwater and other contractors from local prosecution when he was in charge of the CPA. So Blackwater benefits from a legal black hole in which they seem to be subject to no law whatsoever. Alongside rendition, Guantanamo, torture memos and military tribunals, this exemplifies a spreading stain on rule of law. Hopefully, we will begin to restore legal authority to its proper place. Those who give up liberty for security...

Posted by: kennan1 | February 10, 2009 10:55 AM

Our new President TAUGHT Constitutional Law at the U. of Chicago and he graduated from Harvard Law School. Surely he will enpanel the very BEST legal minds available to: a.) make a determination about which court(s)has/have jurisdiction to prosecute these suspects; and b.) to completely eliminate any more "black holes" in our laws that allow any American - contractor or not, to get away with murder, no matter where they are working and under what circumstances.
President Obama has a LOT on his plate now because of the destoyed economy he inherited from the Bush Administration. But I believe Americans can be assured that we couldn't have a more intelligent and knowledgable leader than we have right now to find a solution to this particular problem.
I have faith that President Obama will do the right thing for these suspects; for federal contracting requirements and rules; for our country's leadership and reputation for being a nation of laws; and for justice for the victims of these crimes.

Posted by: slickmick1 | February 10, 2009 7:08 PM

We are individually and corporately responsible for our conduct at all times, whether a contractor in a war zone or the employer of that contractor. Failing to hold these Black Water contractors to the same standards of civilized behavior we expect of our own military personnel while they function in a combat zone tells the soldier there is a separate and unequal system in play. To allow criminal conduct to escape prosecution under an arcane concept of extraterritoriality or a farcical writing of immunity means we live under articles of convenience rather than under the rule of law.

In such a system, power is all, rights are impediments, and justice is moot. If we are a moral, law abiding nation, there is no exemption from the law, regardless of where the offense occurs. Let these accused choose a venue for their trial, either Iraq or here; they must face the consequences of their actions.

To paraphrase, a criminal act by any other name still smells as foul.

Posted by: williamferry | February 11, 2009 2:41 PM

Bush and Cheney let us with a mess. An incomprehensible mess reminiscent of Pandora's Box. How foolish the American people must felt to be beguiiled by incompetence. Where is the outrage?

Posted by: joanne_albany | February 11, 2009 3:29 PM

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