No Comment — January 19, 2008, 10:43 am

Blackwater and the Administration of Justice

I spent the better part of the last year looking in some detail into a series of legal policy issues surrounding private security contractors, a process that culminated in the issuance of a report last week entitled Private Security Contractors at War: Ending the Culture of Impunity.(4 MB PDF)

The report deals with an entire industry which has popped up like mushrooms after a spring rain. But when you examine this issue, and particularly its government relations aspects, you come very quickly to a focus on one particular company, Blackwater USA, whose baroque conduct seems to supply the material for novels, if not articles in Soldier of Fortune Magazine.

Blackwater is anything but a “normal” security contractor. Its relationship with the Bush Administration is truly extraordinary in many respects. Blackwater is an unabashedly political entity, which aligns itself fully, and ideologically with the Republican Party. Its founder and owner, Erik Prince, who has been profiled very effectively by Jeremy Scahill in his comprehensive book, Blackwater, was born to wealth and privilege in the family of an automobile parts magnate with a long track record of involvement in Republican and Religious Right politics.

Prince steered the family’s fortune away from the automobile parts business and towards a new genre of business. It may be a bit simplistic to call Blackwater a mercenary outfit, because its functions are more diverse, but its self-understanding is close to the plain English understanding of that term. That is, they sell their services to governments for money. Blackwater is an outfit of contract soldiers. And it has achieved something which would at earlier points in our history been unthinkable: it has assembled an enormous private army with modernized mechanized support, attack helicopters, aircraft and even the beginnings of a navy. And until very recently, all of this was occurring under the surface, with the full collaboration of the Bush Administration, and without the sort of Congressional oversight which occurs routinely with respect to the United States military.

The focus of Blackwater’s current business lies in a contract relationship with the United States, but perhaps sensing the limited potential of that market, Blackwater has developed a very substantial international clientele. I recently examined their relationships with two governments—Azerbaijan and Jordan. What struck me most about these relationships was how they were secured and developed. In both cases, local government officials described to me extensive marketing efforts on Blackwater’s behalf by seniormost officials of the Bush Administration, who pressured and cajoled the local officials to use Blackwater and offered substantial incentives in the process.

Blackwater’s relationship with the Bush Administration is curiously symbiotic. The Administration is a heavy consumer of Blackwater’s services. It actually involves itself in marketing Blackwater to others, as if Blackwater were a for-profit extension of the Administration. Maybe it is.

In concept, there is nothing wrong with the United States Government promoting U.S. contractors to foreign governments. In fact, it should do that. But proper decorum requires an element of detachment and independence that is lacking whenever Blackwater turns up.

One career State Department observer put it to me this way. “In Blackwater’s dealings with the Department,” he said, “I often find myself wondering who is the service provider and who is beneficiary of the services.” His point was simple: Blackwater exercised an unseen influence over the process of contracting and supervision; often the Government seems to be working for them.

I don’t know how Blackwater does this, but I suspect that it has a lot to do with partisan politics. And we get a taste of Blackwater’s highly partisan rancor today in reports out of North Carolina.

In Blackwater’s backyard, North Carolina’s third Congressional district, Walter “Freedom Fries” Jones, a Republican is seeking reelection. Jones has received campaign contributions from Prince, and has been a consistent Blackwater booster, even as his initial enthusiasm for the Iraq War has soured. Jones disavowed his vote for the Iraq War in May 2005 and in recent months has become increasingly critical of the tactical blunders leading into it, most recently calling for the appointment of Paul Wolfowitz as mayor of Baghdad, “since he got us there.”

Jones is being challenged by Marshall Adame, a 22-year Marine Corps veteran with two sons who have fought in Iraq. Adame doesn’t care much for Blackwater and what it stands for. Here are some of his recent comments:

I have interacted with many mercenary groups, including Blackwater. There is no place in the American force structure, or in American culture for mercenaries. They are guns for hire; No more, no less. The primary motivation is money. In most cases it does not matter whose money. Private Security Organizations as extensive as Blackwater, for example, should not be allowed to operate in war zones as augments of the United States of America. Private Armies represent the very things we depise as a people. Servants to the highest bidder with true allegiance to no-one.

Adame, it turns out, embraces the notion of the citizen-soldier which was initially formulated by George Washington and which forms the basis for American military doctrine through the Vietnam war (in which Adame served, incidentally). Blackwater presents a mortal challenge to that doctrine—it stands for a new view of privatized military capacity which has plenty of historical antecedents, none of them positive (in the reign of terror following the Hundred Years War, for instance).

So how does Blackwater cope with this challenge to its raison d’être? Here’s a memo from a Blackwater vice president circulated to the company’s staff, posted at the website of the Raleigh News and Observer:

There is a man named Marshall Adame who is running for congress [sic] in our district. He just put a quote online which says he wants this company and all of us to cease to exist.

Do you like your jobs? Are you sick and tired of the slanderous bullshit going on in DC? If so, would you all mind joining me in reminding Mr. Adame that he is running for office in our backyard. Tell all your friends and family too. We welcome their assistance in making this point very clear to Mr. Adame.

Anyone who wants to send a letter may do so at the following address…..

MARSHALL ADAME FOR CONGRESS
PMB #161
1250 WESTERN BLVD. #L2
JACKSONVILLE, NC 28546

His email is info@marshalladame4congress2008.com

He was too cowardly to put a phone number on the web. I ask that you keep your comments to Mr. Adame professional (well, mostly professional). We help him if our comments get threatening or too crass. Let’s run this goof out of Dodge….!

Bill Mathews
Executive Vice President
Blackwater Worldwide
850 Puddin Ridge Road
Moyock, NC 27958

Kudos should be delivered first to the Raleigh News and Observer, which has done yeoman’s work covering that odd outcropping in its backyard and to Joseph Neff, their intrepid reporter who pulled this up. This is an excellent example of Blackwater’s very heavy handed technique, which has often included acts of intimidation targeting former employees, their family members, journalists and their editors who publish information about Blackwater and its doings. (The standard Blackwater shtick consists of unsustainable claims that everything that the company does is shrouded in national security classifications, or is otherwise secret, coupled with threats to bring lawsuits against those who disclose it.)

But for all the bluntness of the Mathews memorandum, Blackwater has a very extensive and sophisticated government relations apparatus, and it scores results. I’ve looked at Blackwater contracts several times and was amazed by what I saw. I am not a government contracts expert, but I’ve been around enough government procurement contracts to have a feel for them. I’ve never seen anything like the Blackwater contracts, which look like Blackwater wrote them. Two possible explanations for this. One is that Blackwater has the best government contract lawyers that Washington has to offer (and from fleeting dealings with them, I am convinced this is true). The other is that Blackwater has relationships with the pinnacles of power in the Bush Administration that allow them to cut through the traditional rules governing contracting like a glowing red knife through butter. Simply put, Blackwater plays the most insider of insider football in Washington, D.C.

blackwater-logo

And another place we may be witnessing this is the Justice Department’s supposed investigation of Blackwater. Count me among the hardened skeptics that any serious investigation is underway and that there is any prospect of prosecutorial action being taken. I just don’t believe it. My reasons? We are dealing with the most highly politicized Justice Department in American history. It wields law enforcement tools for partisan political purposes. Its perfect track record in ignoring crimes involving contractors in Iraq is a demonstration of that thesis. Those contractors are not entirely but substantially a handful of corporations with political connections at the top of the Administration, like Bechtel’s relationship with its former board member, Condoleezza Rice, or KBR’s relationship with its former CEO Dick Cheney. Blackwater’s ties are as deep, and in fact Blackwater continues to offer a ready escape pod for a number of figures bailing out of Team Bush in its last year. The governing rule at the Bush Justice Department is, as one loyal Bushie U.S. attorney down south likes to say, you don’t go after the “home team.” Blackwater belongs right at the core of the G.O.P.’s “home team.”

As James Risen and David Johnston reported in the New York Times on Wednesday, the Bush Justice and State Department recently gave a couple of private briefings on Capitol Hill—and at the Defense Department—with respect to the status of the investigation of the September 16, 2007 incidents involving Blackwater at Baghdad’s Nisoor Square. After giving the usual disclaimers, the briefers went on to state that notwithstanding the FBI’s conclusion that the facts showed multiple homicides for which no viable defenses existed, at present the prospects that charges would be brought were slim. Why? Two reasons were advanced. First, they stated that Acting Deputy Attorney General Craig Morford had severe reservations about whether the Military Extraterritorial Jurisdiction Act (MEJA) would apply in a case like this, and in any event, it had never been applied this way. Second, they said that State Department investigators had granted limited immunity to those who gave statements and they were skeptical that they would be able to build a case than would not collapse under the weight of that grant of immunity.

I interviewed two persons who were present at those briefings and who requested that their names be withheld. Both had roughly the same reaction. I thought these people were supposed to be prosecutors. It sure didn’t sound that way to me. They sounded like criminal defense counsel arguing against bringing charges. But even more telling one added, “They seemed to be focused on the reaction from their audience. It was as if they were really engaged in an exercise trying to judge ‘if we walk away from this, what kind of blow-back are we going to get?’”

And that is just what I expect is driving the calculus at Justice right now. It’s not being driven by traditional prosecutorial calculus. It is being driven by a simple partisan political profit and loss estimation. How inspiring.

There are a few other points to throw into the mix. Note that the weaknesses that the Justice Department lawyers are citing are not problems inherent to the case, they result from inattention or inaction by the Justice Department. That is, the Bush Administration has crafted the defenses or weaknesses that the Blackwater employees will use to dodge this bullet.

First, I disagree with Craig Morford’s analysis of the MEJA, and I’ve studied the issue for a year with a number of the smartest lawyers in the country, including law of armed conflict specialists. (That’s the relevant specialization on this point, and the comments that come of the Justice Department are consistently so poorly informed on this score, that you have to wonder whether they have anyone in house who’s taken the basic law school course.) I think MEJA provides a basis to act. And even if it doesn’t, the Justice Department seems to have lost track of a number of other statutes that provide a basis for prosecution, like the War Crimes Act. Beyond this, Justice is saying it has no precedent. And that comes directly from the Justice Department going AWOL and failing to take action in any of the hundreds of cases, dozens of which are well documented, coming out of Iraq and Afghanistan where the MEJA could have been used. Some of those cases have been sitting in the hands of federal prosecutors for years with no evidence of action taken. When Congress has pressed the issue, Justice has given brush-off responses (some of which, the report details, are false). So the essence of this defense is that the Justice Department uses its failure to act on its responsibilities as a justification for continued failure to act. What sort of rationale is this?

If the Justice Department felt there was some shortfall in the statute, it should have come to Congress for a fix. Instead it has repeatedly stated, through both Attorneys General Gonzales and Ashcroft, that it has the tools it needs. And it has failed to act. This does not bespeak good faith. In fact it suggests dereliction in its principal law enforcement function.

Second, it points to the immunity granted by State Department investigators. How did this come about? Those facts need to be scrutinized because they expose, once more, unconscionable abdication of responsibility by the Justice Department. After September 16, the Nisoor Square incident was on the front page of newspapers around the world for two weeks. During this period the Bush Administration reacted by offering immediate pronouncements exculpating Blackwater, which turned out to be false. Then there was an alleged internal investigation which we learned to be of Blackwater by Blackwater. Then there was a scramble, followed by interagency fingerpointing and accusations between State and Defense, each of which sought to control the case and fend off Iraqi involvement.

But the law was always clear. One agency has responsibility for the matter. That was the Department of Justice. And it was nowhere to be found. Utterly disinterested in fact. Only two weeks later, under intense media pressure and after Congressional inquiries, did it dispatch an FBI team to look into things. The purported immunity granted by State investigators came about as a result of Justice Department dereliction. And did the State investigators have the right to grant such immunity? I consider the conduct of the State investigation from the outset to be extremely suspicious and result-oriented. It was aimed at exculpating Blackwater. If the Justice Department briefers are right, and it turns out that the State investigators have effectively sabotaged any criminal investigation, that may well warrant its own inquiry.

But we come back to the inevitable conclusion. All of these problems are the product of the inaction or improper action of the Justice Department. So why should we be reassured by them?

Another point needs to be thrown into the mix. The Associated Press notes:

Blackwater Worldwide repaired and repainted its trucks immediately after a deadly September shooting in Baghdad, making it difficult to determine whether enemy gunfire provoked the attack, according to people familiar with the government’s investigation of the incident.
Damage to the vehicles in the convoy has been held up by Blackwater as proof that its security guards were defending themselves against an insurgent ambush when they fired into a busy intersection, leaving 17 Iraqi civilians dead. . .

The repairs essentially destroyed evidence that Justice Department investigators hoped to examine in a criminal case that has drawn worldwide attention. The Sept. 16 shooting has strained U.S. relations with the Iraqi government, which wants Blackwater expelled from the country. It also has become a flash point in the debate over whether contractors are immune from legal consequences for their actions in a war zone. Blackwater’s four armored vehicles were repaired or repainted within days of the shooting, and before FBI teams went to Baghdad to collect evidence, people close to the case said. The work included repairs to a damaged radiator that Blackwater says is central to its defense.

Federal prosecutors regularly build criminal cases based on perjury and obstruction when they are convinced that a serious crime occurred and there are technical obstacles in the path of making out the principal count. That’s another point to watch here, because the Justice Department’s briefing showed an amazing willingness to drop the whole thing, rather than build a case.

And this does raise a question about Blackwater’s relationship with the Government, including the Justice Department. In the end, I believe this whole story will tell us much more about the inner working of the Bush Administration and its grossly disfigured Justice Department than it tells us about Blackwater. After all, although it needs to abide by it, Blackwater is not responsible for enforcing the law. That responsibility rests now with a team that seems to be very uncomfortable whenever questions of law enforcement affect the “home team.” And ultimately Americans may judge that a far bigger and more worrisome problem than the tragedy that occurred at Nisoor Square.

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