No Comment — November 14, 2007, 7:41 am

Getting Closer to the Truth about the Blackwater Incident

On September 16, a Blackwater USA security unit returning to base after having dropped off the person it was guarding opened fire at Nisour Square, near Baghdad’s Green Zone. When the dust cleared it appears that 17 Iraqis were dead. The Iraqi Government reacted with outrage, while Blackwater and its patron, the State Department, went into overdrive trying to persuade an audience back in America that the incident was justified. To those who were familiar with the situation surrounding security contractors in Baghdad, few of the excuses offered up by Blackwater and the State Department rang true. A team of FBI investigators was dispatched to study the incident and form some recommendations as to whether the matter provides grounds for a criminal prosecution.

Today the New York Times reports that the FBI investigation is nearing its conclusion and it has concluded that serious crimes were committed by Blackwater personnel. David Johnston and John Broder report:

Federal agents investigating the Sept. 16 episode in which Blackwater security personnel shot and killed 17 Iraqi civilians have found that at least 14 of the shootings were unjustified and violated deadly-force rules in effect for security contractors in Iraq, according to civilian and military officials briefed on the case. The F.B.I. investigation into the shootings in Baghdad is still under way, but the findings, which indicate that the company’s employees recklessly used lethal force, are already under review by the Justice Department.

Prosecutors have yet to decide whether to seek indictments, and some officials have expressed pessimism that adequate criminal laws exist to enable them to charge any Blackwater employee with criminal wrongdoing. Spokesmen for the Justice Department and the F.B.I. declined to discuss the matter.

So the baton now passes from the FBI to main Justice to decide how to deal with the matter.

This is an appropriate point to consider two questions: first, how has Justice dealt with accusations against contractors in the past? And second, what legal basis exists to support prosecutions coming out of the Nisour Square incident?

One of the most astonishing facts surrounding the whole contractor abuse issue is the consistent could-care-less attitude of the Justice Department. Dozens of incidents which are comparable to the Nisour Square case have been referred to Justice; no action follows on them. When challenged about this, Justice Department officials throw up the standard smoke screen. “We’re looking into it and cannot comment on a pending investigation,” they say. Alternatively, they refer to the difficulty of investigating crimes in a war zone and point to the lack of resources available to them to do so. These answers sound vaguely plausible, but they’re dishonest. Prosecutorial discretion is being used to cloak conduct which ranges from negligent to criminally irresponsible.

In fact, political functionaries at the Justice Department have, according to my sources, made a determination that they do not want to move on contractor cases. They deal with the matter using their standard tools: resource allocation and placing difficult matters into the hands of politically trusted personnel. By allocating no resources, they can assure that nothing happens. So the “absence of resources” referred to reflects a policy decision by the Bush Justice department in the first instance.

It’s noteworthy that there is a small army of DOJ personnel and contractors in Iraq. They are there to perform political functions—to back-up and run the war crimes trials targeting leaders of the Saddam regime, for instance, and to assist in the reconstruction of the Iraqi administration of justice. Although there is an inspector general looking into fiscal issues of contract abuse, there is no parallel capacity to examine and deal with violent crimes. This reflects a conscious decision, not an error or oversight.

A clear demonstration of these facts comes when we look at the one very high-profile, well-documented case involving violent crimes by contractors in Iraq which has been in the limelight: mistreatment of prisoners by contractors at Abu Ghraib. The Department of the Army’s internal investigation concluded that some of the most severe incidents of criminal abuse involved contractors. Between seven and one dozen serious cases involving contractors were identified and turned over to the Army’s CID for investigation.

These investigations produced recommendations to prosecute in at least seven cases. A full portfolio of materials was prepared which would provide the basis for prosecution in a court-martial—replete with witness statements, photographs and forensic evidence. This was turned over to the Justice Department.

Main Justice in turn handed the matter over to Paul J. McNulty, then the U.S. Attorney in the Eastern District of Virginia. That was three years ago. To all outside observation, next to nothing has transpired. There has been a fleeting report or two about a grand jury looking into one of the cases. But while the Eastern District is known as one of the fastest, most aggressive U.S. Attorney’s offices in the country, the treatment of these cases is, at best, glacial.

The Eastern District of Virginia also has a well-earned reputation as the most political U.S. attorney’s office in the country. It has been the Bush Administration’s district of choice for politically sensitive cases, largely because the Bush Justice Department believes it can count absolutely on the political fidelity of the shop. Paul J. McNulty, of course, left Alexandria to become the Deputy Attorney General under Gonzales, until he was brought down by the U.S. Attorney’s scandal. He was replaced by Chuck Rosenberg, another figure with very close ties to the upper echelons of the Bush Justice Department. Rosenberg, for instance, served as chief of staff to Gonzales, at the peak of the U.S. Attorney scandal.

Sources inside of the Eastern District tell me that the files relating to the contractors in Iraq were the subject of intense concern and oversight by senior figures both within the shop and at main Justice. The pressure brought to bear was clearly not to press the cases forward, but just the opposite. They would be “in process,” but they were not going anywhere. If pressure got too intense, apparently, one or two of the cases would move to the grand jury. But in any event, the entire matter was, it was hoped, to get stale and forgotten. (I’ll have a lot more to say about shady dealings inside the Eastern District in an upcoming feature piece.)

The Abu Ghraib contractor cases demonstrate how the Bush Justice Department handles cases which are in the headlines and subject to intense Congressional scrutiny: use the Eastern District of Virginia as a silent graveyard. By contrast, when the heat is not on, nothing at all happens.

Considering the hyper-aggressive, legally creative way in which the Eastern District moved in a number of early counterterrorism cases (such as the John Walker Lindh “American Taliban” case, the trial of Zacarias Moussaoui, the trial of a Saudi-American student Ahmed Omar Abu Ali,) the treatment of the contractor cases makes for a striking study in contrasts. In one set: accelerator to the floor with the cases ceaselessly hyped to the media. In the other: no action and complete media “radio silence.” Both reflect political direction from the top and a commitment to the Bush Administration’s political agenda.

That brings us to the question of the tools available. Looking at the creativity and dexterity shown by Eastern District prosecutors in the past, it’s hard to understand how they would have a problem acting in these cases. The Justice Department has a number of tools to choose from; true they have rarely been used—which reflects the Justice Department policy not to use them or to hold contractors to account. Here are a handful of major options for the Nisour Square cases:

  • Whose immunity? We should start by remembering that these cases relate to crimes committed in Iraq and would ordinarily be prosecuted by the Iraqi authorities. There is no question as to the substantive applicability of Iraqi criminal law. The limitation is procedural, namely Order No. 17 issued by L. Paul Bremer on his last day in Baghdad, which gave immunity to contractors. But we should remember that this grant of immunity was to the United States. The United States is free, if it wishes, to waive the immunity and allow contractors who have committed serious crimes to be prosecuted in Iraqi courts. And if the U.S. concludes that serious crimes occurred and it cannot prosecute them for any technical reason, this is precisely what the U.S. must do.

  • Military justice. Similarly, if the Justice Department concludes that it cannot bring a prosecution for some technical shortcoming, it needs to consider passing the baton to the Department of Defense to court-martial those it believes committed serious crimes. Article 2 of the Uniform Code of Military Justice was amended at the end of 2006 to permit the court-martialing of contractors. Military justice offers procedures attuned to trying crimes committed on the battlefield. For many reasons it seems a fairer and superior approach to trying cases coming out of the Nisour Square incident to trials in a U.S. federal court.

  • Military Extraterritorial Jurisdiction Act (“MEJA”). Congress amended MEJA after the Abu Ghraib incident to significantly broaden its scope and to make it applicable to contractors whether they were brought into the theater by the Department of Defense or any other agency. It is true that the Blackwater employees may attempt arguments that they are not covered by MEJA because of some language technicalities, which recent legislation is about to repair. However, the better reading of the statute is that they are covered, and that MEJA provides a basis to charge Department of State contractors in Iraq, including Blackwater.

  • War Crimes Act. While it has never been used, killings of the sort which occurred at Nisour Square, if unprivileged, could also be charged under the War Crimes Act.

There’s no doubt that the Justice Department has the tools to act on the Nisour Square cases. There is also no doubt that those tools could do with a bit of sharpening and that this would have long occurred had the Department actually taken an interest in robust law enforcement that is its duty. Through its inaction, the Justice Department has materially contributed to a dangerous and self-defeating culture of impunity in Iraq. The real question now is simple: does Justice have the political will to overcome an odious legacy and do what the law requires of it?

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