Prosecuting Blackwater - A Brief Tour of the Law

David Luban

Blackwater security guards’ killings of Iraqi civilians highlights a long-standing problem with private security contractors in Iraq – the "coalition of the billing," as P. W. Singer has called them. The problem isn’t that the private security guards are cowboys. Some are, some aren’t. (No offense intended to real cowboys, by the way.) The real problem is a total incompatibility between their mission and counterinsurgency strategy. Counterinsurgency consists, in brief, of isolating the insurgents from the Iraqi people. It’s a hearts-and-minds strategy, and requires great respectfulness for the Iraqis and absolute restraint taking actions that might harm or anger innocent Iraqis.

In Fiasco: The American Military Adventure in Iraq, Tom Ricks describes an incident in which Marine Col. T. X. Hammes found himself staring down the barrel of a private contractor’s weapon – just four pounds of trigger-pressure away from eternity – after they forced Hammes off the road because they thought he looked suspicious.

Fundamentally, the bodyguards’ mission differed from that of the U.S. military, noted Hammes. "The contractor was hired to protect the principal. He had no stake in pacifying the country. Therefore, they often ran Iraqis off the roads, reconned by fire, and generally treated locals as expendable." Yet Iraqis saw them as acting under American authority. "You have loosed an unaccountable, deadly force into their society, and they have no recourse." (Ricks, p. 371.)

Col. Hammes’s experience on the road that February day was all too common in Baghdad in 2003 and 2004. Scholl concluded that these personal security details had done much political damage to the U.S. effort, especially where they were most active – in the capital: "If there are one hundred PSDs a day in Iraq (there are) and they each anger one hundred people in a day (they do), that is ten thousand Iraqis a day getting extremely agitated at us over the past year." (Ricks, p. 372)

Mission incompatibility would exist even if none of the PSCs were committing violent crimes. The crimes make it far, far worse. Two years ago the British security firm Aegis outraged Iraqis when Aegis employees posted a "trophy video" on the web, showing clips of them shooting up Iraqis in cars, to an Elvis Presley soundtrack. (The video, if you have the stomach for it, is here.) But this past week’s news reports suggest that Blackwater has had the highest rate of shooting incidents. A while back, Phillip Carter noticed that the damage run-amok contractors do to Iraqis is also damage to the U.S. mission.

What, if anything, can the law do? Specifically: Is there any law under which PSCs who commit crimes of violence against Iraqis can be prosecuted? That turns out to be a hard question. Here’s a preliminary cut.

Basically, there are three possibilities: prosecution under Iraqi law, under U.S. civilian law, and under U.S. military law.

Iraqi law. Even though at least one news report last week quoted Iraqi officials who said they would try the Blackwater gunmen, it’s hard to see where they get the authority to do it. Two days before the handover of sovereignty in June 2004, Paul Bremer updated CPA Order 17, which immunizes PMCs from prosecution under Iraqi law (see Section 4.3) – a last-second, prospective get-out-of-jail-free card. Even if Iraq revokes the order, it can’t do so retroactively.

Order 17 does allow contractors’ home states to waive their immunity. So far, though, I’ve seen no reports that Iraq has requested waivers or that the U.S. is considering them.

U.S. civilian law. Unless it says otherwise, there’s a presumption that federal criminal law doesn’t apply abroad. But the federal code creates a "special maritime and territorial jurisdiction" (SMTJ) that includes overseas U.S. bases and facilities. Originally, a main purpose of SMTJ was to transfer law-enforcement authority over military bases inside the U.S. from the states to the federal government, and it wasn’t clear that the SMTJ included overseas bases. In 2000, the Second and Ninth Circuits split over the issue in a pair of creepy cases involving U.S. civilians working in overseas bases who forced their underage stepdaughters to have sex with them (one of them while his wife, the victim’s mother, was on active duty in Bosnia). But the Patriot Act amended the SMTJ statute to make clear that it covers overseas bases, at least "with respect to offenses committed by or against a national of the United States." The federal criminal code includes about thirty criminal statutes that apply in the SMTJ, including assault, maiming, and murder.

So, crimes of violence committed by PMCs on U.S. bases can be prosecuted under civilian law. (The one obvious loophole is that SMTJ jurisdiction includes only crimes committed by or against U.S. nationals – foreign security contractors harming Iraqis aren’t covered.) The prosecution of David Passaro, a civilian contractor who beat an Iraqi detainee to death with a flashlight, established that the SMTJ includes even remote temporary field bases.

But most security-guard crimes won’t take place on U.S. bases. The alternative is the use of the Military Extraterritorial Jurisdiction Act (MEJA). MEJA allows the prosecution for felonies committed by civilians "employed by or accompanying the Armed Forces outside the United States," provided these would be crimes if they were committed within the SMTJ.

So that’s the basic set-up: SMTJ for civilian crimes on U.S. bases abroad, MEJA for civilian crimes off the bases. (It's an interesting question whether MEJA would cover crimes by foreign contractors as well as U.S. citizens - the language of the statutes could be argued either way.)

There was a flurry of interest in MEJA in the wake of Abu Ghraib, where two civilian contractors were implicated – and it turned out that they couldn’t be prosecuted because they had been hired by the Department of the Interior instead of DoD. Or rather, that was the urban legend. In reality, since their deeds were done at a U.S. base, I don’t see any reason why they couldn’t have been prosecuted for SMTJ crimes, other than the fact that the government didn’t want to do it. In any case, Congress plugged the supposed loophole by extending MEJA to include contractors of any federal agency "to the extent such employment relates to supporting the mission of the Department of Defense overseas."

Basically, there are two obstacles to prosecuting Blackwater employees under MEJA, one legal and one practical. The legal obstacle is that they would undoubtedly argue that they are bodyguards for State Department offiicals, and so their role is not "supporting the mission of the Department of Defense overseas." (Even more so for security contractors guarding private companies doing reconstruction in Iraq.)

This argument could go either way. A prosecutor could reply that, if the PMCs weren’t doing guard-duty for State Department officials, the Marines would have to do it. Freeing up the Marines for other jobs sure looks like it "relates to supporting the mission of the Department of Defense overseas." More basically, it would be nice to think that all the federal agencies in Iraq are on the same mission – and the "relates to supporting the mission" statutory language is pretty broad. (It would also be nice if the State Department took seriously the damage its bodyguards are doing to the DoD mission of counter-insurgency, the heart of Gen. Petraeus's strategy. This article suggests that they don't.) Prosecutors should win on this issue, but it's no slam-dunk.

The practical obstacle to prosecution is far more important. Prosecutions under civilian law need civilian prosecutors, and the U.S. Attorneys have shown no interest in doing the job. Singer explains:

Underlying the previous laws like MEJA was the assumption that civilian prosecutors back in the US would be able to make determinations of what is proper and improper behavior in conflicts, go gather evidence, carry out depositions in the middle of warzones, and then be willing and able to prosecute them to juries back home. The reality is that no US Attorney likes to waste limited budgets on such messy, complex cases 9,000 miles outside their district, even if they were fortunate enough to have the evidence at hand. The only time MEJA has been successfully applied was against the wife of a soldier, who stabbed him during a domestic dispute at a US base in Turkey. Not one contractor of the entire military industry in Iraq has been charged with any crime over the last 3 and a half years, let alone prosecuted or punished. Given the raw numbers of contractors, let alone the incidents we know about, it boggles the mind.

(Shortly after he wrote this, a civilian contractor in Iraq was finally prosecuted under MEJA – for child porn.)

Bottom line: don’t hold your breath.

Even more so with the one obvious statute that could be used when contractors gun down civilians: the federal war crimes statute, which applies to all U.S. nationals, not just the military.

The fundamental fact of life is that it has never been used. Calling something a war crime is political dynamite. So, if you’re going to prosecute it at all, you will prosecute it as murder, manslaughter, assault – anything but a war crime. Passaro plainly could have been prosecuted for war crimes, but the charges against him were for assault and homicide – and, because the investigation was botched, he was convicted only of two misdemeanors and one felony assault charge; that, remember, is for beating a detainee to death.

Bottom line on war crimes prosecutions, in practice: fuggedaboudit.

U.S. military law. U.S. armed forces are governed by the Uniform Code of Military Justice, the UCMJ. UCMJ also covers, "in time of war, [civilian] persons serving with or accompanying armed forces in the field" – a practice that goes back to the 1775 Articles of War at the birth of the republic. But a 1970 Vietnam-war decision by a military court (U.S. v. Averette, 41 C.M.R. 363 (1970)) held that "time of war" meant only declared war, and of course the U.S. hasn’t fought a declared war since 1945.

That changed last January when Republican Senator Lindsay Graham inserted an almost-invisible legal change into a massive defense appropriations bill. Graham’s change applies the UCMJ to civilians during "contingency operations" like the Iraq war as well as to declared wars. It means that civilians can now be court-martialed for violating military law. That could be a big plus for accountability, because it doesn’t need stateside civilian prosecutors.

Here are the legal obstacles. First, the law applies only if the contractors’ presence is "not merely incidental to, but directly connected with and dependent upon, the activities of the armed forces and their personnel." (U.S. v. Rubenstein, 22 C.M.R. 313, 317 (1957)) As in MEJA prosecution, the defense could argue that the bodyguards’ mission is incidental to the military’s mission. The contractors' job is simply protecting diplomats and civilian bureaucrats.

In response, the prosecution could make the "substitutability argument" – the private bodyguards are freeing up troops for other missions – or point to the fact that PMCs in trouble can phone in for military support. That makes them "dependent upon the activities of the armed forces."

Second, the law applies only "in the field," and that means "in an area of actual fighting...at or near the ‘battlefront’" where "actual hostilities are underway" (Reid v. Covert, 354 U.S. 1, 35 (1957)). Who knows where the battlefront is in the insurgency? Presumably, if insurgents actually attack a PMC-protected convoy, that makes it an "area of actual fighting." But suppose the Iraqi allegations against Blackwater are completely accurate, and the guards starting shooting at civilians without provocation? Is it an area of actual fighting if the PMCs are the only ones doing the fighting? If not, it looks like the UCMJ doesn’t apply. (Of course, the Blackwater defense was that its guards were under attack. They’re not likely to abandon that defense to argue that the UCMJ doesn’t apply because the guards were the only ones shooting. A tactical dilemma for the defense counsel, perhaps....)

Finally, there is a line of Warren Court cases, starting with Toth v. Quarles and Reid v. Covert, holding that U.S. civilians can’t be court-martialed because courts-martial don’t provide full Fifth and Sixth Amendment rights. Toth had to do with an ex-military defendant, and Reid with military wives who faced the death penalty for killing their husbands. (Other cases: Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960) (spouse and noncapital crime); Grisham v. Hagan, 361 U.S. 278 (1960) (civilian employee and capital crime); McElroy v. Guagliardo, 361 U.S. 281 (1960) (civilian employee and noncapital crime).) These cases all flowed from the Court’s skepticism about military justice. (There was a saying at the time that military justice is to justice as military music is to music.) Almost certainly, any attempt to court-martial PMCs would face a constitutional challenge.

But in the years since these cases, procedures in the military justice system have converged with those in the civilian system, so the 5th and 6th Amendment objections to court-martial aren't nearly as strong as they were in the 1950s. The creation of the Court of Appeals for the Armed Forces, and the availability of Supreme Court review, are additional major changes since the Warren Court cases.

And there are at least two other big differences as well: first, all the Warren Court precedents were peacetime cases; and, even more importantly, none of them involved defendants taking combat roles. There's an obvious strong argument that contractors who tote guns like soldiers should face the same justice system as soldiers. And – in case you hadn’t noticed – it isn’t the Warren Court any longer. It seems pretty likely that Reid and its successor cases would be distinguished or overruled.

So far, though, news reports haven’t suggested that the Blackwater shooters might be court-martialed. Maybe that’s because it’s too soon, and the investigation is still going on. But it could also be that military prosecutors are just as unenthusiastic about court-martialing civilian contractors as civilian prosecutors are about trying them under civilian law.

Bottom line: Stay tuned.

Military tribunals? I have an e-mail from military law expert (and sometimes-balkinizer) Dave Glazier, who floats two other possibilities, which he admittedly calls "out of the box":

(1) Prosecution by general court-martial under the authority of UCMJ Article 18 (10 U.S.C. 818) which reads in part "General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war." I am unaware of any actual use of this provision since the language was first adopted in 1913 as a piecemeal amendment to the Articles of War, but I think it remains a potentially viable exercise of the authority constitutionally committed to Congress to define and punish offenses against the law of nations. The Supreme Court specifically upheld the idea that Congress could rely upon the "common law of war" rather than specifically codifying offenses in Ex parte Quirin, 317 U.S. 1 at 30.

(2) Prosecution by military commission in Iraq applying the law of war. Although the President decided to limit the Guantanamo military commissions to non-citizens and this was subsequently codified in the Military Commissions Act of 2006 (MCA), the military commission was specifically invented in 1847 to try U.S. personnel (soldiers and civilians) outside of other sources of U.S. criminal jurisdiction. While commissions have most frequently sat under color of martial law or occupation law authority (and those particular uses are explicitly preserved under the MCA), recall the Supreme Court in Johnson v. Eisentrager upheld the use of a U.S. military commission in China which was neither occupied nor under martial law to try law of war violations, and the Supreme Court did uphold trial of a U.S. citizen for law of war violations in Quirin, although obviously it could prove significant that they were part of the enemy in that case. Of course restoring the historic (i.e. pre 1942) commonality between court-martial and military commission procedure would almost certainly be necessary for such a commission to have any hope of surviving the inevitable habeas challenge.

Corporate criminal liability. And hey, while we’re at it, let’s not forget that corporations are criminally liable for crimes committed by their employees in the actual or apparent scope of their duties. Prosecutors usually charge corporations (rather than employees) only when they think the organizational culture is the culprit and the individual perp is either merely a symptom of a corrupt corporate culture, or else a scapegoat. A recent news article suggests that Blackwater fits that description.

But Blackwater is politically connected. So corporate indictment doesn’t seem likely to happen.

Civil suits? That’s a topic for a different post. But, in brief, it doesn’t look too likely because of the government contractor defense.
Posted 1:07 PM by David Luban [link]