Earlier this month, the Department of Justice announced to great fanfare that it had indicted five guards employed by the private security firm Blackwater Worldwide for their role in a Baghdad shooting that left 17 Iraqis dead last year. A sixth guard had pled guilty to manslaughter and weapons violations.
But lawyers for the five men indicted in the first case of its kind appear to have a strong defense, regardless of the circumstances of the shooting: private security guards contracting with the Department of State may not be subject to American law. And despite a new Status of Forces Agreement negotiated between the United States and the Iraqi government that would seem to make future contractors subject to Iraqi law, guards like the Blackwater men hired by the State Department may glide through a large loophole in that new agreement as well.
The reasons are a bit complicated.
Normally, United States criminal law does not apply beyond US borders. But under the Military Extraterritorial Jurisdiction Act, or MEJA, the United States can prosecute any crime that would be a felony in the US if it was committed by a member of the Armed Forces, or someone “employed by or accompanying the Armed Forces outside the United States.” In 2004, responding to the revelations that private contractors hired by the CIA had gruesomely abused prisoners at the Abu Ghraib prison in Iraq, Congress amended the law to cover contractors from other federal agencies, but “only to the extent such employment relates to supporting the mission of the Department of Defense.”
But were the Blackwater guards, hired to protect State Department employees, “supporting the mission of the Department of Defense”?
“We think that supporting the mission of the U.S. military does not include the work that our clients were doing for the Department of State,” said David Schertler, a lawyer defending one of the Blackwater guards. “They were employed as security by the state department to protect Department of State officials. The state department has a different mission.”
The Department of Justice disagrees. Its announcement of the indictmenton December 8 carefully stated that the Blackwater guards were hired “to provide personal security services related to supporting the mission of the Department of Defense in the Republic of Iraq, within the meaning of MEJA.”
But some military law experts are not convinced.
“I don’t think that the Blackwater people who are involved in the Nasur square incident fall within MEJA,” said Eugene Fidell, President of the National Institute of Military Justice and lecturer at Yale Law School. “I think the indictment has to be dismissed.”
Because this is the first indictment of a state department contractor under the 2004 law, it’s what’s known as a matter of first impression — in other words, it hasn’t yet been decided by the courts. But neither the law itself nor the legislative history offers much guidance.
Glenn Schmitt, former Chief Counsel of the Subcommittee on Crime of the House Judiciary Committee, wrote about the amendments to MEJA in Army Lawyerin 2005. “Congress failed to define the phrase ‘supporting the mission of the Department of Defense’ supplied in the bill, leaving unanswered the question of just how broadly the terms ‘supporting’ and ‘mission’ are to be interpreted,” he wrote.
Because the 2004 provision was proposed as an amendment to a defense authorization bill rather than on its own, there was little discussion over its meaning in the Senate and no conference report explaining the new language, Schmitt adds.
According to the government, the five Blackwater guards indicted were part of a Tactical Response Team called Raven 23, whose role was to provide back-up support for another Blackwater team. They were responding to the explosion of an improvised explosive device near the other Blackwater guards, who were there to guard a State Department employee. The indictment charges that the five guards opened fire, allegedly unprovoked, on Iraqi civilians, killing 14 and wounding 20. (News reports have indicated that there were 17 deaths, and the Department of Justice has said its investigation is ongoing.)
Responding in part to this incident, which enraged local Iraqis, the Iraqi government has insisted that in the future, American contractors must be subject to prosecution under Iraqi law.
They haven’t been since June 2004, when Paul Bremer, then the the United States administrator for Iraq, issued Coalition Provisional Authority (CPA) Order 17, which states that “Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contract….” CPA Order 17 also made contractors “immune from Iraqi legal process,” and from any form of arrest or detention. That immunity remains in effect, writes Schmitt, until it’s revoked or superseded by the Iraqi Government.
The Iraqi government has now purported to do just that. But a close reading of the new Status of Forces Agreement, or SOFA, suggests that State Department contractors such as the Blackwater guards indicted for the shootings still won’t be subject to any law at all.
The SOFA was drafted to provide a legal basis to continue U.S. military operations in Iraq beyond December 31, 2008, when the United Nations mandate expires. And mostly, it’s garnered attention for its pledge to withdraw US forcesfrom Iraq by the end of 2011.
But another important part of the agreement concerns the thousands of private contractors working for the US government in Iraq.
The new SOFA, ratified by the Iraqi parliamenton November 27, 2008, grants Iraq “the primary right to exercise jurisdiction over United States contractors and United States contractor employees.”
That would seem to answer the question. Yet the definitions section of the agreement adds an important wrinkle:
“United States contractors” and “United States contractor employees” mean non-Iraqi persons or legal entities, and their employees, who are citizens of the United States or a third country and who are in Iraq to supply goods, services, and security in Iraq to or on behalf of the United States Forces under a contract or subcontract with or for the United States Forces.
In other words, the new SOFA seems to have created the same legal loophole as the 2004 amendment to the Military Extraterritorial Jurisdiction Act: it only covers contractors working “on behalf of” or “under contract with” the United States military.
“It’s a problem,” said Fidell. “We’ve got something like 190,000 contractors in Iraq, and some of them are not Department of Defense contractors. The one thing you want to know is, whose rules apply?”
It may be that no rules apply at all.
When the Justice Department in early December announced the indictment of the five Blackwater guards, Patrick Rowan, Assistant Attorney General for National Security said: “Today’s indictment and guilty plea demonstrate that those who engage in unprovoked and illegal attacks on civilians, whether during times of conflict or times of peace, will be held accountable.”