Beyond Reach
To federal prosecutors, the 2007 shootings of more than 30 Iraqis by U.S.-hired private contractors represent nothing more than unprovoked and illegal attacks on unarmed civilians. They have promised to hold the contractors criminally accountable in a U.S. court.
To lawyers for the defendants, the charges boil down to a lame attempt in the waning days of the Bush administration to curry favor with an Iraqi government that had grown increasingly critical of the conduct of U.S. forces.
The Sept. 16, 2007, episode—which left 14 people dead and 20 wounded—immediately became one of the most visible objects of Iraqi discontent. But the long-arm statute that the U.S. government says gives its courts jurisdiction may not reach all the way to Baghdad.
A trial is scheduled for early 2010 for five of the defendants who, at the time of the shootings, worked for Moyock, N.C.-based Blackwater Worldwide, a company that provides armed protection to U.S. officials in the war-wracked country.
While the company is not charged in the case, the defendants have been charged as individuals, according to indictments unsealed Dec. 8. A sixth defendant has pleaded guilty and is expected to testify against the others at trial in a federal district court in Washington, D.C.
DEFENDANTS CLAIM IMPUNITY
Before they can present jurors with evidence about the shootings on a busy Baghdad street, prosecutors face no small task in convincing the courts that they belong there. The defendants argue that U.S. courts can’t touch them because the law under which they have been criminally charged states that the courts can only exercise jurisdiction over civilian contractors working for the Defense Department.
The defendants say they subcontracted through Blackwater directly with the State Department.
“These people absolutely were not there in support of the mission of the Department of Defense,” says Alexandria, Va., defense lawyer William F. Coffield, who represents Blackwater defendant Evan Shawn Liberty of Rochester, N.H. “They were there in support of the State Department. They are completely different things.”
U.S. District Judge Ricardo M. Urbina was scheduled to hear the defendants’ motion to dismiss for lack of jurisdiction in February. Unless the defendants are acquitted or the case is abandoned by prosecutors, the question of jurisdiction likely will become an issue for the U.S. Supreme Court, according to legal experts.
Substantive charges against the five defendants include 14 counts each of manslaughter, 20 counts of attempted manslaughter and one of using a firearm to commit a violent crime—a heavy-duty statute aimed at drug dealers that could result in a 30-year prison sentence.
The firearms charge irks defense counsel, especially since the defendants were authorized to carry unmodified weapons for defense.
“These are people who have U.S. government weapons,” says Coffield. “They haven’t been altered or made illegal in any way. We think that’s a real stretch on the part of the government.”
Besides Liberty, others indicted were Paul Alvin Slough of Keller, Texas; Dustin Laurent Heard of Maryville, Tenn.; Nicholas Abram Slatten of Sparta, Tenn.; and Donald Wayne Ball of West Valley City, Utah. A sixth defendant, Californian Jeremy P. Ridgeway, pleaded guilty to reduced charges that included a single count each of manslaughter and attempted manslaughter, presumably in exchange for his testimony against the others.
The defendants, who described themselves as self-employed subcontractors, say they were hired as part of a personal security contract between Blackwater and the State Department—and thus outside U.S. court jurisdiction.
“When you contract out an inherently government function, you’re going to run into a whole set of conflicts,” says Troy, Mich.-based civil plaintiffs lawyer Shereef Akeel, who represents Iraqis in prison cases as well as survivors and family members in what has become known as the Nisur Square incident. “You basically have two masters with dueling interests.”
CAR BOMB SETS STAGE
Relying in part on a sworn statement by ridgeway, prosecutors gave this account of the shootings: Using the radio call sign Raven 23, the defendants on Sept. 16 had been assigned with 18 other Blackwater guards to a convoy of four heavily armored trucks, which were backing up other Blackwater teams operating in Baghdad. At around noon, a car bomb exploded near another Blackwater unit, about a mile from Nisur Square and well outside the heavily fortified Green Zone where most Americans live and work.
According to prosecutors, the convoy—which hadn’t been authorized to leave the Green Zone—ignored orders from the U.S. Embassy to return, and instead rushed to the square and blocked off the streets leading to a traffic circle surrounding the square.
Within seconds, one of the defendants opened fire on a small, white Kia sedan that had been approaching the traffic circle from the south. Seconds later, other members of the convoy opened fire on the sedan, then proceeded to fire on civilians in the area with machine guns and grenade launchers. The driver of the Kia was later identified as a second-year medical student. Also killed was his mother, an Iraqi physician.
Though the defendants are expected to argue that they fired in self-defense, prosecutors say none of those killed or wounded had presented a threat, and none of the victims was armed.
But the defendants say the prosecutors coming after them also are unarmed.
The government has lumped the charges against the contractors under the Military Extraterritorial Jurisdiction Act of 2000, which authorizes U.S. court jurisdiction for crimes committed in Iraq. But prosecutors’ options were thin. For one, the Supreme Court has rejected courts-martial or other military trials for civilians in the absence of declared war.
Had the Blackwater defendants contracted with the Defense Department, jurisdiction probably would not be in question because the act targets those “employed by or accompanying the armed forces outside the United States.” But the law took no account of contractors hired by the State Department or other agencies.
Congress tried to clamp down further in 2004 with an amendment to the act also leveling jurisdiction on contractors whose engagement “relates to supporting the mission of the Department of Defense overseas,” but still did not include any other agencies. Subsequent attempts to include the State Department and the U.S. Agency for International Development failed.
Prosecutors acknowledge that in other countries the departments of defense and state typically operate separately. But in Iraq, the government says, the two departments worked closely together to defeat hostile forces and establish a stable democracy. The military mission would be useless without State’s nation-building efforts, and establishing a new democracy won’t work with opposing forces in the way.
“Although these responsibilities are divided by virtue of the particular expertise and traditional responsibilities of each department, these responsibilities are closely coordinated to achieve seamless mutual support in furtherance of the common objective,” prosecutors argue in court documents.
Some legal experts aren’t buying that.
“The State Department is not DOD,” says associate law professor Steven L. Schooner, who teaches government contracts at George Washington University. “It’s a pretty big leap. If I hire you for State under this, at what point are you working on a Defense Department mission?”
PRECEDENT COULD BE SET
Though the current contractor dispute remains confined to Iraq, critics complain that a jurisdictional grant in the Blackwater case could extend to anywhere in the world where troops operate near private workers, who may fall under different chains of command.
Dumping the case and appearing soft on abuses by a few contractors may not be so palatable to the Obama administration. But if the administration wants to tinker with the case still more, it does have one other option: the 1996 War Crimes Act.
The act applies to occurrences inside and outside the United States and includes civilians. For definitions of crimes, it cites Common Article 3 of the Geneva Conventions, which includes murder and some unintentional killings.
At least one practitioner says charging under the War Crimes Act may impress jurors more with the gravity of the case rather than what amounts to street crimes the defendants now face on the substantive side.
“To me, the better choice by the government would have been to bring those charges under the War Crimes Act,” says Tara M. Lee, a Reston, Va., lawyer who represents contractors. “I think it makes a lot more sense to talk to the jury in terms of war crimes in trying to explain what happened in Nisur Square.”
