Four Years After Blackwater Massacre in Iraq Gaps in Contractor Liability Remain

© Scott Olson/Getty Images

This week marks the four year anniversary of the Nisour Square massacre, where on September 16, 2007, 17 Iraqi civilians were allegedly shot and killed and dozens more injured by Blackwater (now known as Xe) security contractors employed by the Department of State.

Five eyewitnesses insisted that the company guards fired without provocation, forcing civilians and Iraqi Police to run for cover.

The incident gained worldwide attention and highlighted the consequences of the U.S. government’s increased privatization of military and security functions. Today it is a reminder that after four years, Congress has still failed to clarify and strengthen jurisdiction of U.S. courts over its security contractors operating overseas by passing the Civilian Extraterritorial Jurisdiction Act.

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Obama's Alleged Link to Secret Prisons and Extraordinary Rendition

Following hard on the heels of the revelation that the Obama administration had held Ahmed Abdulkadir Warsame in secret detention on a US naval vessel patrolling off the coast of Somalia for over two months, comes a startling new claim from The Nation magazine that the Obama administration is back in the extraordinary rendition business.

Writing in the latest edition of The Nation, journalist Jeremy Scahill alleges that since early 2009 the United States has maintained a secret prison located on a compound within the perimeter of Mogadishu Airport and that in July 2009 the United States was involved in the extraordinary rendition of Ahmed Abdullahi Hassan from Kenya to Somalia.

Without further independent investigation it is difficult to make a definitive judgment about Scahill’s claims but it is worth noting that he is the author of the well-regarded study “Blackwater: The Rise of the World’s Most Powerful Mercenary Army” and has extensive contacts in the intelligence, special forces, and private military contractor communities.

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Holding Private Security Contractors Accountable for Human Rights Abuses

By Rebecca DeWinter-Schmitt, Amnesty’s Business & Human Rights Group

Justin Cannon and Christopher Drotleff were working for private security company Blackwater (now known as Xe) when they were accused of killing two civilians and injuring two others after opening fire on a vehicle in Afghanistan in May 2009. Romal Mohammad Naiem, who was a passenger in the car, which had approached the scene of a traffic accident involving two Xe vehicles and was leaving when it was repeatedly shot upon, was killed.

© Scott Olson/Getty Images

On Monday, Cannon was given a 30-month sentence for involuntary manslaughter in the shooting death of Naiem. Drotleff, his partner, received a 37-month sentence earlier this month.

According to the Virginian-Pilot, they are the first Xe contractors to be punished for killing a civilian in a conflict zone. (Four more Xe contractors still face manslaughter charges for the Nisour Square shootings that resulted in the death of 17 civilians.)

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Code of Conduct for Private Security Providers Endorsed in Geneva

On Tuesday, November 9, 58 private security companies signed an International Code of Conduct for Private Security Providers. The signatories included major U.S. based firms, such as Triple Canopy, DynCorp, EODT, and even Xe (formerly known as Blackwater). The Code seeks to address the human rights impact of security providers and among its standards are rules for the use of force, prohibitions on child and forced labor, human trafficking, torture and other cruel, inhuman and degrading treatment, and commitments regarding the vetting and training of personnel and the reporting of incidents of the use of force.

The participants reflect a multi-stakeholder group representing governments, companies and their trade associations, civil society groups, and experts and academics, many of whom were involved in the 14 month process to develop the Code facilitated by the Geneva Centre for the Democratic Control of Armed Forces. This Code initiative is distinguishable from other voluntary efforts to date to create standards for companies in that its goal is to have the clients of private security providers – both governments and non-state clients like humanitarian aid organizations and other companies – include requirements to adhere to the Code in their contract vehicles.

The British government has already committed to making this a requirement for its contracted security, and the U.S. government is currently contemplating doing the same according to U.S. Department of State legal advisor Harold Koh. This would lend these voluntary standards some real teeth, as the human rights commitments made by the signatory firms could be upheld in courts of law. Furthermore, it represents an important advancement in the recognition by a global industry of the obligations of firms to uphold human rights wherever they operate.

However, the credibility of this initiative will hinge on the nature of the external independent mechanisms for effective governance and oversight. OMB Watch and some non-governmental organizations have warned of the shortcomings of any mechanism of reporting the incidents of the use of force that relies on self-reporting. Humans rights groups, such as Human Rights Advocates, Right Respect, and other human rights groups have endorsed the Code, but warn that the Code not be viewed as a substitute for the development of binding legal instruments to ensure that private security firms are held accountable for their actions.

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Failed accountability, WikiLeaks show true cost of war

The release by WikiLeaks late last week of 391,832 secret documents on the Iraq War has been said to be “…the most comprehensive and detailed account of any war ever to have entered the public record.” The revelations emerging from these documents showcase the culture of impunity that has plagued this war effort, including the U.S. government’s failure to adequately address rights violations linked to the corporations and contractors used to fight our wars.

As an August 22, 2006 report released by WikiLeaks stated

AFTER THE IED STRIKE A WITNESS REPORTS THE BLACKWATER EMPLOYEES FIRED INDISCRIMINATELY AT THE SCENE.

More than one year later, on September 16, 2007, Blackwater (now renamed Xe) guards, still benefiting from huge government contracts, shot and killed 17 Iraqi civilians in Nisour Square, Baghdad. This is just one example of many that can be found in the leaked documents.

It is clear that the record of unjustified killings and violence by PSCs is far beyond what had previously been released to the public. As it stands, none of these incidents has resulted in prosecution, and even those cases that have moved forward have resulted in dismissal or failure to indict.  Recently, a case against Andrew J. Moonen, a former Blackwater guard who was accused of killing a guard assigned to an Iraqi VP while wandering drunk in the Green Zone, was dropped by the Justice Department, citing difficulties in obtaining evidence in war zones, and the granting of immunities to the defendant by American officials at the scene.

Even the most public of cases, including that against Blackwater guards for the shooting of 17 Iraqi civilians in Nisour Square, have resulted in dismissals in US courts.  This culture of impunity extends across PSC activities.  On September 11th, 2009, the U.S. Court of Appeals for the D.C. Circuit in a 2 to 1 ruling dismissed a lawsuit brought against CACI International that alleged CACI personnel participated in torture and abuse at the Abu Ghraib prison.

By creating complex legal hurdles, issuing on the scene immunities, and failing to ensure an environment of transparency, oversight and accountability, we are shielding the true costs of our wars, not only financially but in human terms as well.  The release of these documents showcases just how terrible that cost is.

Let’s continue to call for accountability in conflict zones. Tell President Obama and Congress to respect human rights and counter terror with justice.

A real chance for accountability for private security contractors

At the end of December, the human rights movement had some disappointing news. Federal Judge Ricardo Urbina dismissed the charges against the five Xe (Blackwater) guards accused in the shooting death of at least 14 innocent Iraqi civilians in Nisour Square in September 2007.

While his decision indicates the need to examine more closely the conduct of the Justice Department’s prosecutors as well as the State Department’s practice of immunizing contractors’ statements given in the course of investigations, there is now reason for hope. On Tuesday, Rep. David Price and Sen. Patrick Leahy introduced companion bills under the short title of the Contractor Extraterritorial Jurisdiction Act (CEJA) of 2010 in the House (HR 4567) and Senate (S2979). The legislation closes gaps in U.S. law to ensure that contractors can be prosecuted for crimes committed overseas.

One of the single biggest hurdles to holding military and security contractors accountable for criminal acts committed overseas has been the duality of systems in place for Defense Department (DOD) contractors versus those working for other government agencies. DOD contractors implicated in crimes are subject, in theory, to the Uniform Code of Military Justice, the military’s judicial system, and the jurisdiction of federal courts by way of the Military Extraterritorial Jurisdiction Act (MEJA). But what about Blackwater, which was fulfilling the State Department’s Worldwide Personal Protective Services (WPPS) contract at the time of the Nisour Square shootings? Well, many feared that the Justice Department wouldn’t or wouldn’t be able to pull off a case against the shooters because of unsettled evidentiary and jurisdictional issues.

We – the human rights community, Congress, the President, the media, and othershave known about this inconsistent patchwork of laws for some time now. In fact, in 2007 Rep. Price and then-Senator Barrack Obama joined forces to try to amend MEJA to clarify that there would be no impunity for government contractors who commit crimes. While the House version of the bill passed with an overwhelming bipartisan vote of 389 to 30, it fizzled on the Senate side.

Two years on, we don’t need any more evidence to indicate the importance of acting decisively to make CEJA law. The DOS is about to release the Request for Proposal for WPPS III. In the upcoming weeks, we’ll be asking you to call on your members of Congress in the House and Senate to endorse CEJA and end impunity for rights violators. Let’s make sure that the framework is in place to hold military and security contractors accountable for human rights violations before we send out the next round of armed guards in the name of the U.S. government.

Blackwater accused of trying to buy its way out of accountability

On November 11th, 2009, the New York Times reported that in December 2007, top executives at Blackwater (currently known as Xe) authorized cash payments up to $1 million to Iraqi officials with the intent to buy silence and support from the Iraqi government over the Nisour Square shootings on September 16th, 2007, in which 17 Iraqis were shot and killed by Blackwater guards. The Times received this information from four anonymous former Blackwater executives. Two participated in talks about the payments and the other two had heard about the payments from other Blackwater officials. According to the executives, the payoffs were approved by then-company president, Gary Jackson. The money was sent to a top manager in Iraq and one executive stated that the intended recipients were officials in the Iraqi Interior Ministry in charge of operating licenses.

After the Nisour Square shootings, Blackwater came under plenty of heat from media and the Iraqi government, which wanted the contractor out of Iraq. For Blackwater, getting booted from Iraq meant potentially losing lucrative Department of State (DOS) contracts.

The four executives do not know if the bribes ever reached their intended recipients and it is unclear if a federal grand jury in North Carolina is investigating the matter. If it is found that Blackwater bribed Iraqi officials, those responsible could be prosecuted for obstruction of justice and violation of the Federal Corrupt Practices Act (FCPA), which prohibits bribes to foreign officials.

Blackwater seems to be synonymous with “bad news” but perhaps the worst news is that the company – despite a growing list of human rights violations and various misdeeds – is not being held to account but rather is still winning new contracts with the U.S. Government. Perhaps what makes Blackwater and other private military and security companies (PMSCs) so bold and reckless is the culture of impunity in which they operate. The U.S. Government did not create mechanisms of accountability and regulation to keep up with the booming industry. But this is one area of corporate accountability with a clear record – the FCPA is a proven tool leaving no excuse for prosecutors to turn the other cheek. All that needs to be done is for the relevant U.S. attorneys to investigate.

If You Can't Quit Them, Then Regulate Military Contractors

By Lillian Tan, Corporate Action Network Intern

Their operations are vast and war zone contractors are likely here to stay, as Suzanne Simons writes in her CNN International article. Her article is a comprehensive piece that places emphasis on one of the more salient issues regarding private military and security companies (PMSCs) or contractors: lack of regulation, oversight, and accountability. The PMSC industry has grown rapidly since the war on terror and continues to play an integral role in the conflict in Afghanistan under the Obama administration, but the US government, as reported by the CWC in its Interim Report, lacks resources to manage the industry that it has come to depend on like a crutch.

Since 2001, Congress has appropriated about $830 billion to fund U.S. operations in Iraq and Afghanistan. Over that period, America’s reliance on contractors has grown to unprecedented proportions to support logistics, security, and reconstruction efforts related to those operations. More than 240,000 contractor employees—about 80 percent of them foreign nationals—now work in Iraq and Afghanistan, supporting the Department of Defense. Additional contractor employees support the Department of State and the U.S. Agency for International Development.

-Executive Summary, June 2009 Interim Report from the Commission on Wartime Contracting (CWC)

The result from the combination of a growing military industry and weak government regulation and oversight is a culture of impunity and lack of accountability for the many human rights abuses committed by PMSCs. Yes, five Blackwater guards will be tried in February 2010 for opening fire and killing civilians in Nisour Square and yes, a private civil lawsuit was filed against Blackwater contractor Andrew J. Moonen for killing one of the Iraqi Vice President’s bodyguards in Baghdad’s green zone. However, let us also keep in mind not only how long it took for the Department of Justice (DOJ) to act in the first case, but also the fact that numerous cases of detainee abuse committed by PMSC personnel have gone unprosecuted. In February 2008, Amnesty found out through Senator Durbin’s inquiry to the DOJ that 24 cases of detainee abuse were transferred to the Eastern District of Virginia; 22 of the 24 were dismissed and 2 are pending. Our efforts to find out why these cases were dismissed or unresolved were fruitless.

The industry cannot be expected to regulate itself and a government that is increasingly outsourcing its operations needs to ensure that it has the mechanisms to regulate PMSCs’ activities and hold the companies accountable for their actions (and not reward them with more contracts). Doug Brooks of the International Peace Operations Association (IPOA) stated that PMSCs are here to stay and that it’s about time we made it work but after the recent completion of a twelfth version of IPOA’s Code of Conduct, the trade association still has not made it work. Essentially, the Code is ineffectual. For starters, there are no guidelines detailing what compliance with its standards entails; companies do not have to show that they are operationalizing the Code to IPOA or any third-party monitor; and there are no requirements for public reporting on company efforts to adhere to the Code.

This is why the U.S. government will have to move beyond the Military Extraterritorial Jurisdiction Act (MEJA) to create a new body of legislation that will hold all U.S. government contractors working overseas accountable – irrespective of which government agency employs them – if they commit human rights violations.

For more information on PMSCs, visit www.aiusa.org/pmscs and read CorpWatch’s investigative report on intelligence contracting Outsourcing Intelligence in Iraq.

Much Ado About Blackwater Part II: Xe (the next generation?)

Just as it seemed everyone knew about Blackwater and its laundry list of scandals, the company pulled an all-too-common move of ducking a public-relations battering and organization-level accountability by changing it’s name. Poof. No more “Blackwater”, no more problem. Now, there’s just Xe (the company’s new name) and the “U.S. Training Center”.

I, for one, think we should instead refer to the firm as the “company formerly known as Blackwater”, at least until there’s evidence of real changes in its way of operating. And, by real changes, I don’t just mean that Erik Prince isn’t CEO anymore. Will the company formerly known as Blackwater, for example, adopt a human rights policy? Will it introduce stricter (any) guidelines on training and vetting of employees/contractors? Will it do anything to give the world any kind of assurance that it can be trusted  — particularly to train African military troops and/or in peacekeeping missions — areas of work it has been seeking agressively, perhaps in an attempt to stay more behind the scenes than their U.S. Diplomatic Security contract allowed.

Mr. Prince, the former CEO of the company fomerly known as Blackwater, told the Wall Street Journal that he was “a little worn out by the whole thing, the politics of it all”. Frankly, I’m a little worn out of companies getting away with murder and then doing a quick costume change and thinking that solves the problem.

Prince also told the Journal that the company’s new name, Xe, is an abbreviation for Xenon, ”an inert, non-combustible gas.” But nations and private sector clients already know that the company formerly known as Blackwater is not inert — it’s moving quickly to soak up new contracts, and if history repeats itself and the company does not make real changes to its modus operandi, it will prove combustible once again.

Condi's former professor argues she should be tried as war criminal tonight

Tonight just after 10 pm EST, Condoleeza Rice’s former history professor will argue in a debate with Colorado State Senator Shawn Mitchell that the former Secretary of State should be tried as a war criminal.

The webcast debate will follow a showing of the documentary film Courting Condi, which follows Ms. Rice’s path from a childhood in segregated Birmingham, Alabama to her former post as U.S. Secretary of State.

The film depicts Rice’s defense of Guantanamo and the invasion of Iraq, and her apparent approval of the use of torture of detainees, but also revisits a host of other debacles including her role on the board of Chevron during the company’s extraction of oil in Nigeria amidst extreme violence and shareholder action for the company to engage with the Nigerian government, helping to bring down affirmative action at Stanford, and turning the other cheek in the face of hundreds of thousands of victims of Katrina in the Gulf Coast.

Importantly, the film tackles the issue of impunity of private security contractors (Blackwater) who shot and killed civilians in Baghdad in 2007. While an update to my interview in the film on this topic should note that now there has been an indictment brought against the guards, and at least arguably, contractors in Iraq no longer enjoy the immunity from Iraqi prosecution they did at the time of filming, the need for oversight and adequate regulation, also highlighted by Rep. David Price, still persists.

You can watch a q-and-a with the film’s producer at 10:15 pm EST, and the debate at 10:30 EST, here: