Much Ado about Blackwater: Part I – What were they (we) doing in Iraq anyway?

In a series of blog posts, I will humbly try to contribute clarity to the plethora of news coverage recently devoted to Blackwater Worldwide, a company which, among other things, provides military and security services to the US government in Iraq. Together, we will sift through the criminal prosecution of the Blackwater contractors involved in the Nisour Square killings of 2007, the Iraqi license denial, the contract with the State Department, the US-Iraq Security Agreement and what this all means for corporate accountability on the battlefield.

Today, let’s start with the yesterday’s coverage of the letter signed by Defense Department Deputy Secretary Gordon England, stating that companies, including Blackwater, working on State Department Diplomatic Security contracts were not engaged in “employment in support of the DOD mission”.

Though it seems Mr. England is quite clear on this point, others are not, and have been debating it literally for years. (It’s an important point because it’s the part of the law that gives the DOJ jurisdiction over the contractors.)

What happens next in court might explain why there has been such a delay in getting to this brink of accountability in the first place – someone has to finally figure out what “the mission” in Iraq is. Maybe there were/are many missions. Once the court gets that sorted out, I suppose the next step will be to interpret the now famous (infamous?) Military Extraterritorial Jurisdiction Act to decipher what is meant by “supporting a DOD mission,” and finally to decide whether Blackwater was doing that.

These decisions could have sweeping implications not only for the state of US law and foreign policy, but also in interpreting the recently enacted US-Iraq Security Agreement, and possibly setting the State and Defense Departments on a trajectory of cooperative regulation of companies they contract – something, despite all the hoopla over Blackwater these days, that has yet to happen.

I'd Hire Blackwater? A wake-up call to renewed action.

When a good friend left for Iraq, I noticed I began to pay even closer attention to the daily news reports coming out of Baghdad. I emailed, but didn’t hear back. Then reports of more suicide bombings, killing dozens. Then the outbreak of extreme levels of violence in Israel/Palestine. And finally, a thought entered my mind: if I had the money, I’d hire a Blackwater guard and fly over there, see for myself, find those I care about and make sure they’re ok. Wait, what did I just say? I’d hire Blackwater?

As soon as I entertained the thought, I delved immediately into reflection on it.

Maybe it is the same political, economic, religious or other fervor that drives states and peoples into conflicts and into dependence on (or addiction to) military and security forces (public or private) that I was experiencing on a micro level –feeling an urgent and desperate need to do something, go somewhere, be someplace. As time passed without information, communication, resolution, the need to protect my own interest consumed everything in its path.

Driven by emotion. Untamed by perspective or rationality. This thought inherently dangerous because of its drunken-stupor-foundation in restlessness and despair. But that’s what law and regulation is there for. When people, states, companies become engulfed in a tidal wave of philosophy, belief, or emotion, we rely on time-tested structures and principles to protect ourselves from ourselves.

This is why Amnesty and other human rights groups have been pushing so hard for stronger regulation of companies that operate in conflict zones – places that are extremely vulnerable to rampant human rights violations, attacks on civilians, killing of innocents. We can’t let the urge to protect our own interests at any cost consume everything else.

Maybe a lot of us are watching horrific violence unfold in the pages of the daily paper or on our TV or computer screens and feel uncomfortably helpless in the comforts of our own security. But there is a lot we can do on our own soil. We don’t all need to hire private security detail and hop a plane to the Middle East. We need to work now – sober, dedicated and strong – to make sure we improve law and enforcement mechanisms that will ultimately protect the human rights in lands near and far.

The U.S.-Iraq Security Agreement now in effect includes a withdrawal timeline for troops to leave Iraq, but not for security companies to leave. Though there has been a lot of talk about Blackwater, and the indictment of some of its personnel, the reality is that there are many U.S. companies operating in sensitive roles overseas without adequate regulation or oversight.

The to-do list of the incoming administration and the next Congressional session is already packed with urgent agendas – improved law relating to companies operating abroad, particularly in conflict and war zones, must not be forgotten.

[Stay updated on ways to take action -- www.amnestyusa.org/pmscs]

Blackwater Indictment Good Step; Better Law Next Step

In indicting five Blackwater personnel, and accepting a guilty plea of a sixth, for the 2007 Nisour Square shootings resulting in the death of 17 Iraqis, the Justice Department relied on a much discussed law, the Military Extraterritorial Jurisdiction Act (MEJA) to get jurisdiction over the contractors. (U.S. criminal law is generally restricted to the confines of U.S. territories and thus inapplicable to crimes committed elsewhere.)

A debate about whether MEJA would apply to these contractors centered on one question: whether State Department security contractors, including Blackwater, could be said to be supporting a Defense Department mission in Iraq, and thus be considered “employed by the Armed Forces” as it is defined in the law.

Yet, whether the court ultimately decides that MEJA, as it stands, is applicable to DOS contractors in this instance or not does not mean there isn’t room for improvement in the law.

Now is the time to pick up the ball again and continue moving forward. We shouldn’t wait for the next Nisour Square to contemplate whether U.S. law has kept pace with U.S. companies that regularly operate internationally, often in high-risk environments like conflict zones. It’s not hard to imagine that the next case won’t involve a DOD mission at all, and we’ll be scrambling for law and order, again.

On September 16, 2007, the fury that must have existed in Nisour Square set off another nucleus of confusion and activity – once the killings were known, the issue was what could be done about them. Representative David Price (NC) was already on top of the issue, introducing a bill and leading an effort in the House to expand and clarify MEJA and better regulate the military and security industry. Senator Barack Obama led the cause in the Senate.

With Senator Obama now President-elect Obama, let’s hope that the move to the White House will bring not only fulfillment of promises to be a better neighbor in our foreign affairs but also that our new President will continue to support the efforts of his tireless colleagues in Congress to set the stage for a more humane way for the United States to do business.

US-Iraq Security Agreement Forgets Blackwater

Yesterday, the Associated Press ran the headline US Contractors Lose Immunity in Iraq Security Deal.

But, if what comes to your mind when you think of US contractors operating in Iraq with immunity is, for example, the indiscriminate shooting and killing of civilians by Blackwater personnel, read the fine print – the new assertion of joint Iraqi-US jurisdiction doesn’t apply to companies contracted by anyone other than the Defense Department.

This means Blackwater personnel working on a contract with the State Department — the same one under which Nisoor Sq killings occurred – are good to go with Iraqi immunity.

There are murmurings that US State Department contractors will be subject of similar, future agreements. It’s not clear why this agreement couldn’t have defined contractors more broadly to begin with.

New Prez, How to End Impunity for Military Contractors

This week, Human Rights First (HRF) issued a report, “How to End Impunity for Private Security and Other Contractors: Blueprint for the Next Administration“.

The report helpfully encapsulates many of the calls for better oversight, monitoring and accountability that HRF, Amnesty International and others have been calling for with regard to companies, like Blackwater, Titan, KBR…, whose personnel have engaged in human rights abuses from rape and torture to killing, with impunity.

It also posits some fresh ideas into the conversation, such as extending the Freedom of Information Act (FOIA) to these companies and reforming state secret and other privileges that often get in the way of justice for victims.

However, the report suffers from an oversimplification, with an implied reference to fossilized examples as representative of the scope of the problem. In this sense, it feels like a recycled agenda from a “multi-stakeholder” conference. 

We should be working together to progress most of the recommendations in the report, but a few things should not be sacrificed in the name of appearing practical: human rights abuses should be prosecuted because we don’t tolerate them, period, not just because they foster hostility toward us and undermine military missions; the US shouldn’t consider whether to ban contractor roles in rendition, it should prohibit any role in rendition, which is illegal; UCMJ application to company personnel shouldn’t be revised, it should be repealed — why should we potentially subject the entire world (the result of subcontracting of third-country nationals) to the US military justice system?

Finally, let’s tell it like it is: many companies that provide services directly or indirectly to military operations shun “military” as part of an identification of their industry, instead often preferring “security” contractor or provider which sounds more benign. With few exceptions, HRF’s report should make them happy. Even its title does not mention the word military.