Private military and security companies wanted for hire by CIA as "hitmen"?

by Lillian Tan, Corporate Action Network Intern

September 16, 2009 will be the second anniversary of the Nisour Square shootings, in which six Blackwater (now Xe) personnel shot and killed 17 Iraqi civilians outside Baghdad’s green zone. The bad media which surrounded the incident galvanized the U.S. Government to take some steps towards ensuring that the Department of Defense (DOD) and Department of State (DOS) better regulate PMSC operations in Iraq. But was it enough?

The six Blackwater guards who allegedly indiscriminately opened fire in Nisour Square on September 16, 2007 were finally indicted late last year. The trial hasn’t even started but Blackwater/XE personnel are already implicated in another incident. On May 5, 2009, four Blackwater/Xe personnel reportedly shot and killed two Afghan civilians in Kabul. So much for lessons learned in Iraq; so much for regulation, oversight, and accountability.

However, the U.S. government should not keep pushing aside the questions of how to effectively regulate and where to set the limits on using PMSCs — especially with the increased number of contractors flooding into Afghanistan in the wake of the planned surge in troops. The longer it takes for the U.S. government to finally take a position and answer these questions, the longer PMSCs operate in a legal limbo, in which they may commit human rights abuses with impunity.

Just recently, it has been reported that the CIA contracted Blackwater/Xe to assist in a secret assassination program of which the Congress was not even aware. According to the August 20, 2009 New York Times, “it is unclear if the CIA planned to use Blackwater/Xe to actually capture and kill Qaeda operatives, or just to help with training and surveillance in the program.”

The article also mentions that government officials are concerned about serious issues of accountability when contractors are brought into covert and lethal operations. Where there is no transparency, accountability will be near impossible if a crime were committed during those operations. The past administration has been quick to invoke several legal reasons to withhold sensitive information from the public — from the Glomar response to claiming that releasing detainee abuse photos would be against the Geneva Conventions. When the same photos were about to be released in May 2009, the Obama administration sought to block their release arguing that the images could further inflame anti-American opinion. If it is already this difficult to get information out of government agencies, then imagine the difficulty of obtaining information for the purpose of accountability when there’s a private contract involved in a sensitive national operation.

Another area of great concern that the New York Times article briefly touches upon is whether, aside from the concerns about accountability for PMSCs in such a program, PMSCs should be involved in the first place? As Senator Diane Feinstein (CA) aptly states, “It is too easy to contract out work that you don’t want to accept responsibility for”. In the debate about the use of PMSCs in modern warfare, there is the pressing question of what functions a government can and cannot outsource. In U.S. statute and policy, inherently governmental functions are loosely defined as “a function so intimately related to the public interest” that it must be performed by Federal employees. The list of functions that fall under “inherently governmental” is also extremely inconsistent, varying from agency to agency. Because of this lack of a clear and consistent definition, PMSCs are contracted to perform duties in highly sensitive areas such as intelligence and now, even assassinations.

To better regulate the industry, Congress also needs to pass legislation that will close the legal vacuum in which PMSCs are operating and appropriate more resources to regulation and oversight. The U.S. government currently does not adequately regulate the industry and its statutes to hold PMSCs accountable for crimes overseas are few. In its June 2009 Interim Report, the Commission on Wartime Contracting finds that U.S. government oversight of PMSCs is inadequate. Because they mostly operate transnationally, jurisdiction can become a problem. While PMSCs contracted by the DOD can be held accountable under the Military Extraterritorial Jurisdiction Act (MEJA) and the Uniform Code of Military Justice (UCMJ), contractors hired by other agencies such as the DOS often fall through legal gaps.

The foundation to improve regulation, oversight and accountability of PMSCs has already been set. To close legal gaps such as the one in MEJA, legislation has been proposed in the past and we look forward to similar legislation in the 111th Session of Congress. As for clarifying definitions of “inherently governmental functions”, a bipartisan Commission on Wartime Contracting was established in Public Law 110-181 to recommend among other things improvements in its Final Report on the “process for determining which functions are inherently governmental and which functions are appropriate for performance by contractors in a contingency operation, especially whether providing security in an area of combat operations is inherently governmental.” On an international level, the UN Working Group on Mercenaries (UNWGM) completed its two-week visit to the U.S. on August 3rd, 2009. During that time, the UNWGM met with the DOJ, members of Congress, governmental officials and public interest groups to discuss how PMSCs can be regulated on international, regional, national and local levels. Such efforts are all a step in the right direction.

Iraq: 128 Executions Planned

On Monday, March 9, the Iraqi government announced to Amnesty International that 128 death sentences have been ratified, and that executions would commence soon at the rate of 20 per week.  Exactly who these 128 people are, what crimes they have been condemned for, or how imminent these executions are is not known.  It is also now known how many of these prisoners facing execution might have been transferred to Iraqi authorities from US custody following the Status of Forces Agreement that came into effect at the beginning of this year.

What is known is that Iraqi trials do not always conform to international fair trial standards.

Ironically, a moratorium on executions was in place in Iraq while it was under US occupation, but that came to an end in August of 2004.  It is not known how many executions have taken place since then (at least 65 in 2006, at least 33 in 2007 and at least 34 in 2008).  By any measure, 128 executions, or 20 executions a week, would be a disturbing demonstration of enthusiasm for state killing in a country trying to recover from years of violent upheaval.

Please urge Iraqi authorities to commute these death sentences and reinstate the moratorium on executions.

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:

An Interrogator Speaks

I should have felt triumphant when I returned from Iraq in August 2006. Instead, I was worried and exhausted. My team of interrogators had successfully hunted down one of the most notorious mass murderers of our generation, Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq and the mastermind of the campaign of suicide bombings that had helped plunge Iraq into civil war. But instead of celebrating our success, my mind was consumed with the unfinished business of our mission: fixing the deeply flawed, ineffective and un-American way the U.S. military conducts interrogations in Iraq. I’m still alarmed about that today.

The quote is from former interrogator Matthew Alexander’s piece in the Washington Post last November, “I’m Still Tortured By What I Saw in Iraq.”

Mr. Alexander is the author of “How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Burtality, to Take Down the Deadliest Man in Iraq” and we’ve recently confirmed that he’ll be one of several speakers at Amnesty International USA’s Annual General Meeting, March 27 – 29, in Boston.

Hope to see you there.

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.

Weapons in Iraq Still at Risk of Loss or Theft

Tens of thousands of arms captured from insurgent armed groups in Iraq have yet to be recorded by Iraqi or U.S. authorities making it easier for the weapons to be lost or stolen, according to a U.S. Department of Defense (DoD) Inspector General’s issued just before the Christmas holiday last year. Poor accountability of night vision devices (NVD) remains a problem.

In the last few years, several reports have revealed the dangers of failing to properly secure and manage weapons in Iraq. For example, described in a November 2008 Amnesty report, some members of Iraqi insurgent groups have infiltrated the Iraqi police force and used police arms to carry out serious human rights abuses. U.S. military officials have also accused Iraqi security guards of stealing hundreds of weapons in 2006 at arms depots such as Taji National Army Depot (NAD).

While there have been significant strides in improving the accountability of U.S. provided weapons in Iraq as well as helping Iraqi authorities properly manage arms and ammunition under their control, a few areas such as the accountability for captured weapons and NVDs still need focused attention.

According to the DoD Inspector General’s report, only around 20,000 of the estimated 80,000 captured weapons stored at various depot locations throughout Iraq had been processed. Processing includes having the weapon’s serial number recorded and inspecting the quality of the weapon. Some of the unprocessed arms are at the Taji NAD and Kirkush Military Training Base among others.

In addition, the DoD Inspector General raised concerns about the accountability of U.S. issued night vision devices (NVD) to the Iraqi security forces. NVD receive extra scrutiny under DoD regulations because they significantly increase a fighting forces’ tactical ability. A DoD investigation showed 26,000 NVDs lacked proper documentation, raising the risk of loss or theft similar to captured weapons.

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.

There Is No Justification In Keeping Gitmo Open

Below is my reply on the Wall Street Journal’s Opinion Piece of Nov. 4, 2008: Guantanamo Revelation.

I served in the military for 14 years, including three deployments to the Middle East. My last deployment was to Iraq for Operation Iraqi Freedom and I remain deployed in Baghdad after its fall until December, 2003. As an Arabic speaker, I worked closely with Arabs of nearly all nationalities. I had many frank discussions. In discussing the difference between the US and Saddam’s Iraq, I could always point to the legal system in the US as a venue for any citizen to protest their grievances and to protect their constitutional rights. In contrast, I could discuss Saddam’s closed and often secret state security courts, arbitrary detentions, and prolonged arrest of state enemies without trial. This point became lost on Arabs after Gitmo continued to operate as it has over the last 7 years….7 years in which 775 people have been detained, approximately 250 remain in detention, and only two have faced anything resembling a trial.

If a Gulag is where Soviet officials sent enemies of the state, whether real or perceived, to some remote outpost and then removed the prisoners’ ability to challenge the legality of their detention or have a timely and fair trial, then GITMO is a gulag in all but name only. Its reputation as a gulag is not false, but well earned. SEE THE REST OF THIS POST