U.S. Must Stop Obstructing Edward Snowden’s Ability to Claim Asylum

By Widney Brown, Senior Director of International Law and Policy, Amnesty International

Let’s face it: the reason Edward Snowden is stuck in limbo in Moscow is because he has revealed the unlawful behavior of the U.S. and other governments. They are trying to turn the tables and say he is the criminal when in fact it is the governments’ behavior that is unlawful.

“We think that Snowden will be in danger if he is given over to the authorities of the United States,” Amnesty International representative Sergei Nikitin said after he met with Snowden at the Moscow airport.

Indeed, the U.S. government is not only pursuing him, wanting to arrest him and charge him in the United States but they’re also obstructing his ability to claim asylum elsewhere. The Russian president has said if Snowden stays in Russia he has to shut up – but you cannot give somebody asylum and say that it is conditional on your relinquishing your right.

So what we need to do is keep heavy pressure on the U.S. government and others who are actively obstructing his right to seek asylum. We need to keep bringing the focus back to the unlawful activity of the U.S. government and other governments that he revealed.

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.)


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


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.

DoD Risks Hiring Unscrupulous Arms Brokers with Foreign Arms Purchases

The Washington Post’s Saturday front page article “U.S. military criticized for purchase of Russian copters for Afghan air corps” once again raised concerns about the Pentagon’s purchase of foreign-sourced arms.  While the Post highlighted opposition of the helicopter deal by U.S. Senators such as Richard Shelby for “massive waste, cost overruns, schedule delays, safety concerns and major delivery problems”, it failed to mention the serious risk of DoD hiring unscrupulous or problematic arms brokers in such deals.  As DoD continues to purchase foreign-sourced arms, including 10 new Russian helicopters for Afghanistan, additional controls are urgently needed.

In September 2009, Amnesty International USA published a policy briefing that highlighted six cases in which Pentagon funds were used to contract arms brokers that had been either connected to breaches of international arms embargoes, named in reliable UN reports as being involved in illegal arms trafficking, listed on the U.S. Department of State’s Watch List, or whose agent had been indicted for breaches of U.S. arms control laws.  All of these contracts were for foreign-sourced assault rifles or ammunition.  As a result, millions of U.S. dollars were given to these individuals and in at least one case the U.S. government received tons of faulty ammunition, putting Afghan and U.S. forces at risk.

One of the key reason’s DoD funds were funneled to these arms brokers is a significant lack of controls on foreign-sourced arms purchases compared to controls on U.S. arms exports.  For example, in some cases DoD officials are not aware of or do not screen all of the subcontractors involved in a contract to procure or transfer foreign-sourced arms.  There are also no contract clauses that specifically prohibit prime contractors from subcontracting with entities that have been accused of transferring arms in contravention of U.S. national laws or convicted of arms trafficking in foreign courts.

Although some may think purchasing larger arms such as helicopters diminishes the risk of hiring problematic arms brokers, look no further than the Army’s past purchase of Russian helicopters for Afghanistan.  According to a blog in early 2009 on Wired, the U.S. Army reportedly hired an unknown Slovak ambulance company to supply three of the Russian Mi-17 helicopters to Afghanistan, and the helicopters had to be returned.

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.

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.

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 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.

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.