Blackwater USA: A Law Unto Itself

Blackwater's helicopters are a familiar sight over Baghdad

How richly ironic that like the U.S. in Iraq, Blackwater USA is a law unto itself – answerable to no one no matter how questionable its actions may be.

As reported here yesterday, Iraq has withdrawn the license of the controversial security firm, which provides many of the mercenaries who work alongside U.S. troops and diplomats, after company bodyguards allegedly shot dead eight civilians and wounded 13 others in west Baghdad on Sunday.

Blackwater's distinctive small black helicopters hover in the skies above Baghdad and its armed vehicles shadow convoys of senior officials through the city's streets, but like the firm's nominal bosses, under U.S. law it is immunized against prosecution in Iraqi courts.

The only exception would be if the U.S. acceded to such a prosecution, which is beyond unlikely.

Further, under the rules that govern private security contractors in Iraq, the Iraqi government does not have the legal authority to yank its license, while Blackwater may also be immune from prosecution in the U.S. under domestic law. It also is beyond the reach of international law because previous presidential administrations -- and not just the Bush administration -- have rejected the jurisdiction of international courts.

The incident, which followed a mortar attack near where State Department personnel were meeting, has become a diplomatic row of the first water and further enflamed anti-U.S. feelings.

There are more than 180,000 private contractors, including mercenaries, in Iraq. Astoundingly, this is more than the number of U.S. troops and a consequence of the Bush administration's radical vision to outsource all kinds government work, up to and including waging war.

Secretary of State Condoleezza Rice telephoned Iraqi Prime Minister Nouri al-Maliki to express her regret "over the death of innocent civilians," said Tom Casey, a State Department spokesman.

Al Maliki’s office said Rice had pledged to "take immediate steps to show the United States’ willingness to prevent such actions."

It said today that it would review the status of all security contractors, but don't expect any decisive action. The Iraqi government doesn't do decisive, and while it is playing to a war-weary population it also is beholden to the U.S. and the security blanket its military and security contractors provide. Which sums up nicely why what military progress there has been since the surge is pretty much meaningless without a government with the will do deal with the country's profound sectarian political ills.

The embassy said it was cooperating with the Iraqi Government but declined to confirm that Blackwater's licence had been revoked. The North Carolina-based company is responsible for U.S. embassy security.

Blackwater defended its actions, saying that its personnel had come under attack from armed militants.

Said company spokeswoman Anne Tyrrell in an email message:

"The 'civilians' reportedly fired upon by Blackwater professionals were in fact armed enemies, and Blackwater personnel returned defensive fire. Blackwater professionals heroically defended American lives in a war zone."

Perhaps.

Except for the people involved in the incident, all of the 1,000 or so Blackwater employees working in Iraq have been ordered to leave by the Baghdad government, but it apparently has no legal authority to do so and there is some question as to whether it can even suspend or revoke the firms license to operate in the country.

This is because of an interesting little piece of work called CPA Order 17, which was issued by L. Paul Bremer, the head of the Coalition Provisional Authority, in June 2004 on the day before it ceased to exist.

CPA Order 17 reads:

"Contractors . . . shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts."

Mercenaries have played roles in virtually every U.S. war dating back to the War of Independence and always have been granted a certain amount of protection. But the huge gray area in which they fall in Iraq has become contentious because of repeated incidents involving Blackwater and the two other largest security contractors -- Triple Canopy and DynCorp.

The contractors cannot be touched by international law. For one thing, the U.S. is not a member of the International Criminal Court in the Hague, and the Bush administration has showed no inclination to change the precedent set by previous presidents.

Meanwhile, there is no legal framework in U.S. law covering what happens if U.S. contractors engage in criminal acts overseas, although some members of Congress are now attempting to change that.

Says Scott Horton, who chairs the International Law Committee of the New York City Bar Association:

"Blackwater and all these other contractors are beyond the reach of the justice process in Iraq. They can not be held to account. There is nothing [the Iraqi government] can do that gives them the right to punish someone for misbehaving or doing anything else."

Blackwater is led by Erik Prince, a former Navy SEAL and messianic right winger who has close ties to the White House and Pentagon.

Many of Blackwater's operatives are former Army Special Forces troopers and SEALS who get paid fat salaries to guard prisoners, protect convoys, stand sentry and do security overflights in those helicopters.

Four Blackwater mercenaries were killed by a mob in Fallujah in March 2004 and their bodies hung from the trestles of a bridge.

Their widows sued Blackwater. They claimed that Prince, in an effort to increase his profits, failed to provide the armored vehicles, weapons, maps and necessary lead time in which the four men could have familiarized themselves with the area.

Blackwater claimed that it was above the law, but when that argument failed to pass muster with U.S. courts who heard the widows' appeals, it countersued the men's estates for $10 million to try to silence the widows.

Even in the extremely unlikely event that the U.S. government would accede to allowing Iraq to prosecute the Blackwater bodyguards, a another whole set of questions would arise.

Peter W. Singer, an expert on private security contractors who is a senior fellow at the Brookings Institute, says:

"The question for the U.S. is whether it will hand over its citizens or contractors to an Iraqi court, particularly an Iraqi court that's going to try and make a political point out of this."

If the United States is not willing to do so because of concerns that the trial will be politically motivated, Singer adds, that begs another question:

"If we really say that openly, doesn't that defeat everything we heard in the Kabuki play last week with [General] Petraeus and [Ambassador] Crocker, that everything was going great? What happens if we say, 'No, we don't think you can deal with this fairly in your justice system?' "

Indeed it does.

More here and here.