In a stunning ninety-page decision issued on New Year’s Eve, federal judge Ricardo Urbina dismissed all charges against five Blackwater operatives accused of gunning down fourteen Iraqi civilians in Baghdad’s Nisour Square in September 2007. The cases were not thrown out for lack of evidence. In fact, Judge Urbina acknowledged in his decision that military investigators found that the shootings were unprovoked, writing that “the specter of improper and potentially criminal conduct was apparent to government officials almost immediately after the incident.” Instead, Urbina declared that federal prosecutors committed a “reckless violation of the defendants’ constitutional rights” by relying on sworn statements the Blackwater shooters gave in the immediate aftermath of the shooting, statements that were forbidden to be used in a criminal case.
Urbina’s order, however technically sound, is a blow for the Iraqi victims’ families and sends a message that US-funded private forces are above the rule of law–American law at least.
A source familiar with the US military investigation of the Nisour Square shooting has told The Nation that the Blackwater personnel allegedly responsible should never have been allowed to leave Iraq and should have been handed over to Iraqi authorities for potential prosecution in Iraqi courts. The source, who insisted on anonymity because of the sensitivity of the ongoing case, said US military investigators had determined the men were not eligible for the immunity granted to contractors under Order 17, the edict issued by L. Paul Bremer, then head of the Coalition Provisional Authority, which barred Iraqi courts from prosecuting US contractors without US consent.
Order 17 was in effect at the time of the Nisour shooting, and within days of the incident US authorities and Blackwater secretly ferried the operatives out of Iraq despite Baghdad’s insistence on prosecuting them. The Bush administration often portrayed Order 17 as granting sweeping immunity to contractors. However, the order clearly stated that immunity applied only if contractors were acting “pursuant to the terms and conditions” of their official contract.
The source familiar with the US military investigation told The Nation that military investigators had determined that the men from Blackwater’s Raven 23 convoy had no rights to immunity as defined in Order 17 because they were not acting within the scope of their contract at the time of the shooting and had disobeyed orders that would have prevented them from being at Nisour Square. The source also said that because they had fired unprovoked on civilians, they had disregarded official rules for the use of force for State Department contractors, further invalidating any immunity claim.
“In order to be entitled to immunity, you’ve got to be acting pursuant to the terms and conditions of the contract. That means you’ve got to be acting according to the rules for the use of force,” which authorize shooting only in self-defense or in defense of a principal. “When you’re shooting unarmed civilians as they’re running away from you, you are not acting according to those terms, so you are not immune from anything. There’s no immunity there, and that entitles the Iraqi government at that juncture to press criminal charges under their system.” He added, “By every right, the Iraqi authorities should have been able to come and get Blackwater–come and get those guys.” According to the source, US officials were intent on avoiding Iraqi courts. “Well, that wasn’t going to happen,” he said.
“This was terribly damaging to the counterinsurgency efforts because one of the primary pillars of counterinsurgency operations is rule of law. We had folks deployed all over Iraq risking life and limb to hammer the local Iraqis on getting rid of corruption, holding wrongdoers accountable and following the rule of law. One standard is for everybody, not just some, and we’re preaching that and slamming that all over the country and, on the same token, now we’re the ones saying, ‘Well, the rule of law applies to you, but not us.’ That’s what this did. It utterly undermined the enormous work that had gone into that country.” The only “credible substitute” to Iraqi prosecution, he said, “would be to hold Blackwater accountable in our courts. That had to happen–it must happen.”