Making a Killing
Maliki has been under heavy US pressure to back off his initial demands. While Rice immediately called the Iraqi prime minister ostensibly to apologize, she made a point of emphasizing publicly that "we need protection for our diplomats." A few days later, Tahseen Sheikhly, a representative of Maliki's government, stated, "If we drive out this company immediately, there will be a security vacuum. That would cause a big imbalance in the security situation." Given the carnage of September 16, it was a difficult statement to wrap one's head around.
Maliki then agreed to withhold judgment on Blackwater's status, pending the conclusion of a joint US-Iraqi investigation. If he ultimately goes along with the United States and tolerates Blackwater's presence, the political consequences will be severe. Among those calling for the firm's expulsion is Muqtada al-Sadr. A cave-in by Maliki could weaken his already tenuous grip on power and reinforce the widespread perception that he is merely a puppet of the US occupation. Clearly aware of this, while visiting the United States a week after the shootings, Maliki went so far as to call the situation "a serious challenge to the sovereignty of Iraq" that "cannot be accepted."
In Baghdad there is great determination to bring the perpetrators of the Nisour Square slaughter to justice. An investigative team made up of officials from Iraq's Interior, National Security and Defense ministries said in a preliminary report that "the murder of citizens in cold blood in the Nisour area by Blackwater is considered a terrorist action against civilians just like any other terrorist operation." But Iraqi investigators claim that they have received little or no information from the US government and have been denied access to the Blackwater operatives involved in the shootings. A US official appeared to dismiss the validity of the Iraqi investigation, telling the New York Times, "There is only the joint investigation that we have with the Iraqis."
Still, Iraqi officials announced their intent to bring criminal charges against the Blackwater forces involved in the shooting, and the report stated, "The criminals will be referred to the Iraqi court system." Abdul Sattar Ghafour Bairaqdar, a member of Iraq's Supreme Judiciary Council, the country's highest court, recently said, "This company is subject to Iraqi law, and the crime committed was on Iraqi territory, and the Iraqi judiciary is responsible for tackling the case."
Unfortunately, things are not quite so simple.
On June 27, 2004, the day before Paul Bremer skulked out of Baghdad, he issued a decree known as Order 17, which granted sweeping immunity to private contractors working for the United States in Iraq, effectively barring the Iraqi government from prosecuting contractor crimes in domestic courts. The timing was curious, given that Bremer was leaving after allegedly "handing over sovereignty" to the Iraqi government.
Shortly after the Nisour shooting, Maliki said he wanted to change Order 17 to permit prosecution in Iraqi courts of criminal activities committed by contractors. The Iraqi Parliament could also try to pass a law repealing it altogether. Michael Ratner, president of the Center for Constitutional Rights, characterizes Order 17 as a clear violation of Iraqi sovereignty but points out that it contains a provision that allows the United States to waive the immunity with regard to individuals. "A possible first step for Iraq is to ask the US to waive the immunity of those involved in the killing," says Ratner, who concedes that this is an unlikely move from Washington, "as it would frighten other private contractors." He also said the immunity is a part of the US strategy for using private companies like Blackwater to deter resistance attacks on occupation personnel. "None of this is by chance; their very purpose is to brutalize and strike fear into the people of Iraq--that is why they are back on the streets."
Former CIA case officer Robert Baer says that the cleanest solution would be for the United States to rescind Order 17. "Do we let Iraqi Embassy private security contractors race around Washington or New York, machine guns sticking out the window, to prevent carjackings?" asked Baer. "This would effectively close down private security companies. There is no reason the State Department cannot provide its own security." He points out that State Department security officers are under diplomatic immunity, but if there's a questionable shooting, the Iraqi government would have the option of expelling the perpetrators under the Vienna Convention.