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.
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“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.”
After the Iraqi government announced its intent to prosecute the Blackwater men in Iraq, the United States argued that under Order 17 the US legal system was the only venue available for them to seek justice. Under intense pressure from Congress and Baghdad, the Bush Justice Department reluctantly began seeking indictments against Blackwater personnel. In December 2008 a grand jury indicted five operatives on manslaughter charges while a sixth contractor pleaded guilty to killing an unarmed Iraqi civilian. The case was set to go to trial in February.
Then came Judge Urbina’s New Year’s Eve ruling dismissing all charges against the Blackwater operatives on the grounds that their constitutional rights had been violated by federal prosecutors. To put Urbina’s decision in historical context, Oliver North escaped criminal liability for his role in the Iran/Contra affair, despite mountains of evidence against him, precisely the same way. Indeed, Urbina cited the North cases in his Blackwater decision.
“Technically, Urbina’s legal analysis all seems to be correct,” said military and constitutional law expert Scott Horton. “The problem at the end of the day is with the remedy. Because these prosecutors behaved unethically, the Blackwater guys are off the hook, and there’s no prosecution? That’s just bizarre.” Horton, who has closely monitored the case, said he was “infuriated at the incredible laziness of the prosecution,” saying that prosecutors engaged in “deceptive, abusive and unethical conduct.”
In light of Urbina’s ruling, Horton said that the Iraqi government would be justified in asking the Obama administration to extradite the Blackwater operatives. Iraq, he says, could argue that Order 17, which was the law of the land, legally barred the men from immunity because they were not acting within the scope of their contract. Order 17 also allowed the United States to waive immunity in individual cases and permit a trial in Iraqi courts, something the Obama administration could do.
“The fact that the US is unable for purely technical reasons that have nothing to do with guilt or innocence to bring the prosecution means it’s appropriate for them to extradite the men,” said Horton, adding that the Iraqis could cite “the fact that the Justice Department attempted to prosecute, which suggests that the US government and US government prosecutors already concluded that prosecution was appropriate. So there is no reason for the US to deny an extradition request–no legitimate reason whatsoever.”
Legal experts also say that the Justice Department could seek new indictments against the Blackwater men by convening a new grand jury and re-presenting the case without tainted evidence. It is clear that prosecutors did not need to rely on the Blackwater contractors’ protected statements. They already had scores of Iraqi eyewitnesses; the findings of the US military investigation, which concluded the men had fired unprovoked; forensic evidence; and the testimony of the sixth Blackwater operative, who had pleaded guilty and was cooperating with prosecutors. Prosecutors also have the cooperation of three other Blackwater guards at the square that day, who according to Judge Urbina have “identified which members of the Raven 23 convoy were the shooters, provided detailed accounts of the events that occurred at Nisour Square and testified regarding the absence of any threat justifying the defendants’ actions.”
Jan Schakowsky of the House Intelligence Committee says she and her colleagues will investigate the events leading up to the dismissal of charges against the Blackwater operatives. “This case and the failure to bring these men to justice,” she says, “just sends a message that these contractors–at least as of now–can literally get away with murder.”