Tuesday, September 18, 2007

Commentary on potential criminal liability by Blackwater security personnel

On my way home from work, I had the pleasure of listening to Melissa Block's interview of the highly esteemed Scott Silliman, the Executive Director of Duke Law School's Center on Law, Ethics, and National Security, concerning potential criminal liability of Blackwater security personnel involved in shooting deaths of Iraqis over this past weekend. The interview addressed, among other topics, the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) and the recent changes to Article 2 of the UCMJ that have so obsessed the No Man. The interview should be accessible through this link.


John O'Connor said...

I have my doubts about whether the Blackwater mission has a sufficient nexus to the DoD mission (as opposed to the State Department mission) to implicate MEJA. I don't really know enough about the duties of the Blackwater personnel, but what I can glean from the media is that they were simply providing security for State Department personnel. I don't think that cuts it under MEJA, though there may be more facts than I know about here.

Guert Gansevoort said...

I tend to agree with JOC. MEJA may not apply. But what about Article 802(a)(10), which has been discussed extensively on this blog? Why will civilian contractors never be held accountable for war crimes? If some of the articles published in the Washington Post are true, some of the contractors in Iraq are killing for sport.

The government's unwillingness to prosecute this and other similar offenses may be due to the fact that the contractors' military counterparts are often given slaps on the wrist for similar atrocities. Perhaps the powers within the Pentagon do not wish to risk the certain constitutional challenge to a misdemeanor conviction and an accompanying sentence to thirty days restriction to blackwater’s headquarters. But surely mercenaries on the battlefield should not be left to regulate themselves as if they were a bar association. Even if Article 2 is successfully challenged by a convicted contractor, at least he will spend as much time in prison as Lt. Calley, which I believe was about five months of house arrest.

On another related note, might the Fijians and American Samoans often hired by these firms as discount gunmen be tried as unlawful enemy combatants under the Military Commissions Act? They are not american citizens and they don’t appear to meet the statute’s definition of lawful combatants, as they do not wear uniforms or abide by the laws of war.

John O'Connor said...

I similarly have my doubts about whether Article 2(a)(10) applies here. If we begin by assuming that it is constitutional, you still have to have the contractor "accompanying an armed force in the field." Were these Blackwater guys accokpanying the armed forces? From reading media accounts, they appear to be operating separate and apart from the armed forces, instead accompanying State Department officials where need be. Again, I don't know all the facts, but that does appear to be an obstacle to a court-martial under Article 2(a)(10).

As for the Military Commissions Act, I know next to nothing about that statute, but would the U.S. government actually allege that employees of a firm the State Department hired were unlawful enemy combatants? Unlawful in what way? An enemy to whom? Again, I know next to nothing aboutb the statute, but it strikes me as weird that it might apply to these facts.