Wednesday, September 03, 2008

MEJA and Blackwater: A Question of Jurisdiction

Assuming the Washington Post is correct, it appears that the Department of Justice may be close to indicting some Blackwater security guards for a shooting that happened last year in Iraq.

The DOJ would bring charges under the Military Extraterritorial Jurisdiction Act (MEJA).

The Congressional Budget Office issued a report recently about the use of contractors in Iraq. In that report, the CBO said, amongst other things, that “MEJA does not apply to civilians working…for federal departments or agencies other than DOD.”

The Blackwater security guards were working as security contractors for the Department of State.

Some argue that MEJA does not cover the Blackwater security guards, and thus DOJ cannot bring charges against the guards for the alleged incident last year in Iraq. Others argue that the 2005 amendment to MEJA expanded its’ provisions to include contractors “supporting the mission of the Department of Defense,” and thus the contractors are subject to prosecution under MEJA.

What do you think?


Anonymous said...

Who, me?

Anonymous said...

The whole point of our system is to punish the guilty, so what exactly is your objection? On a related note, is this blog openly demo-lib slanted or is that just an unspoken truth?

Anonymous said...

I guess you don't know much about Cully Stimson if you think he's "openly demo-lib slanted." Try Google.

Anonymous said...

The whole point of our system is not to punish the guilty.

I'm not disclaiming this value as one of the pillars - but hardly "the whole point."

And what was the name of that 70's movie, the climax of which was: "they're all guilty!"

Cloudesley Shovell said...

Anon at 123pm--would you perhaps be referring to "And Justice for All" with Al Pacino as the disollusioned criminal defense atty?

I've previously stated how I feel about this recent trend to assert jurisdiction farther and farther beyond the borders of the USA. Bad idea.

What are the chances of a court paying lip service to the rule of lenity and the requirement to strictly construe jurisdictional statutes, and then deciding that MEJA grants jurisdiction over these offenses? Pretty good, I'd say. CAAF isn't the only court itching to expand its power.

Anonymous said...

It seems that this issue would be one of legislative intent. Did congress only intend to cover DoD mercenaries, or anyone employed by the US Govt?

Anonymous said...

Cloudesley, good point. I think you have provided the template for the inevitable decision.

But your post begs the question: Why are courts "itching to expand their jurisdiction?"

I don't think its a simple power issue.

I think it relates back to the post that "the whole point of our system is to punish the guilty." Under this view, courts are not independent bodies...but agents of an imagined Congressional mission ("to punish the guilty"). This is not overt power-seeking, but actually a false sense of humility. ("Gosh. I'm just a simple 'ol judge trying to carry out my duties.") But once self-righteousness attaches to a mission, stand back.

Anon at 2:20, you may be right. But I like Scalia's retort: "No, its NOT an issue of legislative intent. Its an issue of legislative language." It goes back to Cloudesley's point about lenity - if a legislative body wants to criminalize something, they better do it clearly.

The Triple-G types (government is the good guy) could imagine prosecuting an abortion protestor under RICO or eminent domain to seize land to at least get an idea of why some of us are squeemish about expanding jurisdiction like Doc Ock's fusion experiment in Spider Man II.

John O'Connor said...

I don't think courts typically expand their jurisdiction out of a sense that their mission is to punish the guilty. I think it usually is a combination of two things:

1. Sometimes, it's just easier to proceed with a case without stopping ansd considering whether you are in facft the correct court in which the claim should be brought. I was going to call it a sort of judicial laziness, but that's not quite right ebcause it often involves the corut doing more work than if it had considered and possibly bounced the case on jurisdiction. Maybe the better term is judicial intellectual laziness.

2. I think most often a court expands its jurisdiction when the court believes that notions of justice are served by taking a case and granting relief that is just. This can be a sense that no other court can, or will, provide efficient moral justice in a particular situation. I think this sometimes motivates the jurisdiction-expanding propensities of military courts -- a sense that if the court grants no relief, no releif will be forthcoming elsewhere. So courts do things like interfere in NJPs or summary courts-martial out of a sense that "it's us or nothing."

I honestly don't think there is an ideological one-sidedness to courts' tendencies to expend their jurisdiction, or at least not usually. That really doesn't make it more defensible, at least in my opinion, but I don't think there's an ideological axe being gropund in most cases.

Cloudesley Shovell said...

Last anon and JO'C--

Excellent points. I like your viewpoints better than my slightly rash comment. (Me? Rash? Don't be Scilly!)

Fakirs Canada said...

I can see two ways of addressing this if it is in fact found that the MEJA does not apply to the status of the Blackwater guards:
1. the moral aspect: if the situation was reversed, and the crime happened on American soil, perpetuated by civilian contractors to a foreign power's dept of state - what would the U.S. DOJ be thinking would be an appropriate response by the foreign power? I suspect there would be no debate about the applicability then of the foreign power's legislation. No, the U.S. DOJ would be saying "the crime happened on American soil, the individuals concerned do not enjoy any applicable immunity from prosecution - so hand them over to us right now.
2. Failing the use of the moral,a hearing will be held in a federal court to determine the breadth of applicability of the 2005 amendment to contractors who "support the mission of the DOD." If I had to wager on the outcome, I'd bet that the court is going to decide that "support for the mission of the DOD" is too broad of a definition of what constitutes a contractor under the MEJA. Not that any of this matters to the victims - because no matter what the U.S. does, short of handing over the guards to the Iraqi government, it's going to look as if the U.S. is trying to protect the guards from justice and acting to interfere in the course of justice in Iraq.