Commentary

Let Loose the Legal Beagles of War

Don’t look now but it is raining lawyers; or to be more precise, lawsuits. Just consider what has happened in the past two weeks.

There was a ruling on March 18 by the U.S. District Court in Virginia denying CACI’s motion to dismiss a case by four Iraqi plaintiffs alleging abuse at Abu Ghraib prison. This dates back to the original 2004 revelations made famous by the report of Maj. Gen. Antonio Taguba.

In this case federal district court judge Gerald Lee of the Eastern District of Virginia issued a significant ruling on the question of contractor immunity. Lee denied CACI’s motion to dismiss on three different theories of immunity. He found that the tort claims against CACI did not interfere with separation of powers doctrine and ruled that additional discovery was necessary to determine whether CACI’s actions were protected because of its role as a contractor for the U.S. military. “The parties must conduct discovery to determine whether the interrogations here constitute ‘combatant activities,’” the judge wrote.

CACI’s counsel, not surprisingly, said he has filed a notice of appeal with the U.S. Court of Appeals for the 4th Circuit. He also said that he and the plaintiffs’ counsel last month argued immunity issues before the U.S. Court of Appeals for the D.C. Circuit.

That appeal involves summary judgment rulings in two cases decided by D.C. federal district court judge James Robertson, who established a new test for the protection afforded contractors under the “combatant activity” exception, which pre-empts tort claims against the military.

Meanwhile, Burke O’Neil, the firm representing the plaintiffs, said that lawyers for Blackwater and KBR haven’t been asserting derivative sovereign immunity in recent motions to dismiss. According to Burke, “The industry tried to make a big push that this defense applied, but judges in federal and state benches say it doesn’t,” she told us. “Defense contractors are not immune for their misconduct in Iraq.”

Read that previous sentence again. If anybody was still harboring nostalgic illusions about the old days of the Iraqi Coalition Provisional Authority derived immunity, now is the time to let them die; especially since the new U.S.-Iraq Status of Forces Agreement took effect.

Meanwhile, on March 26-27 a group of injured civilians and families of Iraqis killed in two shootings in Baghdad by Blackwater, now Xe, contractors sued the company and founder Erik Prince in separate lawsuits filed in California federal court.

The lawsuits allege that several Blackwater defendants demonstrated “a pattern and practice of recklessness in the use of deadly force.”

The first case was brought by the family of Sa’ad Raheem Jarallah, a 53-year-old teacher at a technical institution in the city of Al Amara, who was killed by Blackwater personnel near Al Watahba Square while in Baghdad on school business on Sept. 9, 2007.

The second case involves the now infamous Sept. 16, 2007, Nisoor Square shootings that killed 17 people and resulted in criminal prosecutions by the U.S. Department of Justice against Blackwater personnel.

The 15 plaintiffs in that case include the estates of 12-year-old Qasim Mohamed Abbas Mahmoud, who was shot while riding in a car with his father, who also was killed, and his mother, who was injured. According to the complaint, “Xe-Blackwater created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company’s financial interests at the expense of innocent human life.”

The defendants are accused of committing war crimes, assault and battery, wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent hiring, training and supervision, and tortious spoliation of evidence. The complaint also includes allegations of drug use and coverups of illegal conduct by Xe-Blackwater personnel.

Aside from Prince and Xe, the defendants in both cases include various Prince-controlled entities such as The Prince Group, Falcon, Greystone Limited, Total Intelligence Solutions, EP Investments and Raven Development Group.

On March 28 Aaron Bridges Langston, an American employee of Kellogg Brown and Root, was sentenced to 26 months in prison for stabbing his Indian female colleague Gaddam Narayana in the throat on February 15, 2007, during their posting in Iraq.

Langston was the first U.S. contractor to be indicted under the Military Extraterritorial Jurisdiction Act of 2000. He certainly will not be the last.

Nor are these legal actions confined to particular nations. The U.N. Working Group on the use of mercenaries, which is currently engaged in the elaboration of new legal instruments for the regulation of activities of private military and security companies, is holding its sixth session at the United Nations in Geneva from March 30-April 3. It will hold its seventh session in New York from July 27-31.

Can any good come out of this? Possibly, if companies realize they must be held accountable to the mission and not just their bottom line nor be beholden exclusively to their principal. That may well mean closer integration in the future with regular military forces as well as other government agencies. It would also mean the attitude that Blackwater displayed in Iraq, i.e., caring only about the protection of their client under the Worldwide Personal Protective Services contract, would be a model to avoid. Acting that way did neither the U.S. government nor Blackwater much good in the end.

The bottom line is that if we truly believe that private military and security contractors are integral to U.S. government missions, which most policymakers seem to accept, then they must not only be protected but also held accountable and prosecuted just as soldiers, Marines, sailors and airmen are. Otherwise bad things will continue to happen.

U.S. Navy veteran David Isenberg is a military affairs analyst. He is an adjunct scholar with the Cato Institute and the author of the book, Shadow Force: Private Security Contractors in Iraq.