Commentary

More Bad News for Blackwater

By David Isenberg
This article appeared in the Huffington Post on January 11, 2010.

There are a few things to keep in mind regarding last week’s news that two private security contractors who worked in Afghanistan had been charged with crimes including second-degree murder, attempted murder, and firearms offenses while working as contractors for the Defense Department in Afghanistan.

The 13-count indictment , unsealed on Jan 7 , alleges that on May 5, 2009, in Kabul, Afghanistan, Justin Cannon, 27, of Corpus Christi, Texas, and Christopher Drotleff, 29, of Virginia Beach, Va., shot and killed two Afghanistan nationals, Rahib Mirza Mohammad and Romal Mohammad Naiem, and wounded a third, Fareed Haji Ahmad.

The two contractors, who were taken into custody Thursday in Afghanistan, were training Afghan forces as Defense Department contractors.

The indictment alleges that at the time of the shootings, Cannon and Drotleff were DOD contractors employed by Paravant LLC, which is a subsidiary of Xe (formerly known as Blackwater Worldwide). Paravant, in turn, was employed as a subcontractor to Raytheon Technical Services Company, as part of a Defense Department Warfighter contract. According to the indictment Cannon and Drotleff provided training to the Afghan National Army for the Islamic Republic of Afghanistan in the use and maintenance of weapons and weapons systems.

For Xe the timing could not have been worse as it came the day after it was announced that a group of Iraqis, including those from the Nisoor Square shootings in Baghdad in September 2007, suing Blackwater and affiliates in a U.S. court have settled their claims. The Iraqis alleged the company’s guards killed Iraqis in a series of shootings dating to 2006 and cited a “culture of lawlessness” at the company. The settlement’s terms aren’t public.

Although this morning the Los Angeles Times reported that several Nisoor Square victims alleged Sunday that they were coerced into reaching settlements, and they demanded that the Iraqi government intervene to have the agreements nullified.

The Iraqis said they were pressured by their own attorneys into accepting what they now believe are inadequate settlements because they were told the company was about to file for bankruptcy, that its chairman was going to be arrested and that the U.S. government was about to confiscate all of the firm’s assets. This would be their last chance to get any compensation, the victims said they were told.

When criminal charges against the guards were dismissed by a U.S. federal judge on Dec. 31, the Iraqis concluded that they had been duped and that Xe was not in the kind of legal and financial trouble they had been led to believe.

Further, this latest indictment comes at a time when Xe is in the running for a Pentagon contract potentially worth $1 billion to train Afghanistan’s troubled national police force, according to an Associated Press report.

The Afghan national police training contract is expected to be awarded soon and Xe is among five companies eligible to compete.

In light of the recent decision by Judge Ricardo Urbina to dismiss charges against five Blackwater contractors accused of killing Iraqi civilians in the September 2007 incident at Nisoor Square in Baghdad, Iraq, because the Justice Department built their case around testimony given by the contractors under grants of immunity it is worth reviewing contractor’s legal status.

As a Dec. 22, 2009 Congressional Research Service reported noted, contractors working for the U.S. military, the State Department, or other government agencies during contingency operation in Iraq and Afghanistan are non-combatants who have no combat immunity under international law if they engage in hostilities, and whose conduct may be attributable to the United States. Contractors who commit crimes in Iraq or Afghanistan are subject to U.S. prosecution under criminal statutes that apply extraterritorially or within the special maritime and territorial jurisdiction of the United States, or by means of the Military Extraterritorial Jurisdiction Act (MEJA).

Section 552 of the National Defense Authorization Act for FY2007 (P.L. 109-364) makes military contractors supporting the Armed Forces in Iraq subject to court-martial jurisdiction, although the military trial of a civilian contractor would likely be subject to legal challenge on constitutional grounds.

Despite congressional efforts to expand court-martial jurisdiction and jurisdiction under MEJA, some contractors may remain outside the jurisdiction of U.S. courts, civil or military, for improper conduct in Iraq or Afghanistan.

Contractors to the coalition forces in Iraq and Afghanistan operate under three levels of legal authority: (1) the international order of the laws and usages of war, resolutions of the United Nations Security Council, and relevant treaties; (2) U.S. law; and (3) the domestic law of the host countries.

Under the authority of international law, contractors and other civilians working with the military are civilian non-combatants whose conduct may be attributable to the United States or may implicate the duty to promote the welfare and security of the local population.

The courts of Iraq and Afghanistan have jurisdiction to prosecute them pursuant to applicable status of forces agreements. Some contractors, particularly U.S. nationals, may be prosecuted in U.S. federal courts or military courts under certain circumstances.

The fact that there is an indictment at all is in itself significant. In the past when incidents like this have taken place a company will terminate the contracts of its contractors and say that is they can legally do, which is true, and that it is the responsibility of the government to take any further action.

And indeed Paravant has terminated contracts with the four men “for failure to comply with the terms of their contract.”

It also bears noting that the United States and the transitional government of Afghanistan concluded an agreement in 2002 regarding the status of U.S. military and DOD civilian personnel in Afghanistan. Such personnel are to be accorded “a status equivalent to that accorded to the administrative and technical staff” of the U.S. Embassy under the Vienna Convention on Diplomatic Relations of 1961.

Accordingly, covered U.S. personnel are immune from criminal prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. The agreement, however, does not appear to provide immunity for contractor personnel.

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.