- The Washington Times - Thursday, January 7, 2010

ANALYSIS/OPINION:

The dismissed case against five American security contractors charged with committing manslaughter in Iraq illustrates the complexities of fighting an enemy that chooses to wage war among civilians. Worse, it exposes the equally dirty battles conducted by government agencies against our own warriors when bureaucrats respond to political pressure.

In September 2007, 17 Iraqis were killed and 20 wounded in a shootout that took place in Nisour Square in Baghdad, the result of a tragic misunderstanding during a response to a car bombing. In December 2008, five security contractors employed by Blackwater Worldwide (now known as Xe) who took part in the incident were charged with manslaughter, attempted manslaughter and weapons violations. The prosecution claimed the contractors opened fire without provocation. The defense team said the men had acted in self-defense.

A year later, U.S. District Judge Ricardo Urbina dismissed the charges, ruling that the Justice Department violated the defendants’ constitutional rights by building their case using sworn statements given under a promise of immunity, and calling the government’s explanations “contradictory, unbelievable and lacking in credibility.”

As Jim Hanson explains on the preceding page, the case against Blackwater was suspect from the beginning. Key evidence that clarified the course of events and the state of mind of the defendants was ignored or suppressed. Revelations of the Justice Department’s mishandling of the case underscore its political nature.

The Nisour Square incident became an instant controversy worldwide. A November 2007 State Department internal report noted that, “since this issue hit, print and broadcast media have referred to Blackwater USA and its personnel as ‘mercenaries privatizing war, war-dogs, trigger happy shooters, soldiers of fortune, [and] guns-for-hire.’” The report noted that, “almost all global observers expressed anger that Blackwater - and other private security firms - can operate in a grey legal area as a ‘private army’ because … the U.S. does not have a formal Status of Forces Agreement [SOFA].” The incident became a cause celebre among President George W. Bush’s domestic critics who were eager to find another My Lai Massacre.

The Blackwater matter framed SOFA negotiations in 2008, particularly when discussion turned to criminal jurisdiction over contractors. Decree 17, issued in 2003 by U.S. Administrator in Iraq L. Paul Bremer under the auspices of the Coalition Provisional Authority, had given contractors immunity from Iraqi laws. Iraqis saw this as an infringement on their sovereignty that facilitated tragedies like that at Nisour Square. The draft SOFA agreement was hammered out in the summer and fall of 2008, while the Justice Department was preparing its charges against the contractors. The government of Iraq gave final approval to the agreement on Dec. 4; indictments were issued four days later; and Mr. Bush signed the SOFA the following week. The negotiation timeline suggested a quid pro quo.

In the long run, the United States gained nothing from trying to make an example of these men. American observers, whether or not they agree that the contractors acted in self-defense, see the case as a vindication of the process that protects the rights of the accused. But observes in the Middle East conclude the opposite. An editorial in Dubai’s Khaleej Times said “a denial of justice in the Blackwater case clearly suggests that a privileged few are above the law.” The lesson we draw from it is that war crimes are not limited to the battlefield.

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