Thursday, January 7, 2010

When he walked into the operations center during the Nisour Square shootings in Baghdad, the first thing a State Department employee heard was a radio call from the Raven 23 convoy: “Contact, contact, contact! We are taking fire from insurgents and Iraqi police.” He wonders why he never hears about that in media reports about the incident.

The manslaughter charges against five Blackwater guards were dropped with a stinging rebuke from the judge to the investigators and prosecutors who brought them. But that was for procedural and legal mistakes, not for a recognition that what these men did was not murder. That recognition is long overdue. The shootout at Nisour Square in September 2007 was a horrible tragedy and innocents were killed, but it was not a crime. The U.S. and Iraqi governments conducted investigations that claimed there was no justification for deadly force. Both investigations ignore clear and compelling proof that the guards opened fire because of a perceived threat and continued in response to incoming fire at the convoy.

The team involved in the incident had been ambushed on three of the previous four days, and their threat perception was understandably heightened. In determining whether deadly force is authorized, that perception of a threat is what matters, not whether it actually was. When the Raven 23 convoy entered Nisour Square, they stopped all traffic, except a white sedan traveling the wrong way. This vehicle continued toward the convoy despite verbal warnings, hand signals and even water bottles thrown at it. When it got too close, it was fired upon but it still kept moving closer. A nearby Iraqi policeman responded and attempted to assist the passenger, but as the vehicle continued to approach it appeared to the guards that the policeman was pushing the car. This confirmed their suspicion that the car was a vehicle bomb and they fired upon it killing both occupants and the policeman.

At this point other Iraqi police opened fire on support of their comrade who had just been killed. It was a common tactic for insurgents to wear Iraqi police or army uniforms so that didn’t surprise the team. They radioed to the operations center that they were under attack and taking fire from uniformed police and civilians. State Department personnel hearing these calls live were convinced the team was being ambushed. The team continued to identify sources of incoming fire and attempted to suppress them. One of the convoy vehicles was so heavily damaged that they had to tow it out, and this extended their time in the area. When the vehicles returned, State employees saw the damaged vehicles and noted they had been hit by small arms fire. Although two military personnel sent to the location failed to note any evidence of a two-way firefight, the State Department officer tasked with investigating it found large amounts of AK-47 brass indicating fire directed at the convoy.

The initial assessment that the white sedan represented a threat was wrong, but made in good faith and consequently, the decision to fire when it failed to stop was justified. Once the Iraqis began firing, all subsequent actions were proper as well. It was a dreadful loss of life, but the Iraqis were firing, too, and bear responsibility for some of this. All of the information just detailed was available to investigators and yet the guards were still charged. That leads to the question of why.

The incident created a huge reaction among the Iraqi people and it was widely reported as a massacre in media accounts. The Iraqi government wanted to prosecute the men and put considerable pressure on the United States to turn them over. Additionally, negotiations were under way for a security agreement between the countries and it seems plausible to believe the United States agreed to prosecute the men to gain Iraqi acceptance of the pact. This is supported by the fact that the Military Extraterritorial Jurisdiction Act used to charge them is specifically applicable to defense contractors and these guards were working for the State Department. The judges report noted that large amounts of exculpatory evidence were not shown to the grand jury that indicted the men along with numerous other major violations of the men’s rights, including the use of immunized statements they were required to give directly after the incident.

The charges have been dropped, but these individuals deserve to be cleared of the impression that they purposefully slaughtered innocents. The men made split-second life and death decisions on this and many other occasions, and they did so following the rules and based on their honest perceptions of threats they faced. Since the shooting, they have been subjected to what appears like a politically-motivated witch hunt. It is time for the government to be satisfied with the security agreement it signed with Iraq and leave these men alone.

Jim Hanson was a weapons sergeant in 1st Special Forces Group and now serves as director of the Warrior Legacy Institute.

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