Blackwater Christmas Eve Shooting and Immunity

Chapter 6 - Pig and Pepper

Gunned Down in the Street

December, 2006. For most in this ancient land, the day starts like any other. People eating breakfast, saying prayers, greeting friends, going to work, if you are lucky enough to have it. Since the fall of the former government, widespread corruption coupled with occasional murder of government officials has not helped an economy that was rocky, at best, to begin with.

Those who can get jobs with reasonable pay are glad to have them, even if it means working at a base occupied by the Americans. One of those fortunate few is a local national we’ll call “Alex.” The U.S. presence has been a fractious issue among the Muslim populace for several years now, and there is no shortage of people who are more than ready for the Yanks to leave. To Alex’s way of thinking, though, while they are somewhat intimidating and brusque, they are otherwise unremarkable. He is happy merely to have the work.

As is the nature of the current-day United States overseas presence, the expatriate population in-country is an ad-hoc brew of diplomatic representatives, adventurous businessmen, uniformed military, and private contractors. Among them is one member of the security force we’ll call “Zach.” He is not that different from many of the gringos here—some military experience prior to this mission, probably looking mainly to make it through this deployment and get back home.

Alex and Zach do not know it this cool December morning, but today one of them will die at the hand of the other.

The facts of the incident are not much disputed. You may already know them. A security checkpoint. An American “security professional” far from home, and a local national just trying to do his job. One brandishes a weapon, one draws his sidearm. When all is said and done, Zach has used his government-issued pistol to shoot Alex twice in the chest, killing him deader than Elvis.

As they invariably do, the incident turns up in the media. There are cries of “Murder!” and arguments that it was self-defense. Zach is quietly taken out of country and returned to the States. There are public statements that the incident is being investigated by U.S. authorities. There are demands from the host nation that Zach be subject to local justice, however much that commodity may be in supply.

Zach, however, is immune from local prosecution under a policy put in place some time before.

Months later, there still has been no U.S. proceeding.

Clearly, you must agree, a horrible miscarriage of justice and another example of THESE BLOODTHIRSTY MERCENARIES CAUSING A BLACK EYE FOR THE UNITED STATES WITH THEIR WILD WEST MENTALITY AND FECKLESS COWBOY CONDUCT!

Except. Oh, except.

Except that this was not Baghdad. This was Manas Air Base, near Bishkek, Kyrgystan.

Except that “Alex” was not an Iraqi bodyguard, he was a Kyrgyz truck driver.

Except that “Zach” is a not a Blackwater hired gun, he is a U.S. Air Force airman.

A Tale of Two Shootings

There was of course, another shooting later that same December, one that is obligatorily trotted out every time a fire-eater is warming up the “zero accountability” and “thugs-gone-wild” drums. An off-duty Blackwater contractor shot an Iraqi on Christmas Eve. The two incidents have key differences, but they also have such striking similarity that they can provide some interesting insights into the PSC debate,

In keeping with the Rabbit’s goal of documenting every factual assertion as best we can, you can find details on the Manas incident here, here, here, and here, and details on Kyrgystan generally here.

The Christmas Eve incident is the subject of an ongoing FBI criminal investigation, so the facts on it are less easy to document. The story, as it circulated through the Green Zone and was later reported both in the media and to Congress, is basically as follows:

A U.S. Army veteran we’ll call “John Doe” is working as an armorer for Blackwater at its camp in Baghdad. On Christmas Eve, John attends a private party in the Green Zone and has several drinks. He leaves the party and shortly before midnight, while walking through an area known as “Little Venice,” is confronted by Iraqi armed guard “Raheem.” The two reportedly exchange gunfire. John fires his government-issued pistol, hitting Raheem three (or more) times in the chest and killing him deader than, well, deader than a bad metaphor.

John then shows up at the Liberty Pool complex and wanders around this Saddam-built, U.S.-operated recreation facility telling people he just shot an Iraqi in self-defense—but no one believes him because he appears drunk. Eventually, he is taken into custody by International Zone Police, questioned by U.S. Army CID and FBI, and tested for, at least, blood alcohol content. Apparently he is then turned over to Blackwater, which is directed by the U.S. government to remove him from Iraq. The incident is currently being investigated by the Justice Department and the FBI.

Among other sources, reporting of these events can be found here, here, here, here, and here. The details reported in the different sources vary slightly—e.g., John fired an entire clip, John fired ten rounds and hit with ten, fired ten and hit with three, fired only the three rounds that hit, etc.—but the basic sequence of events is sufficiently established for an accountability discussion.

In each shooting, you have an individual who signed a contract to provide their services in support of (choose your label) our ‘national security and support for democracy’ or our ‘imperialistic hegemony and cultural oppression.’ Each had taken the same oath of loyalty to the United States, and each was deployed overseas in support of U.S. operations in a predominately Muslim nation let us say not entirely pleased about an American presence on its soil.

Our Noble Military Heroes

In the case of the military airman, he is governed by the Uniform Code of Military Justice, which covers his conduct day and night, 24/7 for his military career, whether he is on- or off-duty. There is a charge in the Code for just about everything, from contemptuous words about politicians to dueling. And if there’s no specific section applicable, you just throw the guy under the Article 134 bus, which is more or less a blank check. If found guilty by a military court (a/k/a court-martial), the accused faces anything from a fine to the death penalty.

When the service member is overseas, however, there is a potential problem: What about the local justice system, civil and criminal? To partially shield its forces, the U.S. normally enters a “Status of Forces Agreement” or “SoFA” with the host nation, including Kyrgyzstan. Under most SoFAs, the U.S. military person can be liable under local laws except when a criminal offense is committed in carrying out official duty—then the individual is primarily subject to U.S. law. (And you thought the only thing under most sofas was loose change and dust bunnies).

How does the status of the Blackwater armorer compare?

Those Scary Mercenary People

The rallying cry of those seeking to polarize the debate, from random blogs to sitting Congressmen, is that the filthy mercenary committed “murder” which of course the criminal PSC abetted by sneaking him out of Iraq. Setting aside the worrisome fact that these individuals are perfectly happy ordaining themselves judge and jury and declaring without trial that the killing was murder, the positions of the private security professional (or bloodthirsty mercenary scum, as you will) and the military service member are remarkably similar—the conduct of each is subject to U.S. law, with only partial immunity from local prosecution.

I realize full well that this is contrary to effectively every assertion you have ever read regarding immunity and the notorious “CPA Order 17,” so we’ll closely examine Order 17 to see if it in fact puts John above Iraqi law, then we’ll consider whether his future may include appointment as the chief salad tosser in the Big House.

The Urban Legend

The standard hyperbole on CPA Order 17 normally goes like this Johann Hari statement:

As he scurried out the door in 2004, Paul Bremer—the first US viceroy to Iraq—issued Order 17, which exempted all mercenaries operating in the country from having to obey the law.

Or, as the penultimate Blackwater analyst Jeremy Scahill describes the “edict” that is Order 17:

It immunized contractors from prosecution in Iraq which, today, is like the Wild West, full of roaming Iraqi death squads and scores of unaccountable, heavily-armed mercenaries, ex-military men from around the world, working for the occupation.

And here is how Mr. Scahill’s helpful comments are reported in the Islamic press:

Paul Bremer, Bush’s envoy in Iraq during the first year of the occupation, issued a decree on June 28, 2004 granting immunity to Blackwater and other military “contractors” from prosecution for war crimes.

We opt not to join in this frenzy of uninformed assertions and hyperbole. Join us in our boycott. Fight the power.

So, let’s look at what Order 17 actually says, and then consider whether it is closer to a SoFA-type situation, or is genuinely Mr. Scahill’s license “to Blackwater personnel for any murders or other crimes they commit on Iraqi soil.”

What Does It Really Say?

We’d like to be able to defend the quoted assertions above with the pithy Churchill quote: "The length of this document defends it well against the risk of its being read." Given that the Order is just 16 pages long, however, with only one page devoted to contractors, it is difficult to justify these misstatements. First of all, paragraph 4) of Section 4 explicitly provides that as a general rule "all Contractors shall respect relevant Iraqi laws.” This is the polar opposite of the Section 2, paragraph 1) general rule for national military forces, which is that they truly “shall be immune from Iraqi legal process.”

Operations in a war zone will necessarily breach certain peacetime statues (everything from speeding to weapons possession), so the Order does allow a limited immunity for contractors:

Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.

In other words, if the government contract controlling the individual's services does not require the act in question, then Order 17 does not give immunity for that act. Unlike his military counterpart, the contractor in Iraq is immune from Iraqi civil or criminal liability only when the act occurs as a necessary part of carrying out the official duty. Garden-variety criminal acts (a robbery, rape or bar fight) or full-on war crimes are, by definition, not part of the “terms and conditions” of the government contract.

Perhaps most tellingly, the ‘shocking’ and ‘unprecedented’ Order 17 rule that the U.S. shall have jurisdiction over contractor acts in the line of duty is similar to the contractor provisions of SoFAs in other nations. For example, the NATO SoFA provides in Article VII that the U.S. "shall have the primary right to exercise jurisdiction" over its contractors (defined there as the “civilian component”) for "offences arising out of any act or omission done in the performance of official duty." The two structures are not identical, but Order 17 is hardly the stunning departure from common practice often touted.

In short, if a private security contractor performing gate guard duties in Iraq shoots someone, then like the U.S. airman (or the contractor) in Kyrgyzstan, it is an issue to be resolved under U.S. rather than local law. On the other hand, the Blackwater contractor in the Christmas Even incident was off duty, and not performing any contract function. His contractor status is irrelevant and he is treated as just another accused foreigner in Iraq. He enjoys no immunity from Iraqi prosecution. You read correctly--"John" is fully subject to Iraqi law.

An interesting question, then, is:

Why Hasn’t he Been Extradited Back to Iraq?

Independent verification is our goal here at the Rabbit and, unfortunately, we have pretty much reached the end of what can be documented. We can tell you that the PSC grapevine says there is no extradition because the Iraqis don’t want him back. Verifying that, just as proving any negative, is difficult at best. There is, however, one interesting indicator to consider.

Returning to Kyrgyzstan, we see that the host nation had no difficulty in making its demands known: The Kyrgyz parliament passed a resolution regarding the airman, the Interior Ministry filed criminal charges, the Prosecutor-General’s Office and Members of Parliament have issued public statements, the Foreign Ministry submitted queries to the U.S., and the Kyrgyz President made a public vow to personally oversee a criminal investigation into the incident.

From the corresponding sources in Iraq, we have heard … nothing. And this when, unlike the Kyrgyzs who have only secondary jurisdiction, the Iraqis have primary jurisdiction and demanding local trial is clearly their prerogative. From this one can infer many things: that they have more pressing matters to worry about such as mass beheadings, that they prefer it be handled in the U.S. system, that they have determined it was self-defense, that they are too busy adapting Muhammed al-Sahaf statements to the current Iraq situation, that they are pumped full of low-grade monkey tranquilizers, etc. You will have to make your own determination there.

Conclusion

These two case studies are helpful in analyzing the reach of CPA Order 17, but the principles discussed apply to all military and contractor acts. The degree to which private security contractors in Iraq are subject to local legal accountability is highly similar to contractor accountability in other countries and to that of their similarly situated military counterparts in other countries. Specifically, Order 17 does nothing to affect liability under U.S. law. It provides only limited immunity to contractors, and then only when the act in question was required by their government contract. Notably, uniformed military—unlike contractors—do have absolute immunity in Iraq. (Further, this limited contractor immunity in Iraq stands in stark contrast to the absolute immunity enjoyed by contractors in Bosnia under Annex 1A of the Dayton Agreement. See here at page 131.)

With regard to the specific Christmas Eve incident that is a favored firebrand whipping boy, the ‘powerless Iraqis facing the Order 17 license to murder’ spiel is a classic Wonderland argument. The individual in question is fully subject to Iraqi criminal law, but the Iraqis apparently have a complete lack of interest in proceeding. “But I don’t want to go among mad people,” Alice remarked. “Oh, you can’t help that,” said the Cat: “we’re all mad here.”

The incendiaries of various political stripes are so vehement in their shrill declarations of “zero accountability” that I fully expect the PSC-accountability argument to be continuing while I am eating Alpo and wearing diapers in a seedy assisted living facility in 2044. Nonetheless, in part two on accountability we will continue to support critical thinking by looking at the facts underlying potential U.S. jail time for the Blackwater armorer.

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Next week: Court-Martial!