Criminal Trials of Blackwater Contractors

Chapter 8 – The Queen’s Croquet-Ground

Rewind

We have been looking at security contractor / mercenary (your choice) accountability via the case of an Air Force shooting at Manas Air Base and the Blackwater Christmas Eve shooting in Baghdad. Part 1 of this series discussed CPA Order 17 “absolute immunity,” while part 2 considered the UCMJ. This week, we stick with our two test cases and tackle “regular” criminal prosecutions under U.S. law.

For those with ADHD so intense that you can’t make it through this post, the bottom line is: Changes to MEJA aren’t needed to send either of these shooters to Oz. While the rest of us analyze, you can ... hey look at that shiny thing over there!

Conventional Wisdom

There are frequently two levels of analysis on the issue of criminal liability for contractors.

The first consists of standard-issue soundbites that contractors operate in “a legal no-man’s land, under no authoritative jurisdiction from any US or international law,” or as Mr. Scahill puts it “they operate in a climate of total impunity. There is no effective law that governs these mercenary forces in Iraq.” Even Congressmen pile on the hyperbole bus, charging “there’s zero accountability.”

There is as much truth there as in every story beginning, “I never thought this would happen to me. I am a senior at a small college in the Midwest …”

Anyway, the second level of analysis goes somewhat beyond sweeping diatribe, showing an understanding of the shortcomings in the UCMJ and the Military Extraterratorial Jurisdiction Act, or MEJA. But even at this ‘second level,’ the accountability issue is often cast as UCMJ vs. MEJA, with the implication being MEJA is the only way to prosecute overseas crimes.

That’s another urban fable.

Power From The People

If things are working as designed, U.S. federal courts have only that power granted to them by the Constitution and the Congress. This means federal criminal courts can try only those cases they have been granted the authority (i.e., jurisdiction) to hear. The grant can come in two flavors—either the crime to be prosecuted must have been created based on a constitutional grant of authority, or the crime must have been committed on federal territory (DC, national parks, federal courthouses, etc.).

In the first instance, jurisdiction exists because it’s inherent (e.g., tax evasion). In the second, territorial jurisdiction exists because of where the crime took place.

This regime is largely transparent because most crimes of interest take place inside the United States and, if not local matters, are swept up by the Commerce Clause, which can seem to give the modern federal government the power to do almost anything. That does not make the restrictions any less real.

When crimes take place outside the territorial U.S., and the domestic Commerce Clause connection is gone, the restrictions become critical. Then, the statute must provide jurisdiction, or there must be some territorial jurisdiction.

MEJA? We Don’t Need No Stinkin’ MEJA

Contrary to the common refrain, there are a number of stout criminal statutes that provide for federal court jurisdiction worldwide. The only real question is: What conduct do you want to punish? Here is a random sampling:

War Crime Act (18 U.S.C. § 2441) – provides for criminal trial if either the victim or the perpetrator is a U.S. citizen, with punishments up to and including the death penalty. Crimes under this Act include torture, cruel or inhumane treatment (including degrading treatment), murder, mutilation or maiming, intentionally causing serious bodily harm, rape, sexual assault or abuse, and hostage-taking, as well as conspiring to do any of these things. Federal courts have jurisdiction under this Act without reference to MEJA.

Anti-Torture Statute (18 U.S.C. § 2340A) – implements the UN Convention Against Torture by providing for federal criminal trial if perpetrator is a U.S. citizen or is ever found in the U.S. Punishments include death penalty. Statute covers conspiring and, again, there is federal court jurisdiction without reliance on MEJA.

Genocide Statute (18 U.S.C. § 1091) – grounds for massive fines and punishment up to death for a U.S. citizen who engages in or incites genocide anywhere in the world.

PROTECT Act (18 U.S.C. § 2423) – provides up to 30-year sentences for U.S. citizens engaging in illicit sexual contact overseas with anyone whatsoever under 16, and with anyone under 18 on a ‘commercial’ basis. MEJA not involved, statute itself provides jurisdiction.

Walker Act (18 U.S.C. § 960) – prohibits U.S.-based financing, initiation or conduct of any military action against any nation with which the United States is at peace and provides for fine and imprisonment.

So much for Mr. Scahill’s oft-repeated claim: “As one U.S. Congressmember observed, in strictly military terms, Blackwater could overthrow many of the world’s governments.” (Never mind that the Keystone Cops—or a half-dozen good-sized Girl Scouts for that matter—could overthrow many of the world’s governments.)

Another section in that same chapter (18 U.S.C. § 956) outlaws conspiracies to commit murder, kidnapping, or intentional injury or damage abroad—punishable by up to life.

Is the worry that contractors will harm U.S. military personnel, government employees, or other contractors?

Then, regardless of “where in the world the crime occurs, or the nationality of the offender or the means used, it is a federal crime to kill, beat, or kidnap … members of the U.S. diplomatic corps, any other federal officer or employee including members of the armed forces (or anyone assisting them) because of or during the performance of their duties.” (Congressional Research Service, listing 18 U.S.C. §§ 111, 351, 1114, 1201, 1751)

These laws should cover the majority of potential contractor job-related crimes, and given these, much of the hysteria over lack of laws appears to be more agenda-driven than well founded. (which is not to say that effective enforcement is taking place—we’ll get to that later.)

ET: The Extraterritorial

The “worldwide jurisdiction” statutes listed above are largely the exception to the rule. Generally speaking, a court only has jurisdiction over crimes that took place in the geographic area in which it sits.

Assuming, however, that imprisonment under the above statutes for things like murder, torture, and child rape is not sufficient to deal with these contractor types, let’s look at alternative sources of jurisdiction so that the entire body of federal criminal law (somewhere between 4000 and 10,000 individual crimes—no one is really sure) can come in to play.

After all, whatever would we do if there was no power of overseas enforcement for federal crimes such as: disrupting a rodeo (Lacey Act, 18 U.S.C. § 43); improperly using the image of Smokey Bear (18 U.S.C. § 711); or the old standby, prematurely removing a mattress tag (Flammable Fabrics Act, 15 U.S.C. § 1196). Oy, man’s inhumanity to man.

So, if you are a federal government and your territorial jurisdiction (power over federal property) is not sufficient, what to do? Simple, pass a statute giving yourself some extraterritorial jurisdiction!

The thing is, extraterritorial jurisdiction existed long before the Military Extraterritorial Jurisdiction Act. Section 7 of the federal criminal code identifies a whole laundry list of places as being within the “Special maritime and territorial jurisdiction of the United States.” You want to try someone for crimes at an embassy? On a U.S.-licensed airplane? On a cruise ship; the Great Lakes; an overseas fort; a rock containing deposits of guano?? Section 7 is your huckleberry.

Note that federal jurisdiction exists under Section 7 for crimes on overseas military and diplomatic facilities, without reference to MEJA. Not exactly in keeping with the myth.

In fact, one of the more high-profile post-9/11 contractor convictions was based on Section 7, not MEJA. The much-maligned PATRIOT Act broadened Section 7 to allow prosecution of civilian contractors for crimes not just on U.S. diplomatic and military posts, but those committed anyplace “appurtenant or ancillary” to them. Under this authority, a CIA contractor was convicted of assault and sentenced to more than eight years in prison in connection with beating a detainee who later died.

So What Does MEJA Add?

As court-martial jurisdiction over civilians was eroded by court decisions, a supplement to Section 7 to ensure federal court jurisdiction became of interest. After 40 years of indecision, that update finally became reality in 2000, and its name was MEJA.

MEJA made it an independent federal crime to engage in felonious conduct if the accused was “employed by or accompanying the Armed Forces outside the United States.” In other words, it created worldwide jurisdiction for any felony by a DoD contractor. So, for example, there is jurisdiction on-base under Section 7, and in off-base housing under MEJA.

The problem, as previously discussed in connection with the flaws inherent in using the UCMJ for contractor punishment, is that not all contractors are DoD. This came to a head in connection with the Abu Ghraib debacle, when the accused were working for the Department of the Interior.

Accordingly, MEJA was modified in 2005 to cover contractors for “any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas.”

A nice change, to be sure, but once again in the category of who couldn’t drive a truck through that, what about overseas contractors who are not supporting a DoD mission?

That would be one of several reasons there is a whole flotilla of MEJA amendments drifting around Capitol Hill.

Even without another amendment, however, MEJA brings the entire myriad of federal criminal statutes to bear on the majority of contractors worldwide. In the interest of thorough analysis of contractor accountability, one in particular bears mention:

The Victims of Trafficking and Violence Protection Act (18 U.S.C. §§ 1589 to 1594) – creates felony criminal offenses to outlaw forced labor, human trafficking, sex trafficking, peonage, slavery, involuntary servitude, and forced labor (such as by ID confiscation).

The statutes of interest to our Manas airman and the Blackwater armorer, though, would be garden-variety domestic crimes that have been federalized, such as Murder (18 U.S.C. § 1111) or Manslaughter (18 U.S.C. § 1112),

Who Goes To Jail Here?

Certainly one of the top five Jesse Jackson quotes of all time would have to be the claim that “imprisonment turns the state into a gay dungeon-master.” So if we want to know which shooter should be fitted for leather chaps, the answer is … both. (Again, setting aside all that persnickety due process stuff).

Although we the public are not privy to all the details, both of these incidents appear to fall under MEJA jurisdiction. Even if they do not, however, they should each by covered by, at a minimum, the War Crimes Act. Thus my advice last time about a firm handshake.

The fly in this ointment? Not only has MEJA been used extremely sparingly, but the War Crimes Act has apparently never been used.

And therein lies the most serious problem with contractor accountability.

The cry of rabid and strident mercenary-bashing firebrands is that for any potential contractor misdeed—from mass murder to jaywalking—there is but one solution … Off With Their Heads! But, as industry mouthpiece Doug Brooks amusingly notes, when the government is unwilling or fails to take action, what should we expect the PSC to do about it, take the individual out back and hang ‘em??

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Next time, we’ll look why the government is failing to act, and potential solutions.