The Blackwater ‘hole’

‘They can get away with murder” has been the cry of critics of hiring private companies such as Blackwater to provide security for the U.S. military and diplomats in Iraq and other war zones. Now it looks as though the critics may be right -- and in the worst way.

Legal experts say the Blackwater contractors accused of killing 17 Iraqi civilians and wounding 24 others while guarding a State Department convoy in Baghdad in September cannot be prosecuted under either Iraqi or U.S. law -- even if an FBI investigation validates the Iraqi view that the contractors opened fire unprovoked. Secretary of State Condoleezza Rice, quizzed by a congressional committee last month, agreed that “there is a lacuna in our law about this. And even though this particular case . . . has been referred to the Department of Justice for further action, we believe that there is a hole.” What Rice didn’t say was that the State Department has been aware of that “hole” for at least two years and has rejected Pentagon suggestions to plug it by making security contractors subject to military law.

Why couldn’t offenders be prosecuted under existing U.S. law? U.S. military personnel who commit crimes abroad can be prosecuted under the Uniform Code of Military Justice or the War Crimes Act. The Pentagon says contractors working for the Department of Defense are also subject to military justice (though some experts believe that’s unconstitutional). But the Blackwater contractors worked for the State Department. The U.S. did prosecute CIA contractor David Passaro in the death of an Afghan detainee -- but it had jurisdiction only because the victim was beaten to death on a U.S. Army base. The Blackwater shootings occurred in downtown Baghdad.

So why couldn’t the Iraqis prosecute? First, the U.S. would have to hand over the contractors, but it has no extradition treaty with Iraq and, given its dim views of the status of Iraqi justice, no guarantee that the accused would get a fair trial. Second, L. Paul Bremer III, then head of the U.S. occupation, signed a now-infamous order specifically exempting armed security contractors from prosecution. The Iraqi Cabinet has introduced legislation revoking Bremer’s order. But even if parliament passes it, Article 19 of the Iraqi Constitution prohibits retroactive punishment for an act that wasn’t a crime when it was committed.

It is, of course, possible that some clever lawyer in Washington or Baghdad will devise a novel legal theory to get around these obstacles. Either government could decide that in such a politically charged case, mounting a prosecution that is eventually thrown out of court is better than not attempting to punish wrongdoers at all. Better yet, Congress could act now to start cleaning up the legal, political and moral mess that has been exposed by the Blackwater debacle.