George W. Bush and Blackwater

Shooting in a Legal Vacuum

U.S. Judge Ricardo Urbina must have known that he would be making a lot of enemies in his own government, in a large portion of the Islamic world, and among the public in general. Earlier this month, he dismissed all charges against five mercenaries who were to stand trial for firing wildly into a crowded Baghdad intersection in the fall of 2007, killing 14 civilians.

It is only known that employees of the Blackwater security firm opened fire without reason and continued their deadly fire, killing fourteen, and now they will not have to stand trial because Judge Urbina found procedural errors committed by the prosecution so serious that the men were ordered released. Meanwhile, in Baghdad, the families of the dead and injured continue to fight for compensation.

In Iraq and elsewhere, those who complain that Americans in other countries can do as they please without being held accountable have again been proven correct.

Yet Judge Urbina’s 90-page decision deserves to be read; it is – paradoxically – a fervent plea for the rule of law in times of war and anti-terrorist action. And above all, it is a warning of what can happen when governments privatize war, delegate security to private contractors, and reduce it all to the level where heavily armed mercenaries are a law unto themselves.

Immunity for Mercenaries

Urbina found that the cause of the botched trial was a State Department directive during the Bush administration governing private security firms such as Blackwater. According to this so-called “Hunter Memorandum,” all mercenary troops were required to file a report after any incident in which shots were fired.

The deal was this: Mercenaries were required to file reports or lose their jobs. As soon as they filed, their statements were automatically excluded from any future legal proceedings against them. That was clearly spelled out on the report forms the Blackwater employees filed in the wake of those fatal Baghdad shootings, and they were also briefed on that point when they first arrived in Iraq.

After the bloody incident on 16 September 2007 in Baghdad, the members of the Blackwater team, designated Raven-23, were interrogated by U.S. authorities. The mercenaries stated that a suspicious white car approached them at excessive speed. Since they suspected it might be armed with explosives, they opened fire on it in self-defense.

Within a few days, word of that testimony was leaked to the media along with the information that the United States government had already promised the Blackwater mercenaries some sort of immunity from prosecution. The American public as well as the U.S. Congress was outraged by that development and the Bush administration began legal proceedings against the Blackwater personnel.

An investigation confirmed that they had fired apparently wildly and at random into the crowd on the street. As early as fall of that year, government lawyers were warning in vain about two important precedents: First, U.S. law does not permit anyone to testify against himself when doing so could endanger his continued employment. Second, if he does testify, the prosecution is obligated to prove that its case is not based on those statements.

Government Shysters

Judge Urbina subsequently ruled that the prosecution’s entire case was based on that “forbidden fruit.” Investigators could hardly deny the fact that the Blackwater employees’ testimony had been widely reported in the media. All witness testimony was based on their statements, as well.

The government lawyers maintained, however, that most of mercenaries had claimed self-defense and were therefore not incriminating themselves. Urbina disagreed, saying they still gave details about where they stood and who shot at whom and when. All that had made it into the testimony. Urbina found that the government had “completely failed” to incriminate the mercenaries without using their own testimonies against them.

Urbina, 63, was appointed to the federal bench by former President Bill Clinton, thus can hardly be accused of being a hardliner or in bed with the Bush administration which had awarded Blackwater so many contracts. Urbina himself has often decided cases in favor of Guantanamo prisoners.

In the Blackwater case, Urbina’s decision might seem scandalous because he resorted to a fine-tooth comb approach in deciphering the U.S. Constitution to protect those who had killed innocent people in Iraq. Urbina does not appear to doubt for a moment that the mercenaries committed manslaughter, but he was also “not prepared to arbitrarily excuse the reckless denial of constitutional rights by the government.”

The charge of injustice in the Blackwater case will also impact problems such as the closing of Guantanamo. These types of difficulties are bound to emerge when administrations such as that of George W. Bush play around with legal rights, granting them to some and withholding them from others. The American courts will be dealing with this for a long time to come.

Two more mercenaries employed by a Blackwater subsidiary were recently charged with suspicion of murder in Afghanistan. In addition to that, investigators are looking into charges that Blackwater has been involved in weapons smuggling and bribery in Iraq.

However, Blackwater, having renamed itself “Xe,” continues to vie for government contracts although they originally lost their license to operate in the wake of the Baghdad massacre. President Barack Obama has often been critical of using mercenaries, but he cannot afford to give them up. The bottom line is that mercenaries are simply cheaper than regular soldiers.