Prosecuting Blackwater

New York Times ()

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More Info: Blackwater

Editorial
Published: November 16, 2007

A report in The Times this week says that the F.B.I. is reaching the same horrifying conclusion as the Iraqi authorities: that the deadly September shooting spree by Blackwater security guards in Baghdad was unjustified and violated the American government’s rules for the use of deadly force. The question is, what is the Bush administration going to do about it?

David Johnston and John M. Broder reported on Wednesday that federal investigators found no evidence to support claims by Blackwater officials that Iraqi civilians had fired on the guards. Investigators concluded that 3 of the 17 deaths may have been justified because the guards might have perceived an imminent threat. The other 14 amounted to sheer recklessness, they said.

This is hardly surprising, considering the “spray and pray” tactics favored by many of these contractors. But the incident has fed Iraqis’ fury at the American occupation and made it even harder for American officials to insist that Iraq’s leaders respect their own citizens and the rule of law.

The mess provides yet another argument for the swift and orderly exit of American troops from Iraq and the even swifter withdrawal of all the private armies Washington employs there. Any contractors who committed crimes must also be quickly brought to justice.

The legal path will not be easy, but there are options. The government could seek to prosecute the guards under the Military Extraterritorial Jurisdiction Act, or MEJA, which extends American criminal law to contractors overseas. Or it could try to court-martial the guards under the Uniform Code of Military Justice, which was amended last year to cover contractors accompanying the armed forces in the field.

It could also offer a plea deal — including some prison time — to any guards found to have recklessly violated deadly force rules. The guards may be a lot more interested if Washington makes it clear that it is ready to waive the immunity from Iraqi prosecution, granted to contractors by the American occupation government three years ago.

None of these options is foolproof. MEJA applies to contractors that accompany American armed forces, while the Blackwater guards were working for the State Department. Using the military code would face the same problem and would have to contend with Supreme Court opinions from the 1950s and 1960s barring the courts-martial of civilians.

A judge must decide on the applicability of these laws. For that to happen, either the Justice Department or the Pentagon would have to decide to prosecute — so far neither has shown any interest.

Contractors have been involved in some of the most shameful incidents in this war, including the torture of prisoners at Abu Ghraib. But not one contractor has been prosecuted for crimes against an Iraqi. That shameful record cannot be allowed to stand.