This round goes to Gates

The Department of Defense and the State Department agreed on Tuesday that the DoD would assume a greater role in the oversight and management of armed security personnel operating in Iraq.

The DoD has wanted greater control over the mercenaries who run in and out of the battle space wreaking havoc since the earliest days of the occupation. Blackwater alone has been involved in over 190 incidents in which they discharged their weapons since 2005, and have earned a reputation as trigger-happy thugs who undermine the mission (whatever it is this week). The most recent incident, on September 16, left 17 Iraqis dead and started a deluge of bad publicity for Blackwater, including charges of weapons smuggling, theft of military aircraft, and tax evasion.

The rate of Blackwater violence is at least twice that of DynCorp International and Triple Canopy, the other security companies operating in Iraq. Blackwater’s hired guns are just that, discharging weapons, on average, twice every convoy. (The other companies frequently escort convoys completely without incident.)

“You can find any number of people, particularly in uniform, who will tell you that they do see Blackwater as a company that promotes a much more aggressive response to things than other main contractors do,” a senior American official said. “Is it the operating environment or something specific about Blackwater?” asked one government official. “My best guess is that it is both.”

While the bloody rampage at the Nissour traffic roundabout was the most shocking in the level of wanton killing, the modern-day Pinkerton's of Blackwater are under investigation in six other episodes that left ten people dead and at least 15 wounded.

Slowly, American officials are accepting the position that Blackwater's behavior in Iraq is counterproductive to the stated 'mission' by fueling resentment among the local population.

“They’re repeat offenders, and yet they continue to prosper in Iraq,” said Representative Jan Schakowsky, an Illinois Democrat who has been broadly critical of the role of contractors in Iraq. “It’s really affecting attitudes toward the United States when you have these cowboy guys out there. These guys represent the U.S. to them and there are no rules of the game for them.”

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Currently, there are approximately 10,000 armed mercenaries running around Iraq, under contract to various branches of the United States government and NGOs. I know it sounds bizarre, but there is no central oversight authority to which they must answer.

Pragmatically, it just makes sense to bring all armed civilians who are under contract to American government agencies and NGOs, as well as the American military under one authority. It would mean, effectively, that those armed civilians would no longer have multiple bosses at multiple levels and a disparate set of rules. Pentagon officials say it would allow for better coordination and communications between the American military and the private security personnel.

When contractors get in trouble, they call on the US military to bail them out. Fully 30% of the incidents in which the military was called on to save mercenary bacon involved movements and convoys that the military was not even aware had mobilized.

American commanders often perceive the private security personnel in an adversarial light. Civilian casualties, victims of mercenary gunfire, infuriate the Iraqi government and damage the American perception and image among the locals. This frustrates military officers who say the heavy-handed, shoot-first-and-don’t-even-bother-to-ask-questions-later tactics by mercenaries undermine the broader mission.

Also on Tuesday, the Iraqi parliament hammered out draft legislation that would repeal Order 17, the imperialistic, extraterritorial immunity granted to mercenaries by Paul Bremmer on his way out of town when the CPA turned over authority to the Iraqi government. Order 17 exempts mercenaries who commit wanton murder of Iraqi civilians (and any other crimes) from prosecution in Iraqi courts.

It was already a given that State was not going to be of much help to their hired guns. Indeed, it has been known for a while now that Blackwater is on it's way out of Iraq, and State will not be renewing their contracts. But the constant barrage of evidence pointing up the incompetence and fecklessness of the State Department under Condi Rice, including the revelation less than 24 hours before the agreement was made that State Department investigators had sanctioned Blackwater lawlessness by routinely issuing immunity to mercenaries involved in shooting incidents, Gates got less resistance from State than was expected.

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Incompetence? Or Obstruction?

Justice Department officials grappling with bringing to account the Blackwater mercenaries involved in the murderous rampage in Nissour Square on September 16 got a nasty surprise. Investigators from the State Department - who lacked the authority to do so - offered Blackwater USA security guards immunity in exchange for their statements. State Department protocols require that Diplomatic Security agents investigate and report all incidents in which force is used. Last week, the chief of the Diplomatic Security Bureau, Richard J. Griffin, resigned abruptly. Presumably, his inability to control Blackwater was at the root of his sudden departure, but now it looks like he may have left in advance of this information becoming public.

FBI agents took over the State Department's investigation two weeks after the Sept. 16 killing spree, but the damage was already done. None of the information obtained during questioning of the guards by the department's Bureau of Diplomatic Security, the division of the State Department that oversees security contractors, will be admissible. (I believe that defense attorneys call this "fruit of the poisoned tree.")

Subsequently, some Blackwater guards have cited promises of immunity from State, and refused to even be interviewed by the FBI. The Justice Department is not precluded from bringing charges using other evidence, but the inadmissibility of their initial statements complicates matters significantly.

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From the New York Times:

Most of the guards who took part in the Sept. 16 shooting were offered what officials described as limited-use immunity, which means that they were promised that they would not be prosecuted for anything they said in their interviews with the authorities as long as their statements were true. The immunity offers were first reported Monday by The Associated Press.

The officials who spoke of the immunity deals have been briefed on the matter, but agreed to talk about the arrangement only on the condition of anonymity because they had not been authorized to discuss a continuing criminal investigation.

The precise legal status of the immunity offer is unclear. Those who have been offered immunity would seem likely to assert that their statements are legally protected, even as some government officials say that immunity was never officially sanctioned by the Justice Department.

Spokesmen for the State and Justice Departments would not comment on the matter. A State Department official said, “If there’s any truth to this story, then the decision was made without consultation with senior officials in Washington.”

This complicates an already-dicey legal situation. Blackwater and other mercenary outfits are immune from prosecution under Iraqi law under Order 17, signed by Paul Bremmer on his way out of town. The order still stands, the Iraqi parliament has not repealed it. They can't be tried in military courts (at least not yet.) And it is unclear what American criminal statutes apply to armed Americans operating in a war zone.

A review panel sent by State to investigate the incident determined that the legal standing to hold the Blackwater mercenaries to account under U.S. federal statute was lacking, and urged Congress to address this gaping loophole in accountability and oversight authority. To date, the House has passed a bill with an overwhelming majority that would hold all security contractors* liable under the Military Extraterritorial Jurisdiction Act; the Senate is considering similar legislation. Some legal experts have suggested that the Nissour Square killings be the first cases prosecuted through the act once it is extended.

But...(Isn't there always a great big But...?)

For a case to be tried in federal court, evidence is only admissible when it meets a very high chain-of-custody bar, designed to put in place guarantees that evidence has not been tampered with. Evidence gathered by foreign investigators and turned over to U.S. investigators is reflexively seen as suspect on it's face, and the admissibility of the evidence would be contested by any first year law student. Additionally, the Constitutional guarantee of the accused to cross-examine witnesses is problematic in these instances, requiring foreign witnesses be transported to the United States to appear in court.

What was from the outset a brutally difficult case to bring was complicated further by the actions of the State Department investigators.

So was it incompetence? Could the Keystone Kops run a better State Department?

Or was it obstruction? Yet another instance of sand in the umpires eyes?


*security contractors = mercenaries

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