Matters Blackwater (Merged thread)

[jmm99]

If this post belongs elsewhere, please move it to that location.

The Federal District court cases involving the five Blackwater contractors will start in earnest Monday, when the indictments are unsealed. Before we get to that point - and the complex legal issues which are involved - the following article giving their bios is worth reading.

Bio sketches of 5 indicted Blackwater guards
By The Associated Press
Saturday, December 6, 2008
(12-06) 10:59 PST , (AP) --

The Justice Department is expected to unseal indictments Monday against five Blackwater Worldwide security contractors for their roles in a deadly 2007 shooting in Baghdad. A look at the contractors and summaries of their military service records. ...

http://www.sfgate.com/cgi-bin/articl...w103358S29.DTL

In politically-charged cases of this kind, one should start with looking at the defendants as human beings; and then make judgments based on the evidence which is introduced in court.

[Stan]

While this doesn't change anything, I gathered little from their young ages and junior rank, and, relatively little about their awards and decorations.

Their actions regardless of age, merits and leadership skills are in question.

However, their marching orders were not their own and I see no good whatsoever in cooking these 5 and saving the hierarchy along the beltway.

[Ken White]

in all aspects.

[Tom Odom]

However, their marching orders were not their own and I see no good whatsoever in cooking these 5 and saving the hierarchy along the beltway.

Absolutely and I have had the opportunity to talk to those who saw this situation developing--the classic the bridge is out so would someone please start slowing the train--and were unable to focus attention on it. The train did not make it over the gorge.

Tom

[Polarbear1605]

Since the Blackwater guys are going to Federal Court, I suspect they are going to be charge for violations aginst the Rules of Law (read MEJA here). I have a feeling that this is going in the same direction as the Sgt Nazario case. Sgt Nazario and two of his squad were charge with killing 4 prisoners during the battle of Fallujah under the new MEJA (MILITARY EXTRATERRITORIAL JURISDICTION ACT). In the Nazario case, since there was no evidence, the prosecutor used judical waterboarding (GI Wilson and William McNulty terms) to try and get the Marines to roll on one another.
http://www.blackfive.net/main/2008/0...dicial-wa.html
Looks like the same scenario here. It will be interesting to see what evidence the government does have to support the charges. This gets back to an issue I would love to discuss: What applies here the Rules of Law or the Law of Armed Conflict (Rules of War). I think the political powers are finding they can't get their scape goats under the Rules of War and, consequently, they are running to their mama's political civil law bosoms.

[Stan]

Since the Blackwater guys are going to Federal Court, I suspect they are going to be charge for violations aginst the Rules of Law (read MEJA here). I have a feeling that this is going in the same direction as the Sgt Nazario case. Sgt Nazario and two of his squad were charge with killing 4 prisoners during the battle of Fallujah under the new MEJA (MILITARY EXTRATERRITORIAL JURISDICTION ACT). In the Nazario case, since there was no evidence, the prosecutor used judical waterboarding (GI Wilson and William McNulty terms) to try and get the Marines to roll on one another.
http://www.blackfive.net/main/2008/0...dicial-wa.html
Looks like the same scenario here. It will be interesting to see what evidence the government does have to support the charges. This gets back to an issue I would love to discuss: What applies here the Rules of Law or the Law of Armed Conflict (Rules of War). I think the political powers are finding they can't get their scape goats under the Rules of War and, consequently, they are running to their mama's political civil law bosoms.

Hey Polarbear, Welcome to the Council ! As time permits you, please go here and introduce yourself. Helps us with where you're coming from.

I'm not very familiar with SGT Nazario's case. From the links you provided, it appears the NCO was on active duty. In such an instance I would wholeheartedly agree with you, the NCOs should have faced a Courts Marshall, judged and observed by peers and superiors.

The Blackwater PMCs are unfortunately not subject to the UCMJ and already looks like these relatively young former Marines and Soldiers will bear the brunt of their (in)actions instead of a few rich bandits in DC.

Regards, Stan

[jmm99]

In this case, my plan is to stick pretty close to what I see the law to be; and generally will leave aside what I think the law should be - see below at end. The defense lawyers appear to be taking an aggressive media position in this high-profile case. That is part of their strategy and others can comment on that.

The first procedural step has been taken by defense counsel, which apprarently will start in Utah.

Venue fight: Blackwater guards plan Utah surrender
Venue fight looms as Blackwater guards plan surrender in Salt Lake City
MATT APUZZO and LARA JAKES JORDAN
AP News
Dec 07, 2008 15:26 EST

Five Blackwater Worldwide security guards indicted in Washington for the 2007 shooting of Iraqi civilians plan to surrender to the FBI Monday in Utah, a person close to the case said, setting up a fight over the trial site. ....

http://wiredispatch.com/news/?id=479861

What is going on here ? The idea of defense counsel is to force a trial in Utah Federal court. The Federal Rules of Criminal Procedure cover the proper venue of a criminal trial in most cases.

FRCP Rule 18. Place of Prosecution and Trial

Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.

(As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 2008, eff. Dec. 1, 2008.)

http://www.law.cornell.edu/rules/frcrmp/Rule18.htm

Since the alleged offenses were committed in Iraq, FRCP Rule 18 does not apply directly. So, we must look elsewhere for the law. The law of venue is summarized by CRS in this report.

CRS RS22361
January 6, 2006
Venue: A Brief Look at Federal Law Governing Where a Federal Crime May Be Tried
Charles Doyle, Senior Specialist, American Law Division
.....
(pp.4-5)
Venue for Crimes Committed Outside Any District.

The Constitution recognizes that certain crimes, like piracy, may be committed beyond the geographical confines of any federal judicial district. The application section now declares, “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia,” 18 U.S.C. 3238.

http://digital.library.unt.edu/govdo...eta-crs-8391:1

And, indeed, here is the statute.

18 USC § 3238. Offenses not committed in any district

The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.

http://www.law.cornell.edu/uscode/ht...8----000-.html

Historically, this statute goes back to our founding days, when pirates were a major concern of Federal criminal law. If the pirates were brought back to the port of New York, that is where the trial had to occur. So, defense counsel has set up the arrests in what they apparently feel is the best place for them to try the case.

------------------
Polarbear1605 is a heavy hitter - aren't all Marine LTCs (even if allegedly retired).

In another thread, Ken commented:

Reasoned discussion is good but emotional reaction to extreme provocation is hard to suppress.

So, I'll do some law on this case - and will generally sit back and enjoy both the reasoned discussion and the emotional reactions.

[Polarbear1605]

Hi Stan,
"The Blackwater PMCs are unfortunately not subject to the UCMJ and already looks like these relatively young former Marines and Soldiers will bear the brunt of their (in)actions instead of a few rich bandits in DC."
Yep and agree, I understand they are not subject to the UCMJ. Are they subject to the Rules of Armed Conflict (Gevena Conventions). In other words, did they kill Iraqi civilian violating the principles of military necessity along with distinction and proportionality?
lol...let the mind twisting begin. Bob

[selil]

The more I read the more I realize a PhD won't be enough. I need an International law degree too. dang it.

[Stan]

Hey Bob, Thanks for the intro!

This DOJ press release is pretty damning even if remotely accurate. A SAW and M203 , IMO exceeds proportionate use of force on civilians. The press rep makes it clear the individuals are responsible, not Blackwater


Guards Used Grenades

Hi Stan,

The Blackwater PMCs are unfortunately not subject to the UCMJ and already looks like these relatively young former Marines and Soldiers will bear the brunt of their (in)actions instead of a few rich bandits in DC.
Regards, Stan

Yep and agree, I understand they are not subject to the UCMJ. Are they subject to the Rules of Armed Conflict (Gevena Conventions). In other words, did they kill Iraqi civilian violating the principles of military necessity along with distinction and proportionality?
lol...let the mind twisting begin. Bob

[Tom Odom]

This opinion piece is on the mark except that it gives the agency responsible for supervising the contract--the Department of State's Diplomatic Security Services--a walk as well. And the author just has to use it as a larger indictment of the Bush Administration; he privilege but it dilutes the relevancy of the piece.

A Whitewash for Blackwater?

By Eugene Robinson
Tuesday, December 9, 2008; Page A19

The federal manslaughter indictment of five Blackwater Worldwide security guards in the horrific massacre of more than a dozen Iraqi civilians in Baghdad may look like an exercise in accountability, but it's probably the exact opposite -- a whitewash that absolves the government and corporate officials who should bear ultimate responsibility.

[John T. Fishel]

First, the facts of the incident are in dispute. The indictment "alleges" that the guards opened fire w/o cause and indiscriminately. The defense argues that they were under attack and returned fire. The facts should be brought out in the trial. Second, no facts regarding Blackwater policy have yet to be brought out even in the media articles that I have seen. To hold the Blackwater execs responsible requires, I think, showing that they either had a policy for rules of engagement that violated the laws of war or that they were criminally negligent in their lack of enforcement of legitimate rules of engagement. Third, to hold DOS personnel criminally responsible would, I think, require showing that they knew or should have known both the laws of war and the rules of engagement and did not take steps to enforce both - if, indeed, they were violated - a fact in dispute as noted above.

My point is that the only way I can see of getting to the bottom of this in terms of criminal law is to try the guards which could produce sufficient leads to bring charges against others - or not, depending on the facts.

Since I'm not a lawyer, I'd be curious how this analysis stacks up - JMM.

cheers

JohnT

[Polarbear1605]

Stan said: "IMO exceeds proportionate use of force on civilians" and I agree, but the question then becomes why are they charged with manslaughter instead of killing civilians beyond military necessity exceeding proportionality? Maybe it is me, but I see a transition here from the rules of war to the rules of law for political purposes and not justice. My question then becomes what is the procedure or what are the rules for making that transition. We see this same thing in some of the military cases in both Iraq and Afgan. So the next question is should we make a transition between the rule of war and the rules of law?
In the contractors defense (and I am not saying this happened, but just throwing it out there for thought), if you are in the middle of an ambush firefight, where everyone is runnning and ducking, and an unknown individual approaches you with his hands in the air (in a country full of suicide bombers) what would you do???

Understanding we don't have all the information, for example, were the contractors operating under a set of ROE (Rules of Engagement), and were they authorized the use of deadly force? There should be something in the State Department Contract with Blackwater that addresses this ... please don't tell me the State Department hired these guys without providing some type of ROE.

BTW: Stan and Tom thanks for those two articles it is interesting when you compare them, the more balanced article seems to be a non-US source.