Matters Blackwater (Merged thread)

[120mm]

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???

Thanks for making the point about transitioning law. I've tried, and failed to succinctly make that point for the last few years. But I think you've discovered the crux of the problem.

[jmm99]

These are three relatively straight up accounts - McClatchy (at the end) is most useful for our purposes.

Blackwater charges: 14 counts of manslaughter
US unseals Blackwater indictment: 14 counts of manslaughter for deadly 2007 shooting in Iraq
LARA JAKES JORDAN and MATT APUZZO
AP News
Dec 08, 2008 12:09 EST

Five Blackwater Worldwide security guards surrendered on 14 counts of manslaughter and dozens of other charges Monday in connection with an investigation into a deadly 2007 shooting at a busy Baghdad intersection. .....
.....
Though the case has already been assigned to U.S. District Judge Ricardo M. Urbina in Washington, attorneys want the case moved to Utah, where they would presumably find a more conservative jury pool and one more likely to support the Iraq war.

http://wiredispatch.com/news/?id=480738

Judge Urbina, we have have met in the Uighurs cases ("War Crimes" thread). Seems a good judge (probably pro-defense), but I expect I would also be more comfortable with a Utah jury if I were defending these indictments.

New York Times
Plea by Blackwater Guard Helps Indict Others

WASHINGTON — In the first public airing of an investigation that remains the source of fierce international outrage, the Justice Department on Monday unsealed its case against five private security guards, built largely around the chilling testimony of a sixth guard about the 2007 shootings that left 17 unsuspecting Iraqi civilians dead at a busy Baghdad traffic circle.

In pleading guilty to manslaughter, the sixth security guard, Jeremy P. Ridgeway of California, described how he and the other guards used automatic rifles and grenade launchers to fire on cars, houses, a traffic officer and a girls’ school. In addition to those killed, there were at least 20 people wounded. ....

http://www.nytimes.com/2008/12/09/wa...pagewanted=all

McClatchy
Posted on Monday, December 8, 2008
Blackwater indictment details chaos at busy Baghdad circle

WASHINGTON — A 35-count indictment unsealed Monday of five Blackwater Worldwide security guards on manslaughter charges for the September 2007 shooting deaths of at least 14 Iraq civilians at al Nisoor Square in Baghdad, along with the guilty-plea agreement of a sixth Blackwater employee, provide the first official account of what took place that day. .....

http://www.mcclatchydc.com/251/story/57350.html

Of the three, McClatchy provides four source documents:

Ridgeway's proffer [this is what he will say when he pleads guilty] - here

Indictment of Ridgeway for killing al Khazali [passenger in the KIA] - here

Indictment of 5 Blackwater guards [the meat of the case] - here

Justice Department news release on the indictments [for a DoJ release, this is pretty much straight up] - here

OK, all of us have some reading to do. Thought I'd post this first; see a client for a while; and get back to the case later today.

[Stan]

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 running 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???

Bob, I fully concur, the rules currently in place have changed with such frequency and the contractors in question were in a position of self-preservation (in their opinion, which is the only one that counts at that time and place) and were probably the last to know of the politics involved. But, I can't stop there. This situation is also a severe question (lack) of leadership and possession of leadership skills (in the absence of). The contractors are young and their bios and awards speak for themselves. Sorry, but this is not a situation I would place young E-4s or E-5s in without sufficient supervision.

It is my personal opinion that they were in a situation without proper guidance, and, we now have a 6th member who felt his moral limits were breached. To echo the comments thus far, there's something missing.

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.

I've been a contractor for years following my retirement. ROE in my contracts? Surely you jest When a USG entity submits and tenders bids for a "contract" there's tons a paper, but hardly enough text to cover inevitable situations such as this one. Let's be straight, the clients under the defendants care were happy to be alive, and, were hardly in a position to bitch about the services

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.

Interesting point. We really do try to cover our Alphas and recognize our Soldiers, but we need to also remain focused and strike a balance regardless of the sources (we've got quite a collective bunch of professionals herein).

[Tom Odom]

Good post Stan and good discussion Polar Bear.

My position is simply that an agency contracting its security out does not contract out the responsibility for the actions of that security force--JMM I am speaking from personal not legal perspective.

The same thing holds for the contractor and assigning the duties of the members who actually perform the work. In the case of DSS after this episode, they restructured their training and and their supervisory roles to where a DSS member has to ride shotgun with these teams enough to certify them.

That is all fine and good. Changes needed to be made and they made them. But if the DoJ is going to charge these young men, then what happened to the BW execs who selected them, trained them, and supposedly led them? What happened to the DSS structure in country at the time? If they were not supervising effectively were they relieved or simply moved?

Tom

[jmm99]

First, morals and ethics

Tom Odom

My position is simply that an agency contracting its security out does not contract out the responsibility for the actions of that security force--JMM I am speaking from personal not legal perspective.
....
The same thing holds for the contractor and assigning the duties of the members who actually perform the work.

No argument from this choir on the moral and ethical obligations you outline.

I'm reminded of a very good client (MAJ in OSS - later very successful in another field; but now deceased) who always wanted to discuss the morals and ethics of what was to be done, as well as the "legalities". So, bravo for that approach.

Second, legal framework

JTF

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.

This seems an accurate framing of the legal issues - who says Oklahoma jailhouse lawyers ain't good.

Basically, we are talking about Article 119 charges here - which get harder and harder to prove as you go up the food chain.

I'd like to expound on this and the actual pleadings more, but the stuff really is hitting the fan here & and I'm in a time bind. Maybe tonite.

[John T. Fishel]

and the indictment, one thing that struck me immediately is the allegation that the BW guards, under contract to DOS, were in support of DOD. I suspect that allegation is necessary to bring the case under MEJA. But, it is factually untrue. DOS is not in support of DOD. Nor is DOD clearly in support of DOS. They are separate operations and the degree of mutual support was always a function of the personal interaction between the American Ambassador and the American military commander. Good luck, US Attorneys making that case

Cheers

JohnT

[Ken White]

Good luck, US Attorneys making that case

Yet another flawed law by our great Congress...

I'm really looking forward to the US Attorneys efforts to hook 'em with this:

"(c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime...for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years.

LINK.

[Polarbear1605]

Yet another flawed law by our great Congress...

I'm really looking forward to the US Attorneys efforts to hook 'em with this: LINK.

Ah-Ha! Ken brings up another issue with the Rules of Law (and I think this is some good news). With the rules of law, the rights of the accused kick-in...innocent until proven guilty, habeus corpus, sealing the crime scene, etc. Now think CSI Las Vegas... ballistics reports, finger prints, all that crime scene evidence that is necessary to convict someone of manslaughter...was there a crime scene investigation at Bagdad's Nisur Square...for example, enemy fire would have yielded enemy shell casings.
JMM...thanks for the documentation...reading it now and it is a big help.

[Schmedlap]

Has anyone given a rationale or theory for why 5 guys would drive out to a busy intersection, block traffic, and start shooting people indiscriminately?

[selil]

Ah-Ha! Ken brings up another issue with the Rules of Law (and I think this is some good news). With the rules of law, the rights of the accused kick-in...innocent until proven guilty, habeus corpus, sealing the crime scene, etc. Now think CSI Las Vegas... ballistics reports, finger prints, all that crime scene evidence that is necessary to convict someone of manslaughter...was there a crime scene investigation at Bagdad's Nisur Square...for example, enemy fire would have yielded enemy shell casings.
JMM...thanks for the documentation...reading it now and it is a big help.

Forensics now you've stepped into my terrain. Yes there was an attempt at gathering evidence from the reports. Whether chain of custody was attempted or not I don't know. The reports suggest that military and civilian authorities tried to gather physical evidence. It would be interesting to know what kind of evidence has been gathered from surveillance video, gun truck video, bystanders, etc.. but I am unaware of that.

Forensic evidence though is nothing without the narrative and context to support it in a court.

[Polarbear1605]

Nisur Square? I think this is a google earth shot of the Square. Let me know if it is not the square.
http://council.smallwarsjournal.com/...8&pictureid=45

[Ken White]

Has anyone given a rationale or theory for why 5 guys would drive out to a busy intersection, block traffic, and start shooting people indiscriminately?

glad I stopped carrying the rifle in the car due to my reaction and words directed at those nearby when I encounter traffic blocking an intersection for no discernible reason other than gross stupidity...

Seriously, good question and one that I also have not seen asked or discussed. There are a lot of things here, based on the limited and rather poor information publicly available that do not add up at all.

I have no particular leaning one way or the other in this other than that I have doubts about what has come out so far and I agree with Tom that the Contractor and the agency that hired the Contractor have some obligations here that do not thus far seem to be met.

[jmm99]

from Ken
... I stopped carrying the rifle in the car ...

if one has an "anger management" issue - as apparently both of us have. In the trunk allows some time for reflection. Not my normal practice here in CC cuz the probability of an encounter is remote.

Use of the 30-year machine gun statute, in this case, is an example of extending it beyond its intended purpose. I've warned conservatives repeatedly about too draconian criminal laws (lest someday, you be on the receiving end) - and there are executive orders out there which are worse for legal gun owners. All good things can be abused when carried too far.

Just got to eat supper an hour ago; so, I just DL'd the pleadings. Haven't even read them yet.

However, you guys are IDing all the issues and digging the facts. See you later.

[Ken White]

if one has an "anger management" issue - as apparently both of us have.

Nah, no prob for me, I'm too lazy to get too irate -- I do enjoy fulminating at stupidity though. I get to fulminate a lot...

Use of the 30-year machine gun statute, in this case, is an example of extending it beyond its intended purpose. I've warned conservatives repeatedly about too draconian criminal laws (lest someday, you be on the receiving end) - and there are executive orders out there which are worse for legal gun owners. All good things can be abused when carried too far.

Yea, verily.

Plus, in this specific case, looks like they're stacking charges and that's usually a clue the Prosecutors are uncertain of their case.

[Schmedlap]

Seriously, good question and one that I also have not seen asked or discussed.

I think the silence speaks volumes. The underlying assumption in reports about Blackwater is the that they are greedy, trigger-happy mercenaries who have no concern for the lives of Iraqis. I'll grant the trigger-happy bit. But, the level of discourse in the media about Blackwater in particular, and private contractors in general, has created an atmosphere in which any and all acts of evil are assumed plausible.

[jmm99]

"they're stacking charges". I suspect the 30-year mandatory charge is intended to scare 5 young men, who probably have not much experience with criminal proceedings.

Courage and bravery in battle doesn't equate to coolness in the courtroom. Once defended through jury a Marine (Vietnam, who had gone through some bad stuff there) - assaulting and resisting an MSP trooper in the course of an arrest. Long story short, jury not guilty. Guy said that the trial (especially his testimony - but more so, the six hours it took the jury to decide) was the worst thing he had gone through in his life.

Guy became a good friend of mine - nice guy, but a little rough around the edges and didn't like to be provoked. What I didn't tell him when the jury was deliberating was that the jury's Alpha Dog was the younger brother of a guy who was one of my good friends in high school and also was a Marine. Didn't think there was a chance in hell of that guy convicting - and he ended up being the jury foreman.

As you say, combat is comparable to no civilian profession. And, on the other side of the coin, trial experience is not comparable to any other profession either.

[Ken White]

I think the silence speaks volumes. The underlying assumption in reports about Blackwater is the that they are greedy, trigger-happy mercenaries who have no concern for the lives of Iraqis. I'll grant the trigger-happy bit. But, the level of discourse in the media about Blackwater in particular, and private contractors in general, has created an atmosphere in which any and all acts of evil are assumed plausible.

True. The media are trying to be fair as they see it and they don't want to be a civil suit target but they still are dropping innuendos.

OTOH, trigger happy Americans are not a myth, they are very real. The US Army and the US Marines have the worst fire discipline of any western armed forces I've seen. I hear it's getting better and I know that they're trying to switch rifle marksmanship to outcome based training and that will certainly help.

However, in the past, we were pathetic. Those kids all served on active duty at a time when the rule in Iraq as nearly as I can tell from the outside looking in (and from my 11B son who made OIF2) was kill anything that looks dangerous or try to do so. So they may have picked up bad habits; had them exacerbated by the work environment.

One of my fond memories of the Dominican Republic is sitting in the center of Santo Domingo every night for three weeks and watching 2/6 Mar and 2/82 Abn Div get into firefights with each other, fortunately doing almost no damage other than a couple of wounded. One from Korea is always routing my outside the lines patrols back through the British Commonwealth Division sector so the 5th Marines wouldn't shoot us up. One from Viet Nam is beaning a kid with a steel helmet for firing his M16 on full auto -- always a no-no for anyone working for me -- and him saying "I had to, he was shooting full auto at me and you always say proportionate response." Sigh. I had no response to that. Can't win 'em all...

Aforementioned son said on last trip to Afghanistan, keeping people from firing on automatic and keeping the SAW and 240 gunners from replying to occasional stray rounds from outside the wire or rounds at night was a constant. We are trigger happy, excessively so and it is NOT a good thing.

[Ken White]

Partial repeat:

But, the level of discourse in the media about Blackwater in particular, and private contractors in general, has created an atmosphere in which any and all acts of evil are assumed plausible.

Apropos of that, the WaPo has an article titled "Private Contractors sought as Guards in Afghanistan" LINK. Being the Post, it's fairly straightforward.

However, I've seen it cited on several so-called military blogs which I will not dignify with a link; those run by journalists, pundits or wanna-bes that allude to the Blackwater Case and make snide remarks about the new contracting effort.

Given the option of hiring contractors or putting about a quarter of your strength on the perimeter which precludes them from doing their job of hunting and countering bad guys and without even going into the math on the number of Battalions that such hiring means will not have to rotate in-country as often I must say I am once again impressed by the awesome knowledge and thought processes of many...

Obviously, we could put all the troops out in the boonies but they do need break on occasion and they need a secure area for that break...

The Draftee Army mantra and thought process lives on. Hey, guys -- we aren't that big nowadays -- and don't need to be, there are other ways to do bidness...

Sheesh.

[Polarbear1605]

Another interseting question(s) is: Who conducted the investigation?? Federal Marshals? and who initiated the investigation within the State Department (Bagdad or DC?) This may help discovering what some of the politics are?

[Stan]

Bob,
Here's several links regarding the FBI's investigations since 2007. Looks like at least four trips to Baghdad to date.

You'll also note the case is being moved to D.C.

Regards, Stan

Another interseting question(s) is: Who conducted the investigation?? Federal Marshals? and who initiated the investigation within the State Department (Bagdad or DC?) This may help discovering what some of the politics are?