Matters Blackwater (Merged thread)

[Polarbear1605]

Thanks Stan for the article links. So the DOS gets the FBI to investigate ... under MEJA?
Whoa! I think everyone should read this one.
http://townhall.com/columnists/Jacob...&Comments=true
Makes a case that MEJA does not apply to DOS contractors.

[jmm99]

The issues that will come up will be:

1. Venue of case (DC or Utah). The Federal magistrate (a lawyer, but not an Article III judge) has transferred the case to DC. That decision can be appealed.

2. Jurisdiction over case (MEJA). This will be the key pre-trial legal issue, which should in the long run go up to SCOTUS (simply to clarify what the MEJA statute means).

3. Trial of Merits (Manslaughter). This will hinge entirely on the facts. The basic law of manslaughter is simple, whether under USC or UCMJ; and they are basically the same.

The law of self-defense is going to be more complex. In Ridgeway's proffer (linked above in post #15), DoJ seems to rely on the following as the standard for self-defense:

6. As a condition of their employment as State Department contractors, defendant Ridgeway and the other members of the Raven 23 convoy each signed a written acknowledgment form, agreeing to abide by the use-of-force policies set forth in the State Department Mission Firearms Policy for Iraq.

The Mission Firearms Policy provided:

The touchstone of the Embassy Baghdad policy regarding the use of deadly force is necessity. The use of deadly force must be objectively reasonable under all the circumstances known to the individual at the time . . . The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to a specific individual or other person have failed or would be likely to fail. Thus, employing deadly force is permissible when there is no safe alternative to using such force and without the use of deadly force, the individual or others would face imminent and grave danger.

Mission Firearms Policy, United States Embassy, Baghdad, Iraq, at 4 (emphasis in original).

The Mission Firearms Policy also recognizes that the reasonableness of a belief or decision must be viewed from the perspective of the individual on the scene, who may often be forced to make split second decisions.

It will be a long-time coming before we reach the merits of the case (item # 3). In is quite possible that these defendants simply cannot be tried under any law (item #2).

As to the politics of this case, we can be assured that whatever today's politics may be, they will be different in 60 days when the DoJ and Wash. DC US Attorney are re-organized under the new administration.

[Stan]

Thanks Stan for the article links. So the DOS gets the FBI to investigate ... under MEJA?
Whoa! I think everyone should read this one.
http://townhall.com/columnists/Jacob...&Comments=true
Makes a case that MEJA does not apply to DOS contractors.

Interesting that. I did find another article (by no means the details that JMM has at his fingertips ).

Law's unclear if U.S. can prosecute Blackwater guards

Who was this employee, and what was his or her function? Would protecting, say, an agricultural attache amount to "supporting the mission" of the Pentagon?

That could be one way of defining whether the act really applies. More broadly the question could be: Five years after the U.S. invasion of Iraq, is the ongoing occupation primarily a military or a diplomatic operation and is the State Department subordinate to the Defense Department in the Iraq venture?

Iraq is a combined operation, in which State supports the Department of Defense and the Department of Defense supports State, each intertwined in service to a unified U.S. objective. So maybe that's the answer, and the Blackwater guards lose on the jurisdiction issue.

[jmm99]

but Anna Faris is, but only in my dreams.

Stan's McClatchy link spells out the problem - parsing "supporting"; for which, legislative history is sparse:

Sen. Jeff Sessions, R-Ala., the author of the 2004 amendment and of the original MEJA, said simply on the Senate floor June 16, 2004, that "this amendment would give the Justice Department authority to prosecute civilian contractors employed not only by the Department of Defense but by any federal agency that is supporting the American military mission overseas."

The indictments (linked above - p.1 of this thread) emphasize this:

Ridgeway

At all times relevant to this Information:

1. On or about September 16,2007, defendant JEREMY P. RIDGEWAY was employed by the Armed Forces outside the United States, as defined in 18 U.S.C. § 3267(1), that is:

a. The defendant was an employee and a subcontractor of Blackwater Worldwide, a company contracting with the United States Department of State, who was employed to provide personal security services in the Republic of Iraq, which employment related to supporting the mission of the United States Department of Defense in the Republic of Iraq.

and the Others

At all times relevant to this Indictment:

1. On or about September 16,2007, defendants PAUL ALVIN SLOUGH, NICHOLAS ABRAM SLATTEN, EVAN SHAWN LIBERTY, DUSTIN LAURENT HEARD, and DONALD WAYNE BALL, were employed by the Armed Forces outside the United States, as defined in 18 U.S.C. §3267(1), that is:

a. The defendants were employees and subcontractors of Black water Worldwide, a company contracting with the United States Department of State, who were employed to provide personal security services in the Republic of Iraq, which employment related to supporting the mission of the United States Department of Defense in the Republic of Iraq.

The use of "employed by the Armed Forces" in the first paragraph has caused confusion here and elsewhere - because they weren't employed by the Armed Forces in the general meaning of that term.

We'll see what Judge Urbina will do with this one. His decision in the Uighur cases is no precedent here. In fact, there is no precedent here.

[John T. Fishel]

facts like who is supporting whom? The historical norm is that the Ambassador and his mission is the supported element (Presidential Letter of Appointment) except in cases where a major military operation is being conducted. In that case, the Ambassador runs a parallel operation with DOD but not in support of DOD. (However, a friend who is a former US Ambassador insists that in all cases the Ambassador is the supported element.) Part of the problem - sorry about this JMM - is that lawyers actually write legislation. Thus it makes darn little difference what Sen. Sessions intended; it is only important what the legislation actually says.

One question that I have - goes back to Polar Bear's point - is why we couldn't simply try these guys for the violation of the Law of Land Warfare. We are signed up to the various treaties and conventions that make up said law and even the statute of the International Criminal Court puts primary responsibility for prosecuting war crimes (violations of the laws of war) on states rather than on the ICC. Indeed, we have so prosecuted in the past although not civilian contractors. Moreover, American legal tradition does not require a statute law to prosecute - violations under the common law can also be prosecuted, at least within recorded American history.

Cheers

JohnT

[jmm99]

starting with:

from JFT
Do we really trust judges to decide facts like who is supporting whom?

Assuming this is a rhetorical question, please tell us who should be deciding this case, or for that matter, the "War Crimes" cases. We're open to any concrete proposals. In fact, you can provide us with a new Article III for the Constitution, spelling out who should decide matters of law and fact.

And with

Part of the problem - sorry about this JMM - is that lawyers actually write legislation.

Again, tell us who should draft laws. I personally have no vested interest in having lawyers draft laws. In fact, I expect lawyers would be better off financially if all laws were drafted by non-lawyers. At least that has been my experience with wills, trusts, deeds and contracts drafted by non-lawyers - yum, yum $ $.

and with

Thus it makes darn little difference what Sen. Sessions intended; it is only important what the legislation actually says.

OK, the first rule of legislative construction is to apply the plain meaning of the text. But, what if the text is ambiguous ? So, a secondary rule is to look to the legislative history. Also true that rule can be abused since it can lead to "judicial legislation" (J. Scalia has pointed that out in several cases; but he is also one to pound legislative history when it supports his result).

The alternative is to apply a strict and absolute plain meaning test - if there is not a plain meaning, the statute is void for vagueness. Perhaps, that is the rule we should adopt and rigidly adhere to - it would get rid of a hell of a lot of laws. So, please provide us with a draft of your constitutional amendment to do just that.

and with

One question that I have - goes back to Polar Bear's point - is why we couldn't simply try these guys for the violation of the Law of Land Warfare.

Tell us which law of land warfare you are proposing. There are a hell of a lot of laws governing land warfare. Which one would you use to prosecute this particular case. Saying we should use the "Law of Land Warfare", or should or should not use the "Rule of Law", may mean something to you - but those terms mean nothing to me, except as generalities.

and with

Moreover, American legal tradition does not require a statute law to prosecute - violations under the common law can also be prosecuted, at least within recorded American history.

Not in Federal courts since the War of 1812. I'd have no real problem with the common law as the basis for criminal prosecutions - as propounded in Bill Crosskey's 2 vol. set Politics and the Constitution (1953), which I pull from the shelves to read for pure enjoyment - good stuff, available here.

When the first two volumes of William Crosskey's monumental study of the Constitution appeared in 1953, Arthur M. Schlesinger called it "perhaps the most fertile commentary on that document since The Federalist papers." It was highly controversial as well. The work was a comprehensive reassessment of the meaning of the Constitution, based on examination of eighteenth-century usages of key political and legal concepts and terms. Crosskey's basic thesis was that the Founding Fathers truly intended a government with plenary, nationwide powers, and not, as in the received views, a limited federalism. ...

Please note: if you want to go to a complete and pure common law system, I'd not object. But, common law is explicitly and wholly "judicial legislation" - and, if we cannot "trust judges to decide facts", do you really want that common law system ?

All of your points are good ones for discussion in the context of this case. However, he who pleads against a position has the obligation, if anything is to be learned, to also plead the specifics of the alternative position.

[John T. Fishel]

states that the Supreme Court (and inferior courts by extension) shall have "...jurisdiction both as to law and fact..."* but I have a real problem when judges decide fact and are simply wrong about the facts (as in Clinton v. Jones - or was it the other way around?). I'm afraid that I don't have a better solution in this case but I certainly hope that the judges will recognize that the facts don't really support any interpretation of who is supporting whom.

Law of Land Warfare, I understand, is a set of treaties, conventions, and customs. It is also my understanding that treaties to which the US is a party are US law on a par with any other Federal statute (although SCOTUS tossed a curve ball on that in addressing the death penalty case for a Mexican national). Still, the element of custom in the "Law of Land Warfare" is a sort of common law function. And, yes, common law is judge made - but restrained by both precedent and those very customs. But why am I telling you this? you know it better than I do. Still, it seems useful to me to suggest that if we catch a pirate or two, we ought to try them aboard ship, convict them, and hang 'em from the nearest yardarm according to the ancient sea laws/customs against piracy. In a somewhat analogous fashion, it seems to me that we have jurisdiction over the Blackwater contractors and can try them for violations of the several treaties, conventions, and customary laws - either that or as illegal combattants, or both.

Regarding who should draft laws: personally, I think it ought to be the legislators with the help of hired Napoleon's corporals to make sure the draft laws are understood to mean what the dafters intended.

My point regarding Sen Sessions, however, was that his comments on his intent are less than sufficient guidance. As you point out, plain text comes first, then legislative history. But legislative history is usually recorded in the mark-up of the bill and later in the statements of the members of the committee that reported it out. Whether Sessions was the sponsor (sole or as amember of a group) is less relevant than the collective intent of the members of the reporting committee. Again, we should always remember that legislation is nearly always a compromise among the members of a committee.

Cheers

JohnT

*as John Marshall quoted Art III in Marbury where he arrogated to the court a power that James Madison said would have caused him to reject his own Constitution!

[Schmedlap]

I think the prosecution is attempting to "prove too much." The guards were supporting the State Department. Does Ambassador Crocker answer to Odierno? Or even to Petraeus? If not, then this seems like a pretty clear expression of intent for our policy in Iraq to be one of not a military operation supported by the state department, but of a dual mission where each department has its own mission. DoD and State have two purposes in the same area, just as a police department and fire department have two purposes in the same area. If I'm a security guard at the fire station, then that doesn't mean that I'm supporting the police department.

Jeff Sessions made an interesting comment, but the prosecution has chosen their argument. They're arguing that the contractors were supporting the mission of the Department of Defense. I think the defense can rather effortlessly argue that the DoD is supporting the State Department, not the other way around.

[jmm99]

continued, as to:

JTF
... but I have a real problem when judges decide fact and are simply wrong about the facts (as in Clinton v. Jones - or was it the other way around?). ..

I also have problems when judges decide facts wrongly - so, I appeal and appeal again (2 levels of appeal in NY, MI & US - which exhaust my bar admissions). I probably lose the appeals unless the judge's findings are clearly erroneous - something about the idea that factual questions arise because reasonable men (oops, persons) can differ in their inferences drawn from the same facts.

If anyone has a better solution as to how facts should be found, I'm sure most judges would buy it. They hate finding facts - so, whenever possible fact finding is put to the jury (you didn't mention that institution). Or, they decide cases based on what is stated in the allegations of the pleadings - as in most of the "War Crimes" cases - only Judges Urbina and Leon have held merits hearings.

and this:

I certainly hope that the judges will recognize that the facts don't really support any interpretation of who is supporting whom...

The judge (presumably Urbina) will be presented two different factual and legal arguments as to "supporting". The definition of "supporting" (whatever version) is a mixed question of law and fact - which means it will be decided de novo in any appeal (probably two, since SCOTUS probably will get into the act unless the 5 plea-bargain out). I've no firm position on that issue - I think it could go either way.

and this

Regarding who should draft laws: personally, I think it ought to be the legislators with the help of hired Napoleon's corporals to make sure the draft laws are understood to mean what the dafters intended.

Who are the "Napoleon's corporals" ? - we've excluded lawyers per your first post. Actually, I'd go with the requirement that only legislators draft the laws - especially, the appropriation bills and the tax laws - and absolutely exclude all hired or outside "assistence". That would limit both the number and length of laws. Anybody think the Pentagon and the Association of Trial Lawyers of America, to name but two of the 1000's of special interest groups, would buy that.

Just a thought, but what I suggested for Congress is pretty much what happens in our courts - e.g., a Federal judge (district or appeals) has 1 or 2 law clerks; a SCOTUS justice usually has 2 clerks. So, the decisions that are so griped about are prepared mostly by the principals who have to sign off on their opinions and take individual responsibility.

and this

...as John Marshall quoted Art III in Marbury where he arrogated to the court a power that James Madison said would have caused him to reject his own Constitution !

You might check the identity of the defendant in that case - one James Madison, I believe. Since when did defendant Jim own the Constitution ? But, better, you do realize that the actual holding of the case was to limit the scope of review by SCOTUS ?

The issue of judicial review is interesting - Crosskey goes into it in depth. You probably can find that set in a good law library - but, be prepared to sit down as well with the Federalist Papers, and the full texts of the statutes and cases he discusses.

Now. to a few points where your particulars are specified - and where you will find me in general agreement.

Law of Land Warfare, I understand, is a set of treaties, conventions, and customs. It is also my understanding that treaties to which the US is a party are US law on a par with any other Federal statute (although SCOTUS tossed a curve ball on that in addressing the death penalty case for a Mexican national). Still, the element of custom in the "Law of Land Warfare" is a sort of common law function. And, yes, common law is judge made - but restrained by both precedent and those very customs.

Slight amendment on treaties. For purposes of its application in domestic law, a treaty is effective there, if by its terms, it is self-executing. If the treaty is not self-executing, Congress must enact a law making it effective in domestic courts. Second, even if the treaty is self-executing or is made effective by a Congressional statute, it is superceded by a subsequent Congressional statute to the contrary.

And, of course, a treaty must comply with the Constitution - unless, of course, you wish to exclude judicial review of statutes and treaties - per defendant Jim when he was provoked by justice John Marshall (whose middle name was Michael - not really, I made that up, JMM). "One Worlders" want all treaties to be self-executing with supremacy over the Constitution - if you are inclined in that direction, we are at odds.

In connection with that, you made the most important point of all: "common law is judge made - but restrained by both precedent and those very customs." The problem that I see is not "judicial legislation" as such - that to some degree has always been present in both UK and US law (both common law and statutory interpretation). The problem is a sometimes reckless disregard of precedents, and the customs that underlie those precedents. If precedents are disregarded, the law becomes unpredictable. The contrary argument is that we must do "justice" in each case - which means "justice" in the eyes of that particular judge or justice.

There are precedents that should be overruled - those that have been buried by the sands of time - in short, the customs that underlaid those precedents no longer exist (slavery, as an example). Or, the precedents were so wrongly decided that they should never have been made in the first place. Those cases are comparatively rare - but a great satisfaction to the lawyer who manages to overthrow an unconstitutional precedent of "ancient" vintage (only once in my career).

Which brings us back to adopting the Laws of War as our criminal law - So, here's the statute (just made it up):

All acts and omissions contrary to the Laws of War shall be tried before a [tribunal - whatever type of court you want]; and the defendant, if found guilty [insert your own proof standard of guilt] shall be executed by firing squad [or such lesser punishment as the tribunal shall determine].

Anybody see anything wrong with this statute ?

I like this one.

Still, it seems useful to me to suggest that if we catch a pirate or two, we ought to try them aboard ship, convict them, and hang 'em from the nearest yardarm according to the ancient sea laws/customs against piracy. In a somewhat analogous fashion, it seems to me that we have jurisdiction over the Blackwater contractors and can try them for violations of the several treaties, conventions, and customary laws - either that or as illegal combattants, or both.

No real objection to this one re: pirates and terrorists (one of my points in another thread) - a panel of experienced officers and SNCOs would constitute a "competent tribunal" under the minimum standards of GCs, common Art. 3 (IMO - many others will violently differ).

A serious question to the experienced officers and SNCOs who happen to be reading this. Would you want this mission added to your other duties ?

BTW: the Blackwater guys, as US citizens, might want to object to this procedure - something about the Bill of Rights, perhaps (a point, I've also made elsewhere).

BTW: If you really want to go to "illegal combatants" and violations of the Laws of War, you might want to consider prosecution under the real War Crimes Act. Nobody's been prosecuted under that act yet, but there is always a first time - as Chuckie, Jr. found out under the Anti-Torture Act.

and finally

My point regarding Sen Sessions, however, was that his comments on his intent are less than sufficient guidance. As you point out, plain text comes first, then legislative history. But legislative history is usually recorded in the mark-up of the bill and later in the statements of the members of the committee that reported it out. Whether Sessions was the sponsor (sole or as amember of a group) is less relevant than the collective intent of the members of the reporting committee. Again, we should always remember that legislation is nearly always a compromise among the members of a committee.

Good summary of how to use legislative history. Which is why I have an open mind on the question. If I were Judge Urbina, I'd order a pre-trial evidentiary hearing and hear all of the facts relevant to the statute's history and to the relationship between DoD and DoS in Iraq.

Quite a workout, John. We have to stop meeting this way.

[jmm99]

Just ran into this comment by Selil in another thread (post # 9); with some slight punctuation editing

Theory is just that - theory. If it were tested, it could be law. That is why it is Einstein's theory of relativity and Newton's law of gravity. There are a whole lot of misconceptions about epistemology floating around.

I've not thought of the jurisprudence of statutes and common law cases in that way, but it makes sense. That is, a statute is really just a theory until it is tested in a actual case - as we are now doing.

A common law case is a test ab initio - the result (what we call common law) comes from the direct experience of that case.

Hat tip, Sam.

[John T. Fishel]

I should never have excluded the jury as an institution, although I generally fail to see the modern application of total ignorance as a measure of fairness on the part of the jury. That said, it is precisely the measure I would use for my Napoleon's corporals - intelligent but uneducated in legalese laymen; if they can understand it anybody should be able to, even lawyers!

Marbury v. Madison: In terms of the specific outcome according to the decision, the defendant, Madison, won. Bill Marbury didn't get his commission as a justice of the peace. Jimmy boy and his boss, Tommy J. got what they wanted, although cousin John chastized them in strong words - sticks and stones and all that. But the big winner, of course, was Marshall who created JR out of whole political cloth! I think the historical evidence weighs most heavily in favor of Madison's interpretation of Constitutional intent although hamilton does suggest it in The Federalist and the idea had been floating around since at least the time of Sir Edward Coke. That said, I don't object to JR in principal but to some of the reverence for it in all cases. There are times when the other branches supercede the Court, most obviously the Congress who may impeach judges for lack of good behavior. Can you imagine if Bill Clinton had simply refused to testify in the Paula Jones case and said, impeach me if you can? I suspect the outcome would have been no bill of impeachment and we wouldn't have wasted our time with Judge Starr's inquisition. Is JR necessary? The Brits have never had it - Coke lost that argument - and their independent courts seem to work pretty well. Would that work for us? Probably not - too much water over the dam (precedent).

So we are back to the Blackwater guards. Hopefully, Judge Urbina will exercise appropriate restraint and that we can find a constitutional way for justice to be done. Of course, we could just let somebody else's cops just pick them up and extraordinarily rend them to the ICC but then they'd be in jail forever waiting for the proceedings to get underway and come to an end - cruel and unusual punishment if ever such was.

Cheers

JohnT

[Polarbear1605]

One question that I have - goes back to Polar Bear's point - is why we couldn't simply try these guys for the violation of the Law of Land Warfare. We are signed up to the various treaties and conventions that make up said law and even the statute of the International Criminal Court puts primary responsibility for prosecuting war crimes (violations of the laws of war) on states rather than on the ICC. Indeed, we have so prosecuted in the past although not civilian contractors. Moreover, American legal tradition does not require a statute law to prosecute - violations under the common law can also be prosecuted, at least within recorded American history.

Did I tell you folks I like the way John thinks.
John answered one of two questions I have about the prosecuting under the Rules of Armed Conflict. The first is if we went that route, what are the chances that the US could/would lose control and we would have US citizens standing trial at the Hague by the International Organization? Once we start the legal process in the good old USA could another country start a prosecution at the international level at the same time or after? One reason I ask this question is I know Iraq was not real happen about this incident. John if you could post a reference on the "state rather than the ICC" thing, it would be appreciated.

#2 If we charge someone for killing a civilian(s) that was not a military necessity; the Rules of Armed Conflict state the the "Field Commander" determines military necessity. Understanding that the the military has a well defined chain of command (and the UCMJ) but does the State Department? or another way to say it is; if the contractors are working for the State Department who determines military necessity??

[John T. Fishel]

http://www.icc-cpi.int/about.html Here is a link with a brief summary and a link to the Statute of Rome. Remember, the the US is not a party and does not recognize its jurisdiction.

Cheers

JohnT

[jmm99]

are so far removed geographically. You and I could have some real fun arguing out JR, Johnny, Tommy and Jimmy - and you would not like Crosskey one bit. In my nocturnal musings last nite, I went to a Brit source, Plunknett, A Concise History of the Common Law, which is here, for his chapter on the development of legislative interpretation in the UK courts. This book is a great basic read - doesn't bury you as some of Maitland's stuff does. It and Max Sorenson's, Manual of Public Intetrnational Law (New York: St. Martin's Press, 1968; no url handy) have been sitting out in my living room since I've been posting legal stuff here.

--------------------------------------
As to Napoleon's Corporals,

That said, it is precisely the measure I would use for my Napoleon's corporals - intelligent but uneducated in legalese laymen; if they can understand it anybody should be able to, even lawyers.

What is "legalese" is another living room conversation over a 12-pack. Once upon a time, I read through the Internal Revenue Code and Regulations (then a 3 vol. set - so a long time ago) and understood what was written. Thus, I conclude that I can understand Plain English, Legalese and everything in between.

As I've said elsewhere, my personal approach is client intensive - I teach and I am taught; they learn and I learn. Reflecting on it, I use the reverse of your Napoleon's corporals approach. First, do I understand what I draft - sometimes I don't on second reading. Second, does my paralegal understand what I write - if not, why not. Third, does my client understand what I write - same drill. Also, the same drill for what comes in written by another lawyer, or layman for that matter.

The comments on this blog about lawyers and legalese are not uncommon - have heard all of them and consequent arguments at least once in my life. Having reflected on that more than once, my conclusion is that I may be somewhat "unconventional" in my personal approach - a good reason to be here - non ?

In any event, I also have concluded that my dog is not in the conventional "lawyers and legalese" bun brawls - which IMO consist of a lot of Bravo Sierra, or at least a lot of stuff that is immaterial to me personally. So, to quote that icon of Southern manhood, "Frankly, my dear, I don't give a damn."

-------------------------------------
With those digressions, we return to the topic at hand. There is more to the legislative history than what we find in the media accounts (big surprise).

The "supporting" language was not a committee effort, but a specific amendment by Sessions, support by Schumer and 2 cents by Leahy. So, what Sessions says is very relevant indeed. And here you find the two pages that includes comments by all three.

http://frwebgate.access.gpo.gov/cgi-...3&position=all

http://frwebgate.access.gpo.gov/cgi-...me=2004_record

What they said is not "legalese" (hell, maybe it is, since I understood it); but I can see where two different inferences could be formed. No change in my non-position position - I think this is a toss-up based on the Congressional Record. I've not a clue as to what Judge Urbina will do with this mixed fact and law issue.

[selil]

Now I want to stay away from law school.

[jmm99]

At this point, we might consider parsing the word "supporting"

(second link in post #47)
SEC. ll. CONTRACTOR ACCOUNTABILITY.

Section 3267(1)(A) of title 18, United States Code, is amended to read as follows:

‘‘(A) employed as—

‘‘(i) a civilian employee of—
....
‘‘(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas;

‘‘(ii) a contractor (including a subcontractor at any tier) of—
....
‘‘(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas; or

‘‘(iii) an employee of a contractor (or subcontractor at any tier) of—
....
‘‘(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas;’’.

The Blackwater 5 come (if at all) under the last clause.

I hope we can agree that the word "supporting" is not some odd form of legalese. The interpretive problem is that "support" has multiple shades of meaning in Plain English (my Webster's has 7 shades for the verb, 5 for the noun). Consider "athletic supporter" - jockstrap or sports fan ?

The meaning which will be argued here by the defense will be a structural one - "The foundations support the building", etc., which Schmedlap nicely sums in his post above.

I think the prosecution is attempting to "prove too much." The guards were supporting the State Department. Does Ambassador Crocker answer to Odierno? Or even to Petraeus? If not, then this seems like a pretty clear expression of intent for our policy in Iraq to be one of not a military operation supported by the state department, but of a dual mission where each department has its own mission. DoD and State have two purposes in the same area, just as a police department and fire department have two purposes in the same area. If I'm a security guard at the fire station, then that doesn't mean that I'm supporting the police department.

Jeff Sessions made an interesting comment, but the prosecution has chosen their argument. They're arguing that the contractors were supporting the mission of the Department of Defense. I think the defense can rather effortlessly argue that the DoD is supporting the State Department, not the other way around.

The DoJ argument will be a symbiotic one - "The two drunks supported each other as they staggered down the street", or "The two units supported each other as they advanced in bounding overwatch formation".

I think Judge Urbina will earn part of his salary (*) in deciding this one. I suppose he could find the statute "void for vagueness", but that seems unlikely.

---------------------------------
* "Under 2008 rates, U.S. district judges earn $169,300 annually, while circuit judges get $179,500. Supreme Court judges are paid $208,100 except for the chief justice, who earns $217,400.", article is here, with chart of salaries from 1990-2007.

There are about 1100 Federal judges - so, a possible comparison would be to the comparable number of higher-ranked armed service grades (?).

Given the same law firm and credentials I had in 1968, a 2008 first year associate at that firm would make just short of Judge Urbina's salary (benefits would be roughly the same), data is here - 2nd paragraph from bottom (S&C).

So, while I am not a proponent of raising judges' salaries (given the present financial climate), they are not excessive compared to the private job market at an equal level (I expect Judge Urbina could retire and make a mil or two with the right private law firm; Judge Leon definitely could).

[Polarbear1605]

Always invite a Marine to the party, whether boring or festive, they always add a bit of color to the affair.

Well it certainly looks like the State Department did not think out this security issue and its solution. I am wondering if they looked at any other methods/models besides hiring contractors without a legal structure to keep them accountable. The first one I am thinking about is; the Marine Corps has been providing security for DOS embassy's forever. All security guard detachments report to a Company Commander, usually a Major who has Special Court martial authority, and that also ties them back to the UCMJ. Any issues the embassador has with the Marine gets reported back to the Company Commander and it goes from there. Can a civilian sign away his legal constitutional rights upon employment with the DOS for the UCMJ? Maybe if we call them militia?

The next model (and I realize I am reaching on this one) is a Federal Judge responsible for out of country security contractors (We can station him at a port city in case we catch some pirates while we are mucking about in a foreigh country). I think a Federal Judge gets a Federal Marshal and Federal Marshals can get as many Deputy Marshals as needed or they can afford. I once got the opportunity to watch some Deputy Federal Marshals very effectively handle a Vietnamese Refugee issue in Guam (US Possession) back in 1975. Station the Federal Marshal and deputies in county to handle the investigations when these things happen???

[Stan]

Hey Bob,

Always invite a Marine to the party, whether boring or festive, they always add a bit of color to the affair.

Fully concur

Well it certainly looks like the State Department did not think out this security issue and its solution. I am wondering if they looked at any other methods/models besides hiring contractors without a legal structure to keep them accountable. The first one I am thinking about is; the Marine Corps has been providing security for DOS embassy's forever. All security guard detachments report to a Company Commander, usually a Major who has Special Court martial authority, and that also ties them back to the UCMJ. Any issues the embassador has with the Marine gets reported back to the Company Commander and it goes from there. Can a civilian sign away his legal constitutional rights upon employment with the DOS for the UCMJ? Maybe if we call them militia?

Can't do much with your second para, but this one I have more than a decade of experience with. Goes back to my original post and comments. We all should be under the UCMJ regardless of the contracting agency. Keeps honest folks honest and would preclude all this Bravo Sierra.

Although the Ambassador can ultimately be the single individual to decide your military fate at post abroad, not everything goes back to the CO. The Regional Security Officer (DSS) often weighs in well before the Ambassador needs to. Suffices to say, the USMC has sent her best to posts and the minor infractions that tend to occur are not issues that burn an individual's career, and certainly not something that the CO needs to be informed of. The Detachment Commander has more than enough influence

To finally get around to your real question... Yes, the Ambassador as a civilian can and has in the past trashed an otherwise perfect military career with the stoke of a pen.

Regards, Stan

[Ken White]

To finally get around to your real question... Yes, the Ambassador as a civilian can and has in the past trashed an otherwise perfect military career with the stoke of a pen.

When I was in Iran the Ambassador for a really dumb reason convinced the Beirut Based SG Company Commander to relieve the Tehran Marine detachment NCOIC, an Italian from Boston and send him and two Black Marines back to the States. It was 1970 and said Ambassador desired no Black Marines at his Embassy. Unbelievable.

Four days later, I was the duty NCO and met the embassy flight. Down the ramp walked the same two Black Marines and the largest, blackest Gunnery Sergeant I ever saw. I of course offered 'em a ride to the Marine house. Turns out the former NCOIC reported what had happened, the Asst Cmdt, GEN Lew Walt called for the Gunny whom he knew, told him the story and asked him if he would accept assignment to Tehran. Lew Also sent a new Major to Beirut...

The Ambassador was recalled to DC very quickly, and was replaced permanently by his Deputy. I'd like to report that the Ambassador left the Foreign Service in disgrace but you know better than that...

Sometimes most things work out pretty well, though ...

[jmm99]

PBear
Always invite a Marine to the party, whether boring or festive, they always add a bit of color to the affair.

especially when they are white with a purple tongue. I'd expect that Lew Walt would have liked to have one of them to turn loose on the ambassador.

Anyway, guys, why not keep it simple so that the Marine and the lawyer could understand it. Just go back to using only Marines as DoS security overseas and we do not have to screw with new statutes, courts, etc.