Jeremy Scahill - Blackwater

While a fierce debate over the use of private forces raged in the United States, legal scholars debated what—if any—court could hold Blackwater and other mercenary forces accountable for their crimes in Iraq. Not only had the State Department’s immunity offerings early on in the Nisour Square investigation potentially compromised the chance of prosecution, as the Justice Department acknowledged in early 2008, but the bottom line was that Blackwater operated in a legal gray zone, seemingly outside the scope of both U.S. civilian and military law and immune from Iraqi law. 164While a federal grand jury was convened in late 2007 to investigate, serious questions about the potential for a successful prosecution abounded. Many legal analysts concluded that U.S. civilian law on contractors abroad covered only contractors working for the military—Blackwater worked for the State Department.

While the House voted shortly after Nisour Square to expand the law to apply to all contractors, it could not be applied retroactively and still had to clear the Senate. The Bush administration “strongly oppose[d]” the legislation, saying in a statement released the day after Prince appeared before Waxman’s committee that the law would have “intolerable consequences for crucial and necessary national security activities and operations.” 165A court-martial seemed unlikely and could possibly meet resistance from civil liberties advocates who would view it as a step toward applying military law to civilians (though some would argue that such a label should not apply to armed mercenaries). Washington was clear it would not hand over U.S. personnel to Iraqi courts, and the Bremer-era ban on Iraq prosecuting contractors remained in place. Some analysts believed the Justice Department would attempt to prosecute at least one Blackwater operative for Nisour Square—indeed, Slough was identified as being “at the center of the investigation”—as a token symbol of accountability. But because of the way the law governing contractors was phrased at the time of the killings, the possibility of failure was significant. Some legal experts argued that the shooters could be prosecuted for war crimes under U.S. law, but that would require not only political will from the Bush administration but also a de facto indictment of the whole system of privatized war, which seemed highly unlikely to happen. The possibility that private soldiers could face prosecution, particularly for war crimes, would also have presented a major disincentive for mercenary companies to work for the Bush administration. “There clearly is jurisdiction and a basis to act against them under the War Crimes Act,” said military law expert Scott Horton. “But the Bush administration doesn’t want to go there, doesn’t want to touch that. I think they’ve made that point clear.” 166The State Department’s acting Assistant Secretary of State for the Bureau of Diplomatic Security, Gregory Starr, admitted, “It might be the case that Blackwater can’t be held accountable” for the killings. 167

Some of the Iraqi victims’ families and Nisour Square survivors did not want to wait for Congress and the Bush administration to resolve these questions and didn’t have faith justice would be done. So they took the only action they could—they sued Blackwater, not in Iraq but in Washington, D.C.

Days after the shootings, some of the Iraqi survivors and victims’ families contacted local Iraqi human rights lawyers who worked with U.S. law firms that had filed cases against other Iraq War contractors for alleged abuses. Attorneys from the Center for Constitutional Rights and two other firms, led by attorney Susan Burke of Burke O’Neil, began interviewing survivors, witnesses, and victims’ families. CCR was no stranger to cases involving contractors’ crimes in Iraq, having filed a major lawsuit against some of the private forces who were among the alleged perpetrators of the torture and abuse at Abu Ghraib Prison. Burke spearheaded that case as well. “[The Nisour Square families] came to us because they know of our work representing the torture victims at Abu Ghraib, and they asked us whether it would be possible to try to get some form of justice, some form of accountability, against this rogue corporation,” Burke recalled. 168

On October 11, 2007, Blackwater was sued by Iraqi civilians. Burke and CCR filed the groundbreaking lawsuit in federal court in Washington, D.C., on behalf of five of the Iraqis killed at Nisour Square and two of the survivors wounded in the attack. The suit alleged that Blackwater’s actions amounted to “extra-judicial killing” and “war crimes.” 169It was filed in part under the Alien Tort Statute, which allows for litigation in U.S. courts for violations of fundamental human rights committed overseas.

“Blackwater created and fostered a culture of lawlessness amongst its employees, encouraging them to act in the company’s financial interests at the expense of innocent human life,” the suit charged. “This action seeks punitive damages in an amount sufficient to punish Erik Prince and his Blackwater companies for their repeated callous killing of innocents.” The suit was believed to be the first U.S. case brought by Iraqi civilians against a private “security” company.

It alleged that “Blackwater heavily markets the fact that it has never had any American official under its protection killed in Iraq” and “views its willingness to kill innocent people as a strategic advantage setting Blackwater apart and above other security companies.” Blackwater, the suit alleged, “was and is willing to kill innocent bystanders in order to preserve that ‘no death’ statistic for marketing purposes. Blackwater benefits financially from its willingness to kill innocent bystanders.”

Among the plaintiffs were the estates of the first victims, Ahmed Hathem al-Rubaie and his mother, Mahasin. “She was shot to death by Blackwater shooters as she cradled her dead son’s body, calling for help,” the suit alleged. The three other Iraqis named in the lawsuit who were killed on September 16—Oday Ismail Ibraheem, Himoud Saed Atban, and Usama Fadhil Abbass—had fourteen children among them, one an infant, according to Burke.

“The rule of law in every civilized nation in the world is that there is no legitimate reason to indiscriminately kill innocent bystanders,” Ratner said. “We believe that the acts of Blackwater at Nisour Square were deliberate, willful, intentional, wanton, malicious, and oppressive, and constitute war crimes. Blackwater is harming the United States by its repeated and consistent failure to act in accord with the law of war, the laws of the United States, and international law.” 170

Among the allegations in the suit:

• Despite Blackwater’s claim that it is a defensive force, its “mobile armed forces” are “consistently referred to by Blackwater management and employees as ‘shooters.’”

• Blackwater should not have been at Nisour Square and defied orders not to go there. At the time of the shootings, “Blackwater shooters were not protecting any State Department official. The Blackwater shooters had already dropped off the official under its protection prior to arriving at Nisour Square.” The “Tactical Operations Center” (manned by both Blackwater and State Department personnel) “expressly directed the Blackwater shooters to stay with the official and refrain from leaving the secure area. Blackwater personnel were “obliged” to follow the directive and did not.

• “Blackwater routinely sends heavily-armed ‘shooters’ into the streets of Baghdad with the knowledge that some of those ‘shooters’ are chemically influenced by steroids and other judgment-altering substances. Reasonable discovery will establish that Blackwater knew that 25 percent or more of its ‘shooters’ were ingesting steroids or other judgment-altering substances, yet failed to take effective steps to stop the drug use. Reasonable discovery will establish that Blackwater did not conduct any drug-testing of its ‘shooters’ before sending them equipped with heavy weapons into the streets of Baghdad.” (Blackwater rejected the steroid allegations, saying its forces face drug tests during their application process and on a quarterly basis while working for the company. A spokesperson said, “Blackwater has very strict policies concerning drug use, and if anyone were known to be using illegal drugs, they would be fired immediately.”)