Prosecuting Blackwater Personnel

[gurutoo]

http://jurist.law.pitt.edu/forumy/20...-personnel.php

Does the United States have extraterritorial legislation that would currently allow prosecution of Blackwater personnel who are reasonably accused of the unlawful killing of persons in Iraq? If so, would prosecution be possible in a federal district court or certain military tribunals? The general answer to both these questions is "yes."

There are several possible statutory bases for prosecution. One that is more problematic would involve use of the Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261. The statute applies extraterritorially to “whoever engages in conduct outside the United States” that would be conduct criminally proscribed had the conduct been engaged “within the special maritime and territorial jurisdiction of the United States,” but the conduct of those who are not members of the armed forces of the United States would have to have been engaged in by a person who was (1) “employed by” U.S. armed forces, which is not typically the case with Blackwater personnel who operate under the auspices of the Department of State, or (2) “accompanying” U.S. armed forces outside the United States. The primary issue might be whether or not Blackwater personnel are “accompanying” the armed forces because of the widespread use of Blackwater personnel in an active theater of war to perform security functions that serve or supplement the overall mission of the military and the United States more generally during the war in Iraq. Where the U.S. is an occupying power, this type of accompaniment may be more readily understood. On the other hand, would they “accompany” the armed forces only where a specific mission was coordinated with U.S. military efforts?

Far easier would be prosecution under two sets of federal legislation that allow prosecution of relevant war crimes in federal district courts. The first is the War Crimes Act, 18 U.S.C. § 2441. This statute allows prosecution, for example, of those who are U.S. nationals who commit a relevant war crime outside the United States. Listed war crimes include some violations of the 1907 Hague Convention No. IV, including killing or wounding “treacherously,” killing or wounding those who have no means of defense who have “surrendered,” and use of weapons or bullets of a nature to cause unnecessary suffering. More clearly at stake is the statutory listing of violations of common Article 3 of the 1949 Geneva Conventions, which expressly covers “violence to life and person, in particular murder of all kinds” of “persons taking no active part in the hostilities.” Today, customary international law reflected in common Article 3 provides a set of minimum duties, rights, and competencies in any armed conflict, although it was originally designed to apply to cases of insurgency. The Supreme Court’s opinion in Hamdan and the concurring opinion of Justice Kennedy generally affirm this point about Geneva law.

The reach of common Article 3 (and the customary international law of war reflected therein) to any person who engages in proscribed conduct against any person who is not taking a direct part in armed hostilities is one reason why it is appropriate to prosecute members of al Qaeda who violate the laws of war in Afghanistan or Iraq, thus demonstrating a certain irony perhaps with respect to the reach of federal law to both Blackwater and al Qaeda personnel “if the facts fit.” Nonetheless, every violation of common Article 3 (and any other law of war) is a war crime over which there is universal jurisdiction and a universal duty to initiate prosecution or extradite. It is also of interest that since members of Blackwater and members of al Qaeda are not members of the regular armed forces of a party to an armed conflict, they are not “combatants” [see, e.g., Geoffrey S. Corn, Murky “Blackwater’ and the Direct Participation Dilemma, previously in JURIST], they are not entitled to combatant immunity with respect to the killing of persons who are lawful military targets (such as those who are taking an active part in hostilities), and they are unprivileged fighters who are subject to prosecution for murder, manslaughter, and other crimes under relevant domestic law (e.g., Iraqi or U.S. laws, except for any immunity that might pertain with respect to Iraqi law). Contrary to the views of this Administration, however, merely fighting as an unprivileged fighter is not a war crime.

Another set of federal laws allows prosecution of any violation of the laws of war as offenses against the laws of the United States in the federal district courts. As recognized by the Supreme Court in cases such as Ex parte Quirin and In re Yamashita, the precursor to 10 U.S.C. § 818 incorporates the laws of war by references as offenses against the laws of the United States. Under 18 U.S.C. § 3231, all offenses against the laws of the United States can be prosecuted within the federal district courts, whether or not there is concurrent jurisdiction in any military tribunal. These points have been documented in 50 Tex. L. Rev. 6 (1971) and elsewhere. It would also be possible to prosecute civilians in a properly constituted military commission in a war-related occupied territory and, possibly, in a general courts-martial in a theater of war in time of war if such a prosecution can survive a Fifth Amendment challenge under the Supreme Court’s decision in 1957 in Reid v. Covet (which seemed to emphasize that that case addressed the impropriety of military tribunal jurisdiction over U.S. civilians in time of peace).

As documented in my recent book Beyond the Law, however, “for more than five years the Bush administration has furthered a general policy of impunity by refusing to prosecute any person of any nationality under the War Crimes Act or alternative legislation, the torture statute, genocide legislation, and legislation permitting prosecution of certain civilians employed by or accompanying U.S. military forces abroad.” For example, the Administration refuses to prosecute memo-writers who have abetted what President Bush admitted in September 2006 is his “program” of (1) secret detention (or forced disappearance and the per se war crime and “grave breach” of Geneva law involving the transfer of persons out of occupied territory), and (2) “tough” interrogation tactics (which are violative of several treaties of the United States and customary international laws, as documented most recently in “Beyond the Law”), and those who authorized such criminal activity during what a former insider has described as a “common, unifying” plan devised by the “inner circle” to engage in “coercive interrogation.” Only a few of the direct perpetrators of the common plan have been prosecuted in military fora.

Finally, each time a Blackwater convoy roars through Iraqi streets, ignoring Iraqi traffic laws, bumping into cars, and at times shooting people, the conduct symbolizes the lack of law and order and safety from violence that is generally extant in Iraq – a symbol of the failure of the Administration’s policies in Iraq.

[19kArmoredKnight]

wow you just legitimized calling bush a war criminal and showed the law that proves it
thats kinda nutty

I dont understnad why we use blackwater or why anyone could claim paying some 8 times what an E-6 makes in the army saves money when they do the same thing an E-6 or lower Infantry or MP would do. will someone explain that to me

[potter]

Originally Posted by 19kArmoredKnight

wow you just legitimized calling bush a war criminal and showed the law that proves it
thats kinda nutty

I dont understnad why we use blackwater or why anyone could claim paying some 8 times what an E-6 makes in the army saves money when they do the same thing an E-6 or lower Infantry or MP would do. will someone explain that to me

Because they can do anything they want above international law. Murder, assasination, etc...

[clownboy]

Originally Posted by 19kArmoredKnight

I dont understnad why we use blackwater or why anyone could claim paying some 8 times what an E-6 makes in the army saves money when they do the same thing an E-6 or lower Infantry or MP would do. will someone explain that to me

We don't have to pay to train, equip, feed or insure them. We don't have to pay them disability for life if they're injured.

[Gilles de Rais]

and, probably, you can reduce the amount of US soldiers dying... Contractors don't show up in the statistics...

and you can deny stuff that go wrong... "It is not my department", "To the best of my recollection, I do not remember saying that", "Aaah, that's not us, please see the relevant authorities"... I am sure it will make for some good Hollywood blockbusters in a decade... Recovering those lost billions, one box office at the time...

[clownboy]

Also the Dplomatic Corps often like to appear to be without a military escort when going about their duties. In some discussions there's a difference in having bodyguards as opposed to soldiers at your back.

[Gilles de Rais]

Originally Posted by clownboy

Also the Dplomatic Corps often like to appear to be without a military escort when going about their duties. In some discussions there's a difference in having bodyguards as opposed to soldiers at your back.

When i heard that they were suppose to protect diplomats, i said to my friend: 'Another Bush lies, right there. It is a fact that there is no US diplomats in Iraq...'

[Uplifter]

Originally Posted by 19kArmoredKnight

wow you just legitimized calling bush a war criminal and showed the law that proves it
thats kinda nutty

I dont understnad why we use blackwater or why anyone could claim paying some 8 times what an E-6 makes in the army saves money when they do the same thing an E-6 or lower Infantry or MP would do. will someone explain that to me

The reason there are now more 'security personnel' in Iraq than military is because if GWB wanted to increase the military presence to the same level, he would need to bring back conscription.

[Gilles de Rais]

I don't know about conscription but, yeah, that too...

Overall, it just makes perfect political sense... given that the US is fed up with footing the Iraq bill in soldiers' lives... and prefer to waste money...

[gurutoo]

Originally Posted by 19kArmoredKnight

wow you just legitimized calling bush a war criminal and showed the law that proves it
thats kinda nutty

"Nutty" for me to post the truth?

[Gilles de Rais]

i think it meant it as a compliment...

[19kArmoredKnight]

Didnt mean it like that. that really says something when our president can even be connected to a term such as "war criminal"
its not surprising though I mean look at what we've done in South America if you think
what we are doing with Insurgents is sick. and under the premise that all roads should lead to the top of the mountain would make most of the presidents we've had in the past century war criminals.

[Anonymous Idiot Savant]

Originally Posted by clownboy

We don't have to pay to train, equip, feed or insure them. We don't have to pay them disability for life if they're injured.

Well I don't know what sort of healthcare and 401K options these corporations offer their mercs, but I'm pretty sure we've paid for all the rest when the President handed out all those no bid contracts worth billions of dollars.

Originally Posted by 19kArmoredKnight

I dont understnad why we use blackwater or why anyone could claim paying some 8 times what an E-6 makes in the army saves money when they do the same thing an E-6 or lower Infantry or MP would do. will someone explain that to me

Its simple really. Without the 130-180,000 Mercs in Iraq right now there is no more Iraq war. Its why they don't seem to have any accountibility for the deaths they cause and why the US has been stonewalling the Iraqi governments request to have these groups expelled from Iraq for years now. (LOLDEMOCRACY AMIRITE?!)

It also goes to show just how different this country is today from when it first started up.

A paramilitary like this, of this size, would've seen thousands of people storming the White House and decorating the trees out back with the current administration. These days though, "meh".

[19kArmoredKnight]

Ok I need an opinion whatch these cute little kitty cats heh they seem pretty on the ball.

http://www.youtube.com/watch?v=1Khut8xbXK8

creepy resemblence the iraq war has to this well known point in history

http://www.youtube.com/watch?v=5LctoUV-tag

[Neko]

Ahhh! Kitties!

Tit for tat:

http://www.youtube.com/watch?v=vdQj2ohqCBk

*See, I said I'd watch videos posted here if they had kittens in.

[bhumikag]

outsourcing ur dirty job to hired guns should be stopped. companies like blackwater going around shooting people is only making things harder for US and the troops. why can't the ivy educated people in the admin see this?? this is nuts!!

bhumika
politics desk,Voxant Newsroom

[clownboy]

Originally Posted by Anonymous Idiot Savant

It also goes to show just how different this country is today from when it first started up.

A paramilitary like this, of this size, would've seen thousands of people storming the White House and decorating the trees out back with the current administration. These days though, "meh".

Goes to show you don't know much about US history. We've used militias for hire since the days of the revolution.

And btw, way back when - there wasn't a White House until John Adams.

[suedanim]

Originally Posted by clownboy

Goes to show you don't know much about US history. We've used militias for hire since the days of the revolution.

And btw, way back when - there wasn't a White House until John Adams.

We may have used them then clownboy. But, we evolved a National Guard, local and state law enforcement and armies of volunteer organizations. The people in those organizations, law enforcement, national guard, ect. have a reliable history and trust with the American people. And they have something else very important these rogue thugs from Blackwater do not have, a strong disciplanary training and OVERSIGHT, which we all have come to know and rely upon in times of need.

The day will come clownboy when you will come to regret defending these people and thise organization. I seriously cannot believe that you can sit there and defend the use of these people either militarily in Iraq and the torture chambers we operate or in American cities. But, then again, your approach to this is purely from a partisan need to defend anything and everything this administration does no matter how horribly wrong it is.

You and thanaatos... two peas in a pod.

[Anonymous Idiot Savant]

Originally Posted by clownboy

Goes to show you don't know much about US history. We've used militias for hire since the days of the revolution.

You aren't seriously comparing Blackwater to the citizen milita are you?

Even the Hessians weren't really mercenaries in the modern sense of the word. They weren't professionals that fought for money, they were conscripts, debtors, criminals, etc.... pay was poor and the vast majority of their spoils went back to their king.

Also when the war started there was obviously no professional army or navy on the American's side, it was always a work in progress, but trying to compare that to whats happening in Iraq is just silly.

[clownboy]

Originally Posted by suedanim

The day will come clownboy when you will come to regret defending these people and thise organization. I seriously cannot believe that you can sit there and defend the use of these people either militarily in Iraq and the torture chambers we operate or in American cities. But, then again, your approach to this is purely from a partisan need to defend anything and everything this administration does no matter how horribly wrong it is.

Pot, kettle, black Sue. My point is that you exaggerate situations that you believe paints this administration as "eViL" and as the discussion goes on, the subject is further demonized until it gains gargantuan proportions of evilness. You make insurmountable mountains out of foothills to suit your hatred.

I don't think I've defended their use (Blackwater) militarily in Iraq, have I? I've defended their traditional use by the DipCorps. In truth I have no problem with their use militarily if the military finds the specialized necessity. BUT as I have said over and over again in the many threads spun off this subject, accountibility and oversight are the keys.

I've never defended "torture chambers", but you and I and the rest of the world all disagree on what constitutes torture. My position has always been, set a standard and stick to it. Prosecute anyone who colors outside the lines.

I have no problem with Britney Spears or Bill Gates, or anyone, hiring private security services in the USA - even though we have highly trained law enforcement personnel. I also have no problem with a city or state doing the same to solve a temporary need.

You concerns about their training are bogus and totally without merit. Think about where these folks are hired from - they come in with all that military training you wanted, and then get more.