Coauthored by Melina Milazzo

On September 16, 2007, Blackwater Worldwide (now Xe) private security contractors working for the U.S. Department of State shot dead 17 unarmed civilians and wounded 24 more in an unprovoked incident in Baghdad’s Nisoor Square. Amid the political firestorm that ensued, one thing became crystal clear: the United States lacked a coordinated, systematic policy for overseeing private contractors abroad and holding them accountable for serious violent crimes.

Three years later, we’ve seen some progress in U.S. law and policy. Congress has required greater agency oversight and coordination over contractors in Iraq and Afghanistan, and established a means of investigating and reviewing incidents of violence by private security contractors abroad.

But serious gaps in oversight and accountability continue, especially when it comes to holding contractors accountable for serious violent crimes like the ones that took place in Baghdad three years ago. And the U.S. has never created a mechanism for compensating the victims of private security contractors’ crimes.

In a report issued today, Human Rights First provides a snapshot of the legal and regulatory progress made since the Nisoor Square shooting, and identifies key areas where we still need major improvement.

When it came to holding the Blackwater contractors accountable, the Bush administration claimed that the U.S. government had no authority to prosecute private security contractors working for the State Department, as the Blackwater guards were. Although the Obama administration takes a different view, the issue has never been resolved by Congress or the courts.

To date, it remains unclear whether the U.S. government can prosecute contractors who work for any agencies other than the Department of Defense for serious crimes committed abroad. And it’s not clear that the Status of Forces Agreement between Iraq and the United States even allows the Iraqi government to prosecute all private security contractors in its own country for serious crimes committed there.

The Civilian Extraterritorial Jurisdiction Act, or CEJA, currently in both chambers of Congress, would clarif y and expand U.S. criminal jurisdiction over all private contractors working for the U.S. government abroad . The U.S. government also needs to review its agreements with Iraq and Afghanistan and ensure that local law in those countries adequately extends to civilian contractors, so that serious crimes committed do not go unpunished.

The problem isn’t only with prosecuting violent crimes, however. U.S. government agencies don’t even track how many contractors and subcontractors work for them abroad. And the U.S. government still lacks sufficient staff within agencies that rely on private contractors abroad to keep track of contractors’ work and ensure they’re obeying the law. In Iraq, a Special Inspector General for Iraq Reconstruction found that the Defense and State Departments still need to improve their investigations of serious incidents. And in Afghanistan, private security contractors for the State Department are not even required to report serious incidents (such as attacks, injuries, and death) involving contractors to the government.

Despite the troubling lack of oversight, the United States is dramatically increasing its reliance on private security contractors. With the U.S. drawdown in Iraq, the Department of State plans to more than double the number of private security contractors it employs, from 2,700 to 7,000. And an additional 50,000 contractors are expected to be needed to support the Afghan surge. Meanwhile, the jurisdictional gap over non-Defense contractors widens.

“We cannot win a fight for hearts and minds when we outsource critical missions to unaccountable contractors,” said Barack Obama, then a U.S. Senator, shortly after the Nisoor Square shootings. President Obama was right then. The U.S. has both a moral responsibility and a national security interest in ensuring that the contractors it fields abroad operate in an effective, safe and law-abiding manner.

On the last day of 2009, federal district court judge Ricardo Urbina dismissed homicide charges against five former Blackwater security guards involved in a shooting that killed fourteen Iraqi civilians in 2007. Judge Urbina’s decision cites egregious prosecutorial misconduct by the federal prosecutors handling the case as the reason for the dismissal. The dismissal comes at the end of a year that saw at least a dozen cases of federal prosecutorial misconduct, including the well known Ted Stevens fiasco. These cases and others reinforce an emerging consensus that we must do more to ensure that our prosecutors live up to the standards of professionalism and fairness on which our system depends.

There's more...

Earlier this month, when a federal judge dismissed manslaughter judges against five Blackwater (now Xe) operatives for the brutal killing of innocent Iraqi civilians, I had this to say:

This is the face of the United States to the rest of the world: A nation that will beat up on weaker states. A nation that can’t do its own dirty work, pretending instead that the perpetrators are rogue contractors and thus shifting the blame. A nation that refuses to hold itself accountable and puts potential legal loopholes ahead of justice. THIS is the example we set for the fledgling democracies we claim to have created? This is how we teach republican principles? …

Most importantly, Blackwater is quite literally getting away with murder.  Or as the rest of the world will see it, especially in Baghdad, America is letting Blackwater get away with murder. And to the rest of the world, that’s you, and that’s me. I don't know who to be more ticked at – the Justice Dept. lawyers [who bungled the case, ala Ted Stevens] or the judge. No matter who's at fault, however, this is about the worst possible note on which to begin a new year.

Well here’s some good news: Vice President Joe Biden announced today that the government will appeal the dismissal. I’m not the law student on this blog so I don’t have the wherewithal to know if the case for the appeal is strong enough, but I do know that true justice isn’t always a legal thing, and at least today our administration is pursuing true justice.

Blackwater security contractors were guarding U.S. diplomats when the guards opened fire in Nisoor Square, a crowded Baghdad intersection, on Sept. 16, 2007. Seventeen people were killed, including women and children, in a shooting that inflamed anti-American sentiment in Iraq... The case fell apart when a federal trial judge in Washington, Ricardo Urbina, said in a Dec. 31 ruling that the Justice Department mishandled evidence and violated the guards' constitutional rights. Prosecutors now face difficult odds getting an appeals court to reinstate the case.

The dismissal outraged many Iraqis, who said it showed the Americans considered themselves above the law. The Iraqi government began collecting signatures for a class-action lawsuit from victims who were wounded or lost relatives.

Lawyers for two of the Blackwater guards — Donald Ball, a former U.S. Marine from West Valley City, Utah, and Dustin Heard, a former U.S. Marine from Knoxville, Tenn. — sharply criticized the U.S. government's planned appeal.

Horrifying news today: a judge has dismissed all charges related to 2007’s Blackwater (now Xe) murders in Baghdad. From the New York Times:

In a significant blow to the Justice Department, a federal judge on Thursday threw out the indictment of five former Blackwater security guards over a shooting in Baghdad in 2007 that left 17 Iraqis dead and about 20 wounded.

The judge cited misuse of statements made by the guards in his decision, which brought to a sudden halt one of the highest-profile prosecutions to arise from the Iraq war. The shooting at Nisour Square frayed relations between the Iraqi government and the Bush administration and put a spotlight on the United States’ growing reliance on private security contractors in war zones.

Investigators concluded that the guards had indiscriminately fired on unarmed civilians in an unprovoked and unjustified assault near the crowded traffic circle on Sept. 16, 2007.

I think the Times’ lede should have been “In a significant blow to justice,” not “the Justice Department.” Or perhaps “a significant blow to Iraq.” Such headlines would have been more accurate, putting the focus on the facts rather than the process.

I don’t have a whole heck of a lot to say about this, other than to make three quick observations. One, this reminds me of the Justice Department’s case against the corrupt former Sen. Ted Stevens (R-AK) in that it shows the importance of getting an investigation right if serving justice is the goal. Two, this is the face of the United States to the rest of the world: A nation that will beat up on weaker states. A nation that can’t do its own dirty work, pretending instead that the perpetrators are rogue contractors and thus shifting the blame. A nation that refuses to hold itself accountable and puts potential legal loopholes ahead of justice. THIS is the example we set for the fledgling democracies we claim to have created? This is how we teach republican principles?

Most importantly, three, Blackwater is quite literally getting away with murder.  Or as the rest of the world will see it, especially in Baghdad, America is letting Blackwater get away with murder. And to the rest of the world, that’s you, and that’s me. I don't know who to be more ticked at - the Justice Dept. lawyers or the judge. No matter who's at fault, however, this is about the worst possible note on which to begin a new year.

Indeed, a second New York Times story documents Iraqi outrage:

Many Iraqis also viewed the prosecution of the guards as a test case of American democratic principles, which have not been wholeheartedly embraced, and in particular of the fairness of the American judicial system…

“What are we — not human?” asked Abdul Wahab Adul Khader, 34, a bank employee who was shot in the hand while driving his car through the traffic circle. “Why do they have the right to kill people? Is our blood so cheap? For America, the land of justice and law, what does it mean to let criminals go? They were chasing me and shooting at me. They were determined to kill me.”

Sami Hawas, 45, a taxi driver, was shot in the back during the episode and is paralyzed. “I can’t even think of words to say,” Mr. Hawas said after being told about the court ruling. “We have been waiting for so long. I still have bullets in my back. I cannot even sit like an ordinary human being.”
 
Ali Khalaf, a traffic police officer who was on duty in Nisour Square at the time and aided some of the victims, was furious. “There has been a cover-up since the very start,” he said. “What can we say? They killed people. They probably gave a bribe to get released. This is their own American court system.

Hey Iraq – happy New Year.

Here is the Friday, January 1st, 2010 edition of what's making news and interesting reads from around the world.

Iceland Votes to Repay Billions
Iceland's parliament narrowly approved by 33 to 30 vote a repayment scheme to pay back 3.4 billion pounds ($5 billion USD) to Britain and the Netherlands after the Icesave bank collapsed in late 2008 in the wake of the global financial crisis. The money will reimburse the British and Dutch governments which stepped in to compensate depositors with Icesave after its parent bank Landsbanki failed last year. The bank's collapse affected more than 320,000 savers. There has been strong opposition to the measure in Iceland, amid fears the country would not be able to afford repayments. But the leftist government of Prime Minister Jóhanna Sigurðardóttir hopes the move will help boost the country's bid to join the European Union and repair its battered economy.

Charges Against Five Blackwater Employees Dismissed
A federal judge has dismissed all charges against five Blackwater Worldwide security guards charged in a deadly Baghdad shooting. More from the New York Times. In Iraq, the news was received with disbelief, anger and bitter resignation.

US Drone Strike in North Waziristan
The second US drone strike in as many days has killed three militants in North Waziristan, part of the Tribal areas of Pakistan. The unmanned US predator drone fired two missiles against a suspected militant hideout in Ghundikala village, 15 kilometres east of Miramshah, the main town of North Waziristan and close to the Afghan border. The story in Pakistan's Dawn newspaper.

Israeli Settlement Construction Continues Unabated
The Israeli newspaper Haaretz reports that despite a temporary ban on construction in Israeli settlements in the West Bank, hundreds of housing units remain under construction in isolated settlements.

Germany Inc. - A Radical Restructuring Needed
The German news magazine Der Spiegel finds that German economy performed "astonishingly well" against the backdrop of the global financial crisis in 2009. Still the staff writers of Der Spiegel believe that Germany "will need to lay the foundations for a radical restructuring" in 2010 if the country is to " fend off powerful new competitors from China and India." They ask if Germany needs a new business model. It's a question we might ask here in the United States.

DPRK Calls for an End to "The Hostile Relationship"
The New York Times reports that  North Korea called for an end to “the hostile relationship” with the United States, issuing a New Year’s message that highlighted the reclusive country’s attempt to readjust the focus of six-party nuclear disarmament talks.

In an editorial carried by its major state media outlets, North Korea said that its consistent stand was “to establish a lasting peace system on the Korean peninsula and make it nuclear-free through dialogue and negotiations.” The editorial added that “the fundamental task for ensuring peace and stability” was “to put an end to the hostile relationship” with the United States.

The sequence of easing tension with Washington, establishing a peace regime and then denuclearizing the Korean peninsula has been shaping up as the North’s policy approach before it re-engages in talks about giving up its nuclear weapons, according to officials and analysts in Seoul.

However, the Korea Times reports that a South Korean think tank published a paper arguing that North Korea may detonate a third nuclear device and provoke border clashes to escalate tension on the Korean Peninsula next year. The Korea Institute for Defense Analyses (KIDA) reported that through a third nuclear test, Pyongyang could show the world that it has no plans to scrap its atomic weapons program. On Thursday, President Lee Myung-bak noted that although there was little progress in inter-Korean relations in 2009, he believe that his government has laid the groundwork for developing relations in a positive direction.