A Second Hand Conjecture

My tolerance for sheer bloody-mindedness is actually pretty high. If someone wants to insist that they are right despite every fact being against them, then that’s their problem as far as I’m concerned. When such persons continually lob snarky, and completely counterfactual bombs my way, however, sooner or later I’m going to respond. I guess that time is now.

Fellow contributer to ASHC, Joshua Foust, does not like Blackwater. I know this because he takes every opportunity to brand them as “murderers” and out-of-control thugs, always with that extra special dose of sneer that makes his posts so illuminating. Upon me pointing out that casually calling someone a murderer raises serious legal issues, Josh became very upset. My motives were questioned, my integrity lambasted, and my all around general mental well-being challenged as being two eggs short of an egg and cheese biscuit. Hold the biscuit.

Despite the verbal jousting (Fousting?), Joshua agreed that perhaps he had been a bit rash in labelling someone a murderer without actually backing it up in any way whatsoever.

I think I’ll just add that P.M. Nouri al-Maliki seems to be under the impression Blackwater employees have a history of killing civilians in Iraq (he does not say “murdering,” and you’ll get no argument from me - I said above you two were both right I shouldn’t sling that around without caveats).

Fair enough. The only point I wanted to get across was that we shouldn’t be slinging defamatory accusations around that can’t be proved.

As a side issue, Josh insisted that Blackwater and other PMC’s are completely outside the purview of any laws holding them accountable for the actions of its employees in Iraq. In response I linked to and quoted from such laws. In particular, the War Crimes Act:

(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Upon being confronted with such facts, Josh initially dissembled:

Just like how there are laws against fraud, yet the numerous Iraqi contractors who have stolen hundreds of millions of dollars (sorry, “been unable to account for hundreds of millions of dollars”) have yet to face any charges?

Gimme a break. You know as well as I do that the executive branch will not press charges against anyone accused of committing a crime in Iraq.

Not being one to kick a man when he’s down, I tried to simply let the whole thing go. I had made my point, and Josh had agreed, that accussing someone of murder, when that person has neither been tried, convicted nor even charged with such offense, is not a good idea.

Since then, however, Josh decided to backtrack and has been systematically trying to prove that there are in fact no laws under which civilian contractors can be prosecuted if they commit crimes in Iraq. How does Josh know? Because Stephen Colbert told him so!:

Somehow, Steven Colbert got it exactly right on the absurdity of pretending there are laws to restrict the actions of PMCs. That surprises me.

Any of you who actually followed Josh’s link were probably surprised as well since Colbert says absolutely nothing about Blackwater when you click through. Genius debater that he is, Josh linked to the wrong the video (here’s the right one).

Other examples of Josh’s newfound legal skillz can be found in the same post as his mis-linked Colbert enlightenment:

Meanwhile, Blackwater is the most trigger happy of all the other State Department security firms. Huh. One would almost be forgiven for thinking they’re uncontrollable maniacs with no restraint and serve as a functional roadblock to the U.S.’s mission there. But we don’t want to go slinging about accusations we can’t back up.

And here:

One more quote from that story: “An Army brigadier general said finding a way to prosecute security companies for violations was more crucial than regulating them. In Iraq, they were given immunity under a regulation, Order 17, crafted by Iraq’s U.S. overseers after the 2003 invasion.” But really, pay attention to “skeptics“, who insist there are laws to prosecute them, and because not a single PMC employee has been prosecuted for violence in four years of dozens of accusations or murder, rape, and theft, then we can reasonably conclude no crimes have actually been committed. It’s only logical.

Yeah, ‘cuz that’s the argument.

Unfortunately for Josh, he’s not just wrong on defamation, he’s also wrong on the laws that can hold Blackwater employees accountable:

Current U.S. Law Providing for Jurisdiction Over Contractor Crime Overseas

The U.S. Justice Department currently has the authority to prosecute civilian contractors for certain crimes committed outside the United States under several U.S. laws, including:

The War Crimes Act. This law, 18 U.S.C. § 2441, criminalizes certain war crimes committed inside or outside the United States by anyone who is a member of the armed forces or is a U.S. national. Under the Act, a war crime includes conduct defined as a grave breach of the Geneva Conventions, or constituting a violation of common Article 3 of the Conventions. The latter prohibits, inter alia, cruel treatment, torture, and outrages upon personal dignity, in particular humiliating and degrading treatment.

That’s from a statement delivered to the House Committee on the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security by Erica Razook of Amnesty International. There are other laws mentioned for holding contractors accountable as well, so go ahead and click the link to read all about it. If it looks vaguely familiar to you, the you’re probably a reader of mine.

Now, Ms. Razook is no cable comedy show guru, but she can apparently read. Like Josh, she wants to see Blackwater and its employees tied to a spit and held over a very hot fire. Or, at least, she wants them to be held accountable, which is something I’d like to see as well. Unlike Josh, she recognizes that there are laws in place to accomplish such an end. It must be all those seconds of research done in a manner designed to discover the facts of the issue rather than to confirm her biases. Hmmm, it seems like there might be a lesson there for someone.

Moving along.

It seems there are others who are aware of the fact that U.S. laws are in place to prosecute civilians who commit crimes overseas, including John Ashcroft:

Last Thursday [May 6, 2004], Attorney General John Ashcroft announced that the Justice Department had jurisdiction to prosecute civilians implicated in crimes in Iraq. But whether these prosecutions will actually take place is far from clear ….

The most likely option for American civilian contractors implicated in Iraqi abuses is prosecution in the U.S. federal courts. There are two federal laws that could be used, depending on the offense at issue.

The most serious crimes could be prosecuted under the War Crimes Act of 1996. War crimes, as defined in the law, include grave breaches of the 1949 Geneva Conventions (such as torture or inhuman treatment) and violations of the Conventions’ common article 3 (such as “outrages upon personal dignity” and “humiliating and degrading treatment”).

Possible penalties for conviction under the law include imprisonment for life, for a term of years, or, if the victim of the crime dies, the death penalty.

Other crimes could be prosecuted under the Military Extraterritorial Jurisdiction Act (MEJA). MEJA, which was enacted primarily to protect American soldiers and their dependents living abroad, covers federal crimes punishable by more than one year’s imprisonment. Passed in 2000, the law is still untested.

I think a recap is in order. Josh contends that there are no laws to prosecute civilian contractors in Iraq. I have presented numerous examples. Josh ignores those examples and tries to slay strawman he accuses of fighting on my behalf. I disabuse Josh of his fanciful notions.

Any questions?

Now if Josh will just spend even half the time he’s used to take potshots at me in an effort to honestly uncover why no civilian contractors have been tried … well, except this one … for abuses overseas, then maybe we can get somewhere. Until then, class will be open when I feel like doing some more schooling.

It really does grow tiresome having to point this this stuff out.

Technorati Tags: Blackwater, contractors, civilian, Iraq, legal accountability, War Crimes Act, MEJA

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