WASHINGTON, Sept. 20 (UPI) -- Even though the commission investigating the alleged indiscriminate shooting by Blackwater employees over the weekend has only just been stood up, some voices are already rushing to judgment, condemning the contractors as cold-blooded “mercenaries.”
All of this is entirely predictable, though not necessarily unwarranted. It goes to show that four years after private security contractors first started to assume a major role in Iraq, the way they operate is still poorly understood.
Much of this is due to the industry itself. Companies, when not contractually bound by the clients they protect not to discuss their activities, tend to be distrusting of the news media.
Partly as a result, much of the news reporting about the current imbroglio is wrong.
Monday, for instance, news organizations reported that the Iraqi government jerked Blackwater’s license to operate in Iraq.
In fact, it cannot, because the Moyock, N.C.-based company does not have or need a license.
Blackwater, along with two other major private security contractors, DynCorp and Triple Canopy, were jointly awarded the Worldwide Personal Protective Services contract by the U.S. State Department in 2004.
This is a contract for the protection of U.S. diplomats -- and certain high-level foreign government officials whenever the need arises. The contractors doing this work are considered State Department employees and thus enjoy the same immunity from prosecution as any other State Department employee in a foreign country. They do not require a license.
A Sept. 1 report from the Iraqi Ministry of Interior confirms this. It lists all the licensed foreign and Iraqi private security companies operating in the country. There is no sign of either Blackwater or DynCorp, though Triple Canopy is included.
This reflects a deliberate business strategy by Blackwater and DynCorp to put all their contract eggs into the single State Department basket.
Triple Canopy, however, chose to be more diversified and sought out other commercial work, such as protecting logistics contractors, and thus took the time and effort to get a license.
None of this is to say that Blackwater is innocent. There are reasons to be suspicious. Some in the industry believe, for instance, that the immunity Blackwater gets from its State Department contract encourages its to emphasize its mission -- the protection of its clients -- to the exclusion of all other considerations: a sort of "shoot first, ask questions later" attitude. Other contractors choose to be more low profile.
And then there is the fact that news reports say the firefight Blackwater personnel took part in may have lasted 20 minutes. Standard operating procedures say that if one of your vehicles comes under attack and is disabled you get the passengers out, destroy the car, and leave immediately.
If the fight really lasted 20 minutes, someone is going to need to explain the timeline.
And this is not the first time Blackwater contractors have been in trouble. In late May, for example, a Blackwater guard shot and killed an Iraqi driver in Baghdad after the man drove too close to a convoy. According to a news report, Blackwater personnel involved "refused to divulge their names or details of the incident to Iraqi authorities."
Last December a reportedly drunk off-duty Blackwater employee killed a bodyguard of Iraqi Vice President Adil Abdul-Mahdi. The contractor was returned to the United States and fired. But he wasn't charged in either country.
According to the Norfolk Virginian-Pilot, Abdul-Mahdi assured U.S. officials that he was trying to keep the incident quiet but said Iraqis could not understand how a foreigner could kill an Iraqi and be spirited back home a free man.
It is too soon to know for sure what happened last weekend, and Blackwater personnel involved are innocent until proven guilty.
We will have to wait until the investigations are finished. But this time, unlike certain past incidents -- such as the probe of the 2005 Aegis Defense trophy video, showing contractors supposedly firing indiscriminately at Iraqi civilians -- the results must be made public, and not kept secret.
If it is the case that the Blackwater contractors did shoot without cause, is it true that there is no way to prosecute them, as many critics claim?
Legally speaking, at least in theory, the answer is no.
There are those who claim that the June 2003 Coalition Provisional Authority Order 17, which states contractors “shall be immune from any form of arrest or detention,” grants the firms blanket immunity from any and all crimes. Such thinking ignores section 5 of the order, stating that the contractors' immunity from prosecution "may be waived" by the "sending state" -- in this case the U.S. government.
Generally speaking there are five legal options available: Iraqi justice; civil suits; Alien Tort Claims Act; War Crimes Act; and the Military Extraterritorial Jurisdiction Act.
Admittedly, the state of the Iraqi legal system is currently in such disarray that it could not be expected to conduct fair and impartial proceedings.
Of the other options, MEJA is the strongest. The law has already been strengthened since it was passed and is in line to be beefed up again.
Earlier this year U.S. Rep. David Price, D-N.C., introduced a bill to clarify that all contractors working for the U.S. government in Iraq can be prosecuted under MEJA.
Among other provisions, it authorizes the FBI director to establish a Theater Investigative Unit, responsible for investigating allegations of criminal misconduct by contract personnel. It will be able to investigate reports of fatalities resulting from the use of force by contract personnel, and upon conclusion of any investigation, refer the case to the U.S. attorney general for further action.
If the Blackwater contractors did do wrong and they end up not being prosecuted, the reason will not be weaknesses in the law, but lack of will.