DOJ, You Can't Handle the Truth (Blackwater Was Not a Defense Contractor)

It's been 15 months since the shooting in Baghdad's al-Nisoor Square and today, December 8, five Blackwater contractors surrendered themselves to a U.S. Federal Court, and a sixth is reportedly in negotiations for a plea deal, in connection with charges finally brought against them by the Justice Department (DOJ). Yesterday's Washington Post story has the few details that have been released so far.

The most interesting part of the story is the imaginative legal basis for the charges. DOJ is actually going to attempt to prosecute under the Military Extraterritorial Jurisdiction Act (18 USC Chapter 212) even though it applies only to Defense Department contractors and the defendants were employed under a State Department contract. And, as if that weren't already enough of a stretch, they are adding more charges under the Anti-Drug Abuse Act of 1988 that carry a mandatory 30-year minimum sentence for using machine guns in the commission of a crime.

The strategy of using the Military Extraterritorial Jurisdiction Act (MEJA) was hinted at last August (see this), and I find it simply preposterous. The premise appears to be that Blackwater, by working for the State Department, was really supporting the Defense Department without benefit of contract since, absent Blackwater, State would have had to call on Defense Department resources for personal protection. Therefore, DOJ will pretend that the MEJA applies to Blackwater even though, really, it doesn't. All that's left for DOJ to do is to find a jury willing to suspend disbelief about the MEJA.

Of course, State did have options for protection other than using Blackwater or DOD. Blackwater was only one of three companies that State used, and uses, for personal protection in Iraq. Not to mention that State has its own internal security service, or that State customarily uses host country police and security personnel to staff protective details in most countries.

Beyond those objections, isn't there also a fundamental objection to the implication that the State Department itself is merely supporting the Defense Department in Iraq, and not carrying out its own mission? Or at the very least, that the State Department is unable to support its own operations in Iraq? If the defense lawyers are really on the ball, they will get an affidavit from Ambassador Crocker on that point. I can see it now:

Q: Ambassador Crocker, it has been asserted by the prosecution that you and your embassy are in Iraq to support the Defense Department. Is that your understanding, as well?

A: No. I am the Chief of Mission and the representative of the President in Iraq. I am not subordinate to anyone else.

Q: You don't report to the Pentagon, or to CENTCOM, or to some military commander or other?

A: No, of course not.

Q: But is that little embassy operation of yours self-suporting? Do you have your own contracting authority, or do you go to the Defense Department when you need products or services?

A: We have our own separate contracting authority, as well as our own security resources.

Q: If you didn't have Blackwater, or any other security contractor, available in Iraq, would you be able to remain in operation without calling on Defense for your personal protection needs?

A: Yes, of course, just as the embassy in Afghanistan does, and all 275 of our other embassies and consulates do.

Q: Thank you.