What's more, even if Judge Ricardo M. Urbina had permitted use of the statements, the charges still ought to have been dismissed for the reason that the law the defendants were charged under, the Military Extraterritorial Jurisdication Act, applies only to Defense Department contractors overseas and the defendants were contractors to the State Department, not Defense. The prosecutors were forced into the ridiculous contortion of pretending that the defendants' employment by the State Department "related to supporting the mission of the United States Department of Defense in the Republic of Iraq," as it says in the first paragraph of the indictment, as if the State Department were a subsidiary of Defense.
Which begs the question why wasn't there any applicable U.S. law, or Iraqi law, or Status of Forces Agreement, or any other legal means of redress? The State Department had employed protection contractors in Iraq for three years at the time of the Nisour Square incident, but the following day the State Department's spokesman was unable to answer a direct question about legal accountability:
QUESTION: Many Iraqis think that these security contractors operate outside the law and that they're not held accountable when incidents such as -- such as these happen. Under what law would they be held accountable? Would it be U.S. law because they're operating --
MR. MCCORMACK: Right.
QUESTION: I mean, what are the rules of engagement? Sorry, that's three questions. What are the rules of engagement here and under what law would they be held accountable? Iraqi --
MR. MCCORMACK: It's a good question. You know, I could -- I could probably give you an answer that is a common sense, man-in-the-street answer, but that wouldn't necessarily have been run by our lawyers first, so I'd want to actually consult with the lawyers before I give you a definitive answer.
QUESTION: Can you check that?
QUESTION: Yeah, can you find that out?
MR. MCCORMACK: Yeah, sure.
MR. MCCORMACK: I'll be happy to, yeah. Yeah.
The spokesman never could come up with a clear answer to the question in the next few days and weeks, which is indication of a failure on the part of the State Department to plan for the eventuality that one of the many heavily armed contractors it employed in extremely high threat activities might actually shoot someone someday.
To make matters worse, the State Department had been employing private contractors to handle protective security details in dodgy jurisdictions for 17 years at the time of the Nisour Square incident. In 1994, State contracted with MVM to protect Haitian President Aristide when he returned to Haiti after being deposed three years earlier. After that, more contractors from other firms were hired for protection assignments in the former Yugoslavia (2000), the West Bank and Gaza (2002), Afghanistan (2002) and finally Iraq (2004). My memory is hazy on this, but I think there was a questionable shooting incident in the former Yugoslavia that was not legally resolved before the contractors were hurriedly sent out of the country. For State to be caught flat-footed on the question of legal accountability in 2007 was, frankly, deplorable.
I understand that a system of accountability has now been provided for private security contractors in Iraq. But has the lesson been learned and applied to all the other foreign locations where we employ private citizens in protection assignments? We owe them as well as the host governments a better answer than "Hum ... good question ... I'll check on that ... yeah."