On September 16, 2007, seventeen Iraqi civilians died in a botched security operation by the private security company (PSC) Blackwater USA. On December 19, 2020, President Donald Trump pardoned the Blackwater guards, who were waiting appeal of their convictions.
Independent analysts concluded that the actions of the Blackwater team were unjustified. After a series of legal starts, stops, and reversals, four members of the Blackwater team were sentenced to prison for their actions; three were convicted of manslaughter and the fourth for first degree murder. Although there was shock and outrage from the U.S. and international commentariat, human rights groups, and the United Nations, the pardons were appropriate.
This wasn’t a case of whether the accused committed homicide. They did, and an investigation by the U.S. Army determined those deaths were unjustified. The investigation and prosecution, however, were flawed, hijacked by seekers of “justice” and those opposed to Erik Prince and all his works.
In a desperate pursuit of its conception of justice, the U.S. government twisted the law to get convictions, proving that if a prosecutor decides you belong in jail, you’re going to jail. Conversely, it often takes a politician, not the courts, to see that justice is done.
Under its contract with the U.S. State Department, Blackwater personnel directly participated in hostilities on a regular basis, but this a role reserved for military forces according to international law and U.S. Government directives and is among what are called “Inherently Governmental Functions.” Unlike military forces, misconduct on the part of these civilians was not (at that time) accountable under military law. Although civilians were required to abide by the laws of the host nation, PSCs, including Blackwater, weren’t subject to Iraqi law, either. Coalition Provisional Authority Order 17 stated that, instead, they were subject to legal proceedings by the “Parent State.” In this case, that was U.S. government.
The problem was that State Department PSCs in Iraq in 2007 were not covered by the only statutory authority to bring alleged wrongdoers to trial, the Military Extraterritorial Jurisdiction Act (MEJA). MEJA only applies to persons under military authority while other statutes, including the Patriot Act and the Special Maritime and Territorial Jurisdiction Act did not apply to the situation at Nisour Square. The Department of Justice elected to create the fiction that these State Department contractors were in Iraq supporting the Defense Department, despite contrary testimony by Gordon England, who was Deputy Secretary of Defense at the time of the incident.
Another problem was that initially, the only evidence the government had to build a case was the debriefings conducted by the State Department with the Blackwater team members. These debriefings were compulsory, submitted under conditions of immunity, meaning that they were protected under the Fifth Amendment. But because the government violated the contractors’ protections against self-incrimination, the courts initially dismissed the charges. Then-Vice President Joe Biden, who handled Obama administration policy for Iraq, promised Iraqi leaders the U.S. would appeal the dismissal of these charges. Subsequently, the U.S. Court of Appeals for the District of Columbia, overturned the dismissal, and decided to allow the excluded statements as testimony.
Then there was the problem of evidence. The prosecution was never able to match any of the bullets collected at the scene to any of the weapons used by the Blackwater team. No manslaughter prosecution in the United States would be credible without proof that bullets fired at the scene could be matched to a shooter’s firearm.
Despite these irregulates, and others involving suppression of exculpatory evidence and misuse of weapons charges, the four members of the Blackwater team were convicted…and had the sentences dismissed…and were retried…and were convicted again…which was again appealed.
The individuals are clearly responsible for unjustified homicide. The guilty must be punished, but we cannot use unjust means to get a desired result. Because of those unjust means to pursue justice, the Presidential pardon is justified, despite the bad optics. The usual suspects will claim that President Trump is condoning murder. The nuances of protecting individual rights against a legal system corrupted to produce a pre-determined result are difficult to follow. These issues may unintelligible in other countries that do not have similar constitutional protections for their citizens. We find ourselves between Scylla and Charybdis.
And we ensured this won’t happen again. All contractors working in a military contingency operation can now be tried by court-martial, but many places where U.S. Government contractors work are not defined as “contingency operations.” A comprehensive, so called, “civilian extraterritorial jurisdiction act” has been stalled in Congress for about a decade.
The Presidential pardon was shocking to many, but it was necessary to preserve the rule of law. Hopefully, that shock will stimulate action to close the remaining gaps in accountability and, should a similar situation recur, ensure justice is swift and appropriate.
James Durso (@james_durso) is a regular commentator on foreign policy and national security matters. Mr. Durso served in the U.S. Navy for 20 years and has worked in Kuwait, Saudi Arabia, Iraq, and Central Asia.
Christopher Mayer is a consultant on national security issues. He is a retired U.S. Army officer whose duties included policy, oversight, and accountability for private military and security contractors.