A federal judge in Washington, Ricardo Urbina, has provided another compelling argument against the outsourcing of war to gunslingers from the private sector. In throwing out charges against Blackwater agents who killed 17 Iraqis in Baghdad’s Nisour Square in September 2007, Judge Urbina highlighted the government’s inability to hold mercenaries accountable for crimes they commit.
Judge Urbina correctly ruled that the government violated the Blackwater agents’ protection against self-incrimination. He sketched an inept prosecution that relied on compelled statements made by the agents to officials of the State Department, who employed the North Carolina security firm to protect convoys and staff in Iraq. That, he said, amounted to a “reckless violation of the defendants’ constitutional rights.”
During the presidential campaign, Barack Obama and Hillary Clinton competed over who would take the toughest line against mercenaries. It is clear that the only way for President Obama to make good on the rhetoric is to get rid of the thousands of private gunmen still deployed in Iraq, Afghanistan and elsewhere.
The killings in Nisour Square were hardly the first misdeeds by hired guns in Iraq, or the last. The army has said contractors from firms like CACI International Inc. were involved in more than a third of the proven incidents of abuse in 2003 and 2004 in the Abu Ghraib prison. Guards from Blackwater — which has renamed itself Xe Services — and other security firms, like Triple Canopy, have been involved in other wanton shootings.
On Jan. 7, two former Blackwater guards were arrested on murder charges stemming from a shooting in Afghanistan last May that left two Afghans dead.
Still, the government has failed to hold armed contractors accountable. When its formal occupation of Iraq ended in 2004, the Bush administration demanded that Baghdad grant legal immunity to private contractors.
Congress has tried to cover such crimes with American law. The Military Extraterritorial Jurisdiction Act extends civilian law to contractors supporting military operations overseas, and the Uniform Code of Military Justice was broadened in 2006 to cover contractors.
But the government has not prosecuted a single successful case for killings by armed contractors overseas. An Iraqi lawsuit against American military contractors by Iraqi victims of torture at Abu Ghraib was dismissed by a federal appeals court that said the companies had immunity as government contractors.
Furious that the Nisour Square case was dismissed, the Iraqi government said it might file civil suits in the United States and Iraq against Xe. But its chances of success are not considered great. The families of many of the victims of the rampage accepted a settlement from Xe last week, worried that had they pursued their civil suit they might have gotten nothing.
There are many reasons to oppose the privatization of war. Reliance on contractors allows the government to work under the radar of public scrutiny. And freewheeling contractors can be at cross purposes with the armed forces. Blackwater’s undersupervised guards undermined the effort to win Iraqi support.
But most fundamental is that the government cannot — or will not — keep a legal handle on its freelance gunmen. A nation of laws cannot go to war like that.