Eugene R. Fidell is a Senior Research Scholar in Law and the Florence Rogatz Lecturer in Law at Yale Law School. He is president of the National Institute of Military Justice and of counsel at Feldesman Tucker Leifer Fidell LLP, Washington, D.C. He is a co-author of Military Justice: Cases and Materials, a Fellow of the American Bar Foundation, a Life Member of the American Law Institute, and a member of the ABA Task Force on Treatment of Enemy Combatants and the board of directors of the International Society for Military Law and the Law of War.
The Politic: The current lawsuits against Blackwater are groundbreaking in that they are the first time that a private military contractor is being held criminally liable for extraterritorial crimes committed in the course of a government contract. Can you provide some background about the Nisour Square incident?
There was a convoy of vehicles that included security provided by Blackwater, now known as Xe. Blackwater was hired by the Department of State to provide security—a function ordinarily provided by marine guards. Apparently the State Department has moved away from that. I am not sure where the convoy was going from or to, but when they reached a major traffic circle, a major fusillade occurred. The facts are in dispute. There was a lot of fire by some of the Blackwater personnel in the convoy. Whether their fire was in response to shooting by others is unclear. As well, whether it was initiated by Blackwater remains open to question.
A number of Iraqis died as a result and, needless to say, it engendered enormous public interest in Iraq. Things thus got very hot for Blackwater in the United States. A major investigation ensued, the first stage of which was conducted by Department Security. Department Security is the internal affairs unit of the Department of State: they are law enforcement personnel, carry badges, and are armed (at least at times). In the course of that investigation, statements were taken by Department Security personnel from Blackwater personnel, under the understanding that they would not be used against the Blackwater personnel. That understanding was not arrived at with the approval of the Department of Justice. Because of the circumstances under which those statements were taken, the Department of Justice grew very concerned that the statements themselves and the fruits of those statements—the evidence obtained as a result of those statements—would be subject to suppression. Suppression from the standpoint of not being admissible as evidence in federal district court.
The Politic: There are at least two lawsuits filed against Blackwater USA: one sponsored by the Center for Constitutional Rights under the Alien Tort Claims Act on Oct. 11, 2007 and another by the Justice Department. What is the legal basis for each suit?
The criminal case is a prosecution for murder, as I understand it. The civil case—I do not recall its cause of action—seeks damages rather than a criminal conviction. They thus proceed differently. The civil case has resulted in a settlement, though there is some controversy as to whether the settlement should be given effect.
The Politic: You mention that there is controversy over the settlement in the civil case. How so?
It is not that uncommon for litigants in civil cases to have buyer’s remorse in the weeks after settling a case. They may talk to friends or family and come away thinking that they could have done better in the negotiations. That, I actually think, is quite common. However, it is less common for litigants to actually try to unravel a settlement and walk away from it. You can do that if you can show that the settlement was obtained by fraud or by the influence of duress. Whether the Iraqi plaintiffs are going to be able to sustain that argument is a very open question. It is not easy to unravel a settlement. For good reason. It is very human for people to say, “Gee, I wish I held out longer and got more money.”
There are, however, a number of issues to consider. Was this a knowing act on the part of the plaintiffs who settled? Were they properly informed of the content of documents that might not have been in their own language? Were they given translations either orally or in writing? Were they told other things that were not in the settlement documents that might have influenced them? If so, is evidence of those other things visible? There are some questions of contract law that could bare on that. It is possible that false statements were fraudulently made to make the plaintiffs consent to these settlements. Stranger things have happened. Whether that in fact happened here, I cannot say. But there could be an evidentiary hearing and people would have to take the stand. Those individuals might even have come to the United States or have their depositions taken in Iraq to make their case. I think they would have a heavy burden of proof to carry.
The Politic: The Los Angeles Times reported on January 11th that several victims of the Nisour Square shooting “were pressured by their own attorneys into accepting what they now believe are inadequate settlements.” What do you make of these claims?
The plaintiffs that settled now claim that the settlement was a result of a representation that Blackwater would go belly up if they sued. The plaintiffs would thus get nothing because Blackwater would be underwater. If someone said something like that to the plaintiffs with the purpose of inducing them to sign a settlement, there would be a substantial question over whether that was a statement of fact or simply an opinion. If it was an opinion, whether it was colorable or complete hogwash. I don’t know about enough about the business of Blackwater — other than that they’re been in the news a lot these days — in order to say whether that statement is true or not.
The Politic: In a world in which they were to prove that evidentiary burden, would winning a civil case in court establish a meaningful precedent?
It could potentially. It would not directly help other litigants, but it could help point the course of the law in a particular direction. If they are able to unravel the settlement, the parties will be back at the negotiating table and they may or may not be able to reach an agreement. If there is an agreement, I can assure you that this one will be on videotape to guarantee that the same thing does not happen again. However, if the parties are unable to reach an agreement, the plaintiffs are going to have to insist on a hearing. Whether they are going to prevail is anybody’s guess. They might, but I cannot guarantee that.
Current Criminal Litigation
The Politic: Lawyers for Blackwater have repeatedly argued that United States statutes do not apply to the Blackwater personnel working for the State Department. Is there a legal basis for bringing criminal charges?
The case was subject to prosecution, theoretically, in a federal court because of a statute that brings into federal criminal jurisdiction certain kinds of misconduct committed overseas by certain government contractors: the Military Extraterritoriality Justice Act (MEJA). There is a substantial question, in my mind, as to whether this prosecution was doomed to begin with. The Blackwater employees quite possibly do not fall under the statute under which they are being prosecuted. It is a very technical question as to whether work performed under a contract issued by the Department of State is work in support of the Department of Defense. That is it in a nutshell—I don’t have the statute right in front of me. It involves construing the terms of the statute, and my recollection is that it is at least fairly arguable that this contract does not fall under the statute. That has not been fully addressed yet. Congress was not perfect—I know this is surprising—and they probably did not anticipate this kind of situation.
The Politic: On December 31, Judge Ricardo M. Urbina dismissed the indictments against the five Blackwater defendants because of the Justice Department’s “reckless violation of the defendants’ constitutional rights.” What happened?
The problem was that despite its efforts, which were substantial, the Justice Department did not achieve perfect cleanliness in the preparation of its case. This was in terms of avoiding any reliance (no matter how indirect) on the statements that were obtained by Department Security personnel from the Blackwater employees. That was the problem. The Justice Department went through all sorts of hoops and contortions—I think they had to restart the investigation and bring in a whole new set of lawyers—but Judge Urbina still found that their efforts had not succeeded. I should not say what drove Judge Urbina crazy, but what obviously annoyed him was that there was at least one lawyer in the Department of Justice that had spoken early and often that the Department was not acting sufficiently to avoid reliance on this evidence. It was the disregard of that lawyer’s warnings that caused Judge Urbina to be as irate as he was.
The Politic: So does the Department of Justice appeal?
Vice President Biden announced during his recent trip to Baghdad that the Department will be appealing the case. The longer I practice, the less confident I feel in my ability to predict outcomes. However, I believe that it is unlikely that Judge Urbina’s decision will be overturned. His decision is about 90 pages long and is a very carefully done piece of work. It would be quite difficult, I think, to get it overturned. Unless they overturn it, the case is finished. Well, criminally finished.
The Politic: What is the process of appealing the decision?
The case would go to the U.S. Court of Appeals for the District of Columbia. The Department of Justice either already has or will soon file a notice of the appeal. There will be briefs filed by both sides. The case will almost certainly be argued before a panel of three judges. Depending on the outcome, either party could ask for a rehearing before the full Court of Appeals and, potentially, the case could be heard before the Supreme Court. Given the case, I do not know whether or not it will be worthy of certiorari. I think it will probably end with the D.C. Circuit. If the government lost, it might feel the need to try to get the Supreme Court to hear it. Not because they think they have a good shot of the Court granting certiorari, but because they need to do it for political reasons. It would demonstrate to the Iraqis that the administrative has done its best to overturn Judge Urbina’s decision. It would signal that they were devastated by the outcome but that they spared no effort.
The Politic: What does that mean for the lone Blackwater employee that has already pleaded guilty and is presumably cooperating with the Department of Justice?
I think he will try to withdraw his plea. There is a certain unjust aspect to it. He presumably pleaded because he was cooperating with the authorities. It would be truly ironic if the one cooperating with the authorities was the only one to go to the slammer. I do not know the precise rules about when you can withdraw your plea, but the request would first go to Judge Urbina, and I would think that he would be sympathetic. What he might do is hold such a motion in advance of the D.C. Circuit decision.
The Politic: Are there other avenues that the Department of Justice could pursue?
One question is whether the agreement we had with Iraq about the status of our forces would permit the Iraqi courts to prosecute the Blackwater personnel. I believe that is not in the cards. I also assume that Blackwater personnel are no longer in Iraq. So that is not going to go anywhere. I also, personally, have great doubts about whether the personnel could get a fair trial in Iraq. Unfortunately, I think that despite the efforts made by the Iraqi government to develop its justice system, it does not approach ours in terms of its fairness and transparency.
I had thought about the possibility of the Blackwater guards being prosecuted in federal court by military court martial, because the Uniform Code of Military Justice does state that persons serving for or accompanying the Armed Forces during a time of declared war—which this is not—or a contingency operation—which this is—can be prosecuted by a court martial. Whether these Blackwater personnel would be treated as serving with or accompanying an Armed Force is, I think, quite doubtful. But I am sure the Justice Department has already thought about that. I think that because Blackwater was not working with the Department of Defense or Armed Forces but rather with the embassy, they are outside that statute. There is another possible track because Blackwater personnel are often ex-military. Under certain circumstances, retired military personnel can be subjected to court martial jurisdiction. It did occur to me that some of the Blackwater personnel that were under the gun were under court martial jurisdiction. However, I talked within someone that looked into it and it turns out that none of the indicted Blackwater personnel were retired from the military, and thus not subject to court martial jurisdiction.
The Politic: If the case fails in the courts, what will the outcome be?
The outcome would be terrible, at least politically. In the international sense, it is a terribly devastating blow. It is a case in which Iraqis had every reason to expect would at least end up in trial. These gentlemen will not go to trial. I have so say, however, that I am not particularly surprised by the outcome due to Department Security’s role in this in the first place. The fact that there had been questioning and promises made by Department Security was a red flag early, early on. This case is an added irritant in an already irritated relationship between the United States and Iraq. How are the Iraqis supposed to feel? Our fine legal system has prevented us from prosecuting because we botched it. That is cold comfort to Iraqis. Very nice, we have a wonderful legal system. Did their loved ones get justice? No. Because our policemen blundered it. That’s not satisfactory. This is another grievance that Iraqis—especially in this case—can quite reasonably harbor.
The Politic: What about domestically?
I do not think there will be any domestic fall out. The public’s attention is not focused on this. There are too many other things competing for the public’s attention: politics, who has the late night show, you know.
The Politic: Do you think future investigations might be different?
I think this case is one of a kind. It happened to be investigated by an agency that is way beneath the level of investigation and skill of what the FBI has in terms of interrogational techniques. It was a State Department contract and Blackwater was protecting State Department personnel. Thus, the State Department was the first to investigate.
The Politic: So then what should the United States do about reforming our legal code to better regulate the actions of private military contractors?
Other countries don’t use military contractors on the scale that we do. We are on the front on this one and I think it is a total mistake. It is almost like a narcotic. We have gotten into a habit forming practice of relying excessively on civilians to conduct tasks that military personnel should do. For some time, we had more contractors than uniformed personnel on the ground in Iraq. We have to kick the habit. We have to really ween ourselves from using civilians to perform essential military functions. If conditions on the ground in Iraq did not lend themselves to normal military operations, then something else has to change. I think we have gone way overboard. Civilians are operating outside the framework of military law and the Geneva Conventions. And we are the worse for it. Questions of discipline and blurring the line between military and civilian raise, and it is extremely unfortunate. Thus, shrink the civilian component of the military workforce. The other component is to have a much more alert and vigorous discipline program for civilians that do work along our GIs. A system to ensure accountability.
The Politic: And what would that system look like? How broad are the necessary measures?
As broad as the practical realities dictate. So we never have a person somewhere on behalf of the United States government—albeit as a civilian contractor—who can inflict this kind of injury not only on the Iraqis but on the US-Iraqi relationship. It is preposterous. That means amending MEJA to include contractors working with all agencies and not just the Department of Justice. I would rather do that than make greater use of the UCMJ provisions. That is limited and should be limited.