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McClatchy Washington Bureau - Legal questions loom in Blackwater convictions

October 24, 2014
In The News

October 24, 2014 by Michael Doyle

WASHINGTON — Congress and courts alike could end up chasing after the high-profile convictions of four ex-Blackwater Worldwide guards now facing decades in prison.

In the wake of the Blackwater trial verdicts, a North Carolina congressman hopes to revive legislation clarifying U.S. authority to prosecute non-defense contractors for overseas crimes. Defense attorneys, meanwhile, will aim their upcoming appeals at the lingering legal ambiguity.

“Unfortunately, the case exposed a major loophole in our criminal justice system that has allowed U.S. contractors overseas to operate in a legal gray area, undermining our commitment to the rule of law and compromising our broader foreign policy goals,” Rep. David Price, D-N.C., said Thursday.

Put another way, there’s a fog of law inside the fog of war.

Following a 10-week trial, and an additional 28 days of deliberations, a jury on Wednesday found one former Blackwater contractor guilty of first-degree murder and three others guilty of multiple counts of voluntary manslaughter and other charges.

Nicholas A. Slatten of Sparta, Tenn., faces a mandatory life sentence following his conviction for first-degree murder in the Sept. 16, 2007, shootings at Baghdad’s Nisour Square.

Dustin L. Heard of Maryville, Tenn.; Evan S. Liberty of Rochester, N.H.; and Paul A. Slough of Keller, Texas, face mandatory minimum sentences of 30 years each, and potentially much more, for their convictions on myriad voluntary manslaughter, weapons and related charges.

The four men, all military veterans in their 30s, are now in jail awaiting sentencing that’s likely to occur in two or three months. Their formal appeals will follow several months after that, potentially extending for several years a legal saga that started with the initial criminal charges on Dec. 4, 2008.

“International investigations such as this one are very complex and frequently dangerous,” noted Andrew G. McCabe, the assistant director in charge of the FBI’s Washington field office. “This case took a tremendous amount of coordination to bring over a large number of foreign witnesses.”

A different kind of complexity will confront the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that will review the case. The last time the D.C. appellate court considered the Blackwater case, it reinstated in April 2011 charges that had been dismissed by the first trial judge in December 2009.

The key question this time could be whether the government had the authority to prosecute.

If the killers were active-duty military, the answer is simple. The Uniform Code of Military Justice allows military prosecutions for murders in wartime, as happened, for instance, with the Army’s Robert Bales, who pleaded guilty at Joint Base Lewis-McChord in Tacoma, Wash., in 2013 to killing 16 Afghan civilians.

Civilians, too, can sometimes face court-martial. A 2006 amendment authored by Sen. Lindsey Graham, R-S.C., extended the military’s legal jurisdiction to include contractors “serving with or accompanying” armed forces in “contingency operations” like Iraq. Iraqi-born translator Alaa “Alex” Ali, a civilian working for L-3 Communications, was subsequently court-martialed in 2008 following a fight with another translator.

“Civilians serving alongside the military may be subject to courts-martial under the military justice system in some limited circumstances,” the U.S. Court of Appeals for the Armed Forces concluded in a July 2012 decision rejecting Ali’s appeal.

The Blackwater cases involve yet another law, called the Military Extraterritorial Jurisdiction Act.

Passed in 2000, the law permits the civilian prosecution of persons “employed by or accompanying the armed forces” overseas. The law, for instance, was used to prosecute former soldier Steven D. Green in Kentucky on rape and murder charges for his rampage while serving in Iraq. The Texas native committed suicide in prison earlier this year.

A 2004 amendment extended the law to include those working “in support” of a Defense Department mission. The former Blackwater guards – the company is now called Academi – were the first non-Defense Department contractors charged under this provision of the law, and its exact meaning is up for grabs.

Defense attorneys contend the law doesn’t cover the Blackwater security personnel who were under contract to the State Department and were protecting diplomats at the time of the Nisour Square shooting. This argument was called “rather strong” by U.S. District Judge Ricardo M. Urbina in 2009, and legal scholars have underscored the confusion arising from overlapping roles.

“Civilians supporting the complex missions of today, although often operating in close proximity with the military, are routinely connected to other government agencies,” Geoffrey S. Corn, a retired Army officer and professor at South Texas College of Law, told the Senate Judiciary Committee at a 2011 hearing.

Price, the North Carolina congressman, has championed since 2007 a bill that explicitly extends civilian prosecutors’ jurisdiction to overseas crimes committed by contractors of federal agencies “other than the Department of Defense.”

The House passed an earlier version of Price’s bill in 2007, but it was opposed by the Bush administration and never got through the Senate. WhenPricereintroduced the bill in July, joined by Sen. Patrick Leahy, D-Vt., in the Senate, they implicitly acknowledged the current legal ambiguity that will now anchor the former Blackwater men’s coming appeal.

“The Blackwater case was the most visible example of this loophole,” Price said Thursday, “but it was far from the only one.”