Blackwater Not Above the Law? (Sen Graham's Defense Authorization Act)

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Not Above the Law?

09.26.07 -- 9:22AM
By Josh Marshall
Are Blackwater employees subject to the UCMJ (Uniform Code of Military Justice)? It seems they may now be, because of an amendment to last years Defense Authorization Act authored by Sen. Graham. Whether or not anyone's going to act on that power, of course, is another matter entirely.

http://talkingpointsmemo.com/archives/054220.php




September 26, 2007 7:00 AM

Blackwater’s Legal Netherworld
Private security contractors are subject to military justice — or are they?

By Mark Hemingway

In the reams of media coverage surrounding the Blackwater incident last week one curious detail remains virtually unreported. The general theme of the coverage remains that private military contractors are somehow “above the law,” but almost no media sources have referred to the fact that, as of last fall, contractors are subject to the same to the same Uniform Code of Military Justice that governs U.S. soldiers.

In theory, Blackwater contractors could be court martialed for wrong doing, a prospect that should satisfy all critics who insist that private military companies remain unaccountable. However, even before the change there was no lack of applicable laws to which contractors were subject. The truth is that contractors are not above the law, but rather well within the reach of several different codes and regulations and nobody’s exactly sure how one would go about exacting legal remedies against them should they be needed.

The change regarding the UCMJ was inserted into the 2007 Defense Authorization Act by Senator Lindsay Graham who noted that the change would “give military commanders a more fair and efficient means of discipline on the battlefield. The provision clarifies the Uniform Code of Military Justice to place civilian contractors accompanying the Armed Forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.” Graham is not coincidentally also a reserve Judge Advocate General (JAG) officer.

The amendment resulted in a small but highly significant change to article two of the UCMJ. Previously article two explained military legal jurisdiction over civilians as being conditional according to the following language: “in time of war, persons serving with or accompanying an armed force in the field.” That language has now been altered to read “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.” The amendment also defines “contingency operation” as “a military operation that is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force” along with a host of other conditions where the military may be called into action. This is significant, as Congress is loathe to issue a declaration of war anymore. In the case of United States v. Averette, the Court of Military Appeals set aside the conviction of a contractor in Saigon because the conflict in Vietnam was not technically a “time of declared war.”

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http://article.nationalreview.com/?q=MmYzMTkwMzQ2OTVhNGY2MGQzMDY0MTJiM2ExYmY3YmY

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1. Let's hope this is enforced!

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2. Blackwater Incident May be Worse than Abu Ghraib to Iraqis:

Today's Must Read
By Spencer Ackerman - September 26, 2007, 9:33AM
"It may be worse than Abu Ghraib."

That's a senior U.S. military official explaining to The Washington Post how strongly Iraqis are reacting to Blackwater's September 16th shooting of civilians in Baghdad. By contrast, here's a State Department official: "The bottom line of this is that we recognize that there's an issue here."

In the gap between those two assessments lies the acrimony between the Pentagon and the State Department over the shooting. The State Department hired Blackwater to protect its dignitaries in Iraq, and so it has to balance its relationship with the Iraqi government with its need to protect Blackwater from reprisal. But the military sees Blackwater's relaxed rules of engagement -- issued by the State Department -- as hurtful to its efforts to turn Iraqis against the Sunni insurgency and the Shiite militias. (More on this later today.)

"They are immature shooters and have very quick trigger fingers. Their tendency is shoot first and ask questions later," said an Army lieutenant colonel serving in Iraq. Referring to the Sept. 16 shootings, the officer added, "None of us believe they were engaged, but we are all carrying their black eyes."
"Many of my peers think Blackwater is oftentimes out of control," said a senior U.S. commander serving in Iraq. "They often act like cowboys over here . . . not seeming to play by the same rules everyone else tries to play by."

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http://www.tpmmuckraker.com/archives/004293.php