Blackwater security, ‘unlawful combatants’?

October 15, 2007

In light of the growing scandal surrounding Blackwater private security forces in Iraq, and efforts on the part of the Maliki government to expel the contractors from the country, Bush administration attorneys are apparently contemplating an awkward legal question: are Blackwater guards who’ve killed Iraqi civilians our own “unlawful combatants”?

As a rule, it’s a label given to terrorists caught in war zones without uniforms. It may be provocative, but there are U.S. officials who believe the name may apply to Blackwater. (thanks to reader DOK for the tip)

The issues surrounding the private security contractors are being examined by lawyers at the departments of State, Defense and Justice. Disagreements about the contractors’ status exist between agencies and within the Pentagon itself.

“I think it is an unresolved issue that needs to be addressed,” said a senior Defense Department official who spoke on condition of anonymity because he was not authorized to discuss the subject. “But if that is in fact the case, what the heck are we doing?” […]

If the contractors were the aggressors in an incident, they could be deemed to be unlawfully using offensive force, said Scott Silliman, a retired Air Force lawyer and now a professor at Duke University. He said they could claim self-defense only if they had been fired on.

“The only force they can use is defensive force,” Silliman said. “But we may be seeing some instances where contractors are using offensive force, which in my judgment would be unlawful.”

It’s a debate wrought with implications.

If Blackwater security forces have used offensive force, and I think there’s abundant evidence that they have, the U.S. may conclude that using private security in war zones is necessarily wrong.

And if so, the strain on an already-overtaxed U.S. military to provide security for diplomats and others is going to make a bad situation even worse.

As for Blackwater, Michael Schmitt, a professor of international law at the Naval War College and a former Air Force lawyer, told the LAT that killing civilians violates the law of war. “It is a war crime to kill civilians unlawfully in an armed conflict,” he said.

I was curious why the administration’s attorneys would even raise the question in the first place. It’s not like them to be pro-active, particularly when dealing with an issue like this one. Apparently, some officials have come to believe the Bush administration has to worry about exceeding the limits of treaties of which we are a part.

The question is an outgrowth of federal reviews of the shootings, in part because the U.S. officials want to determine whether the administration could be accused of treaty violations that could fuel an international outcry. […]

The designation of lawful and unlawful combatants is set out in the Geneva Convention. Lawful combatants are nonmilitary personnel who operate under their military’s chain of command. Others may carry weapons in a war zone but may not use offensive force. Under the international agreements, they may only defend themselves.

When dealing with foreign detainees at Guantanamo Bay, the Bush White House has taken an expansive definition of “unlawful combatants,” pushing the label to its logical extreme (and then some).

Something tells me the White House will prefer a much narrower definition in this context.

I was curious why the administration’s attorneys would even raise the question in the first place.

1. So they can find the Blacktwatters didn’t actually do anything wrong and give them MoFs.

2. They’re worried about war crimes tribunals and are trying to show they handled the “only” problem that occurred during the whole occupation and there isn’t really any need to haul the rest of their fat arses off to The Hauge.

Take your pick.

  • What we have here is a rogue paramilitary organization that operates inside a sovereign country under no jurisdiction, laws or rules except their own solely for the purpose of making money for themselves and the company.

    They get away with it because the Bush administration rules Iraq and the company knows that George will never make trouble for them.

    Simple, isn’t it?

  • As a rule, it’s a label given to terrorists caught in war zones without uniforms.

    As a rule, Steve, “terrorists” is a label given to poor suckers caught in the wrong place at the wrong time without uniforms. Think about what you just said for a minute.

  • Not a member of the armed services.
    Shooting people in anything other than self-defense.

    Sounds more like a common murderer to me.


    If Blackwater security forces have used offensive force, and I think there’s abundant evidence that they have, the U.S. may conclude that using private security in war zones is necessarily wrong.

    And if so, the strain on an already-overtaxed U.S. military to provide security for diplomats and others is going to make a bad situation even worse.

    What’s wrong is that there aren’t enough troops. What’s worse is that no one in power ever admitted it and taken steps years ago to increase the size of the Army and Marine Corps. The Army is so completely mired in Iraq right now that Mexico could invade the U.S. and all we could do in reply is say “Bienvenidos!”

    Invading Iraq was a huge mistake, it took the collective genius of the Bush administration to turn it into a disaster.

  • You know, I made that very suggestion either here or on ThinkProgress a few weeks ago — that since these guys aren’t a true military, don’t wear uniforms, and are not following the “rules” of war, then they should be called what they are: unlawful combatants.

    Good to know I’m not (totally) insane and that the idea has merit.

  • I was curious why the administration’s attorneys would even raise the question in the first place. It’s not like them to be pro-active, particularly when dealing with an issue like this one. Apparently, some officials have come to believe the Bush administration has to worry about exceeding the limits of treaties of which we are a part.

    Blackwater is being sued by the families of the Nisoor square victims, and maybe the Bush administration is worried about the possibility of the U.S. or specific officials being sued– the status of the Blackwater guards might have to do with a defense putatively available to the Bush admin, like a technical, jurisdictional defense. That’s just an off-the-top-of-my-head answer.

  • I guess more likely Bush is worried about whether his admin could be charged with a war crime in the Nisoor incident, and the lawyers think the status of the Blackwater guards has something to do with the question.

  • People can recover lawsuit damages for some violations of international law. The status of the law is a little bit shaky, but the basic rule that’s been settled on is that certain traditional violations of international law, such as piracy, or interference with ambassadors (assault, kidnapping, etc.) could be the basis of tort damages. This is the Alien Tort Statute, a law congress passed in 1789 that states, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. So this allows the Iraqis to sue if the incident fits the interpretation of the law.

  • I got interrupted by my ailing mother while writing my last comment, so I hit “submit” without finishing thinking up everything I wanted to say.

    Anyway, the point of the above was that even if there is a jurisdictional / immunity from prosecution hurdle to brining certain defendants in on criminal charges, there is a way to pursue tort remedies for certain violations of international law. Violations of the law of war (like the Geneva Conventions) are violations of international law. Only thing is, the ATS only applies to certain violations of international law, as it has been narrowed by the courts (last I heard, this rule was still in place, and although I haven’t looked it up, I have no reason to think the conservative courts changed it in the very few years that have passed since the rule was laid down). The questions would be whether the government defendants are still immune from the civil suit, and whether the Blackwater actions fit one of the narrow types of offenses that can be remedied through the ATS. As to the first question, I’m really not up on the law of suing the federal government or federal officials, and as to the second question, that would be a novel question before the courts as far as I know, but I haven’t at all been following any civil litigation coming out of Iraq. From the government’s interest, though, it sounds like it’s a totally novel question (no previous litigation arising from these basic facts– govt.-hired merc in foreign country shoots foreign civilian in contravention of the law of war– against the federal government before).

  • As to the first question, I’m really not up on the law of suing the federal government or federal officials,

    Note the nuance– foreign plaintiffs sue US govt. (maybe at a very high level of the exec branch) in US courts for acts in a foreign country. That’s the question, and that’s how it differs from the typical suit against the govt.

  • Given the novel facts, I would expect that any suit against the US government or a security contractor over acts commited by the contractor in Iraq, several defenses would be raised including jurisdictional and Constitutional ones.

    As to why the government let its concern about the legal status of security contractor combatants in the Nisoor incident appear in a news article, I assume that they would hope to generate chatter among liberal lawyers about theories as to how the Blackwater guards could be unlawful combatants, so that they could troll the legal blogs for these theories (or collect them by other even more dubious means) and be better prepared for litigation they may face.

  • The Geneva Convention definition of “lawful” and “unlawful” combatants would have covered the execution-upon-capture of German SS troops in World War II (which was actually advocated by several U.S. commanders). It would do the same with all the Blackwater bozos. I always thought those four asswipes got what they deserved in Fallouja back in 2004 when they got to “be all the barbecue you can be.”

  • Even though I suspect the conservatives might be trolling, I’m sure the issues are interesting and I’d love to see some writing on how the Iraqis could sue for different incidents of Blackwater misconduct we’ve seen alleged in the news, and what obstacles the litigants might face.

  • Well, Tom Cleaver, the Supreme Court has handled the question of what makes an unlawful combatant in Gitmo-type litigation recently. I really didn’t follow it and I don’t know if they were interpreting the Convention or a federal statute.

    Actual also, I think there was some litigation against Blackwater by the survivors of the Blackwater guards who were killed in that unfortunate Falluja attack, so the courts that handled that case might have had something to say that might have some bearing on the Iraqis’ litigation, but it might not be direct authority for the Iraqis’ case, depending on what court they can bring it in. Also there’s the difference that the Blackwater relative was a domestic plaintiff, but the Iraqis of course aren’t (which might have some bearing on defenses and also implicates the ATS).

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  • I want to know who is paying Blackwater’s salary, is this a government contract paid for by us? If so this is truly outrageous, so many of our guys are just waiting for their terms in the military to be up so they can join Blackwater and make the big bucks, (and maybe extract a little revenge), why would we be paying a civilian contractor 3or4 times the money we are paying our soldiers. Seems Blackwater is getting off really good our military pays for all the training and they reap the benefits and line their pockets in gold.

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