Contract Justice

by JEREMY SCAHILL
[posted online on April 6, 2008]

For the first time since 1968, the Pentagon has charged a civilian contractor under military law. But the individual in question is not one of the Blackwater "shooters" alleged to have gunned down seventeen Iraqi civilians in Baghdad's Nisour Square last September, nor is it the Blackwater contractor accused of shooting to death a bodyguard to the Iraqi vice president inside the Green Zone on Christmas Eve 2006. In fact, the contractor is not even a US citizen. Nor is he an armed contractor. And the crime in question was not committed against an Iraqi civilian.

The swiftness of the military's response to this alleged crime, the nature of that crime and the identity of the victim speaks volumes about the priorities of US oversight and law enforcement when it comes to contractor crimes in Iraq. What's more, the news of the prosecution came just days before the State Department announced that despite the serious allegations against Blackwater, it was extending the company's Iraq "security" contract for yet another year.

The accused contractor, Alaa Mohammad Ali, is a dual Canadian-Iraqi citizen who worked for the US corporation Titan as a military translator in the western Iraqi town of Hit. He reportedly emigrated to Canada after fleeing Iraq in the aftermath of Saddam Hussein's violent suppression of the 1991 Shiite uprising. Now, Ali stands accused of stabbing in the chest a fellow contractor--reportedly another translator--on February 23. The military began the process of charging him four weeks later, on March 27.

By contrast, more than six months after the incident, no charges have been brought--under any legal system--against Blackwater's personnel for the Nisour Square shootings, despite a US military investigation that found all seventeen of the Iraqi victims died as a result of unjustified and unprovoked shooting in an incident the military labeled a "criminal event." Nor have charges been brought against the Blackwater operative alleged to have killed the Iraqi vice president's bodyguard. Baghdad called that killing a "murder." Weeks after the alleged killing, the Blackwater contractor was back in the Middle East working for another war contractor.

Ali's case is the first to be brought since the release of a March 10 memorandum from Defense Secretary Robert Gates asserting greater military authority to prosecute contractors for crimes committed abroad. The memo was sparked by a 2006 Congressional amendment to the Uniform Code of Military Justice. "They want to test out a new American law on somebody who is not even an American," said Capt. Clay Compton, Ali's military lawyer, in an interview with the New York Times. "This is not the type of case that Congress envisioned would be tried. We will be challenging the justification for this case."

But while lawyers, military officials and legislators debate the particulars of Ali's case, the gorilla in the room is the stunning lack --for five years of occupation-- of any accountability for the crimes of the members of the 180,000-strong force that makes up the shadow army of contractors working for the US in Iraq.

Despite the fact that contractors now outnumber US soldiers in Iraq, there have to date only been two prosecutions of private personnel. Unlike Ali, they were charged under US civilian law.

But like Ali's alleged crime, neither of these cases involved offenses against Iraqi civilians. One was a KBR contractor alleged to have stabbed a co-worker; the other was a contractor who pled guilty to possession of child pornography images on his computer at Abu Ghraib prison. There have been at least sixty four US soldiers court martialed on murder-related charges in Iraq alone. Not a single armed contractor--like those that work for Blackwater--has been charged with a crime stemming from their actions in Iraq.

There is great debate in the legal community about whether crimes committed by personnel from Blackwater--which is a State Department contractor--could be, or should be, prosecuted by the military. There are also jurisdictional questions about whether the current US civilian law on contractors--the Military Extraterritorial Jurisdiction Act--could be effectively applied to Blackwater's forces. Congress is considering expanding that Act, but has met resistance from the Administration. The changes have passed the House but the bill is now stuck in the Senate. The bigger issue, however, is that the White House has displayed a complete refusal to hold armed contractors accountable in any effective way. Scott Horton, a lecturer at Colombia Law School, has argued that contractors could be tried under the US War Crimes Act, but that has not happened. "There clearly is jurisdiction and a basis to act against them," Horton says. "But the Bush Administration doesn't want to go there, doesn't want to touch that. I think they've made that point clear."

For all practical purposes, Iraq War contractors have operated in an enforcement- and accountability-free zone, where de facto immunity and impunity have gone hand in hand.
Instead of holding these forces to the same standard as active duty soldiers, the Bush Administration continues to reward Blackwater for its consistently lethal conduct, which numerous US military leaders have bluntly deemed to be at "cross purposes" with the US mission in Iraq and Washington's so-called "counter-insurgency" campaign.

In the two weeks after Nisour Square, Blackwater and the Administration signed more than $140 million in "protective services" contracts in Iraq and Afghanistan and millions more since. On April 4, just as the news of Ali's prosecution was breaking, the State Department announced that it was extending Blackwater's Iraq contract. "We can terminate contracts with the convenience of the government if we have to," said Assistant Secretary of State Gregory Starr.

"And if that was the decision, that we had to terminate the contract, we could terminate the contract." But, of course, they didn't. This could well mean that, like most of US policy in Iraq, the Blackwater "problem" will be left for the next president.

"This is bad news," said Sami al-Askari, a senior adviser to Iraqi Prime Minister Nouri al-Maliki, about the extension of Blackwater's contract. "I personally am not happy with this, especially because they have committed acts of aggression, killed Iraqis, and this has not been resolved yet positively for families of victims." But what is best for Iraqis when it comes to Blackwater and other contractors has never been the US priority. "After careful consideration of the operational requirements necessary to support the US Government's foreign policy objectives in Iraq," Starr asserted, Blackwater's contract was extended. "The US government needs protective services."

As for the translator, Alaa Mohammad Ali, if he is guilty of the alleged stabbing of a fellow contractor, he should face the consequences. The appropriate venue for such a trial is debatable. But the fact that an Iraqi who fled Saddam's regime only to return as a translator to support the US occupation is the token example of the new US "crackdown" on contractors, while the Americans of Blackwater alleged to have gunned down seventeen Iraqi civilians walk around free men, shows just how morally bankrupt the outsourcing of Washington's war--and the de facto immunity offered to the shadow army-- has been from day one.