The slow arm of the law in relation to the grand scale of privitization of government bureaucracy stands in sharp contrast to rules about wiretapping and such. Some of this is understandable, but I have seen no proposals. If this is to be the practice, are’nt we a little slow?
As recently as Oct. 3, Defense Secretary Robert M. Gates indicated that no decision had been made on how to apply the new language. In other statements, Pentagon officials have suggested that they would apply the military code to Defense Department contractors. That could leave contractors working for other agencies, such as Blackwater, outside military law.
Neither the Pentagon or the U.S. Embassy in Baghdad responded to requests for comment.
In any case, military lawyers have yet to determine how to put the new language into effect. Among the questions they are wrestling with are these: What categories of crimes should it cover? How should it treat employees who are not American citizens? What are the chances that the provision would be upheld by the Supreme Court?
“There’s also a very open constitutional question about whether we can try civilians in military courts,” said Laura Dickinson, a professor of law at the University of Connecticut and an expert on laws that govern private contractors in conflict zones. Traditionally, there has been resistance to doing so, but Ms. Dickinson said she believes a case could be made that private security contractors authorized to use force would be covered by the code of military justice.
The options under civilian law are little better. The most likely way to prosecute would be through the Military Extraterritorial Jurisdiction Act, which allows the extension of federal law to civilians supporting military operations. Mr. Horton, the Columbia lecturer, said he believed that “a sound basis” existed for using the act to prosecute security contractors.
However, trying a criminal case in federal court requires guarantees that no one has tampered with the evidence. Because a defendant has the right to cross-examine witnesses, foreign witnesses would have to be transported to the United States.
Robert Litt, a former federal prosecutor and deputy assistant attorney general in the Justice Department’s criminal division, said that if anything like the Blackwater shootings occurred in the United States, “within minutes you would have police there securing the crime scene, interviewing witnesses.”
“You’ll have a secure chain of evidence,” he added. “All that requires people on the scene almost simultaneously.”
Several legal experts said that evidence gathered by Iraqi investigators and turned over to the Americans, even within days, would probably be suspect.
Another law that might be applicable is one covering contractors in areas that could be defined as American territory, such as a military base or the Green Zone. But the Blackwater security contractors in the Sept. 16 shootings were in neither place.
It appears the Blackwater ‘issue’ makes for a small proxy skirmish for Maliki, and a possible wedge to actually gain some independence for the sovereign government. Tactical moves for them, but what of US law and order?