Today’s Washington Post reports here that DOJ has sent target letters to six Blackwater security guards arising from a September 2007 firefight in Iraq that reportedly resulted in 17 Iraqi civilian deaths. According to the article, “The sources said that any charges against the guards would likely be brought under the Military Extraterritorial Jurisdiction Act, which has previously been used to prosecute only the cases referred to the Justice Department for crimes committed by military personnel and contractors overseas. Legal experts have questioned whether contractors working for the State Department can be prosecuted under its provisions.”

The article also reports, “Lawyers for the Blackwater guards have argued in ongoing discussions with prosecutors that the Military Extraterritorial Jurisdiction Act, known as MEJA, can be applied only to contractors working for the Defense Department, two sources said. That position appeared to be buttressed by the Congressional Budget Office, which said in a report on contractors in Iraq released last week that MEJA ‘does not apply to civilians working . . . for federal departments or agencies other than DOD [the Department of Defense].’

“Legislative proposals to extend MEJA’s provisions beyond the Defense Department — which have been repeatedly opposed by the White House — have made the same point.

“But the question has never been tested in court. Some outside legal experts said that prosecutors would be able to make a compelling argument that MEJA covers Blackwater guards involved in the shooting under a 2005 amendment that expanded MEJA’s provisions to include contractors ‘supporting the mission of the Department of Defense.'”

16 Responses to “WaPo reports DOJ is moving toward MEJA prosecutions of 6 Blackwater security guards”

  1. Anonymous says:

    If it’s true that these guards cannot be prosecuted under MEJA, then there’s a quick fix — turn them over to the Iraqis for prosecution.

  2. dreadnaught says:

    Turning them over to the Iraqis is not an option.

  3. Cloudesley Shovell says:

    So, assuming prosecutions are brought, will courts strictly construe these jurisdictional statutes? I doubt it.

    I think what we’re seeing is the start down a very slightly inclined, but nonetheless very slippery, slope towards Congress asserting criminal jurisdiction over US citizens, no matter where located, regardless of national borders.

  4. DB Cooper says:

    My recollection is that one of the CPA orders (7 or 14, I think), which is still in effect, immunizes all US contractors and service members from the Iraqi legal process (criminal and civil), regardless of which department they fell under.

  5. Anonymous says:

    I fear the end result will be to have the military now be responsible for contracting such civilians even if they work for the DoS.

  6. Anonymous says:

    Dear Dreadnaught,

    Thanks for the definitive statement, but of course it’s an option. You put them on a plane, the plane flies to Baghdad, and you turn them over to Iraqi authorities.

    We could call it extraordinary rendition…

  7. Anonymous says:

    At some point, the US insistence on the rule of law in treating its own, while trampling on the rest of the world will come back to haunt us.

    By the way, how is it that a paid gun is a lawful combatant? I’ve got to believe that in some Iraqi eyes, particularly the relatives of the 17 dead civilians, these Blackwater folks are unlawful enemy combatants.

  8. egn says:

    These Blackwater contractors were, at least nominally, security guards for Department of State. So long as you accept the premise that DOS was functioning under authority of law in Iraq, then their security detail cannot be independently deemed “unlawful enemy combatants.” Now the question of whether they had gone outside the scope of their mandate and of the law in conducting their activities is another matter — presumably the reason why we’re seeing target letters for criminal prosecutions in these cases.

  9. Anonymous says:

    cloudesley: Can’t Congress already do that? Isn’t it already criminal for a US citizen to travel overseas for child sex? And isn’t the United States exercising criminal jurisdiction over its citizens a good thing?

  10. Cloudesley Shovell says:

    Anon at 0707 am–

    1. No, Congress cannot, in my opinion, but then what the Constitution permits Congress to do and what Congress actually gets away with are two very different things. Where do people get the idea that the US Gov’t has worldwide limitless power over its citizens?

    2. I don’t know what the law is concerning overseas travel for the purpose of child sex. My opinion is any such law should be unconstitutional, no matter how represensible the targeted conduct. What’s next, imprisoning high school students who go to Europe for the summer and drink alcohol even though they’re not 21 years old?

    3. The United States exercising criminal power over private citizens outside the borders of the United States is an awful idea, unsupported by any grant of power in the Constitution, and completely contrary to the idea that each individual nation is the sovereign over its own territory. (Note that I’m talking about private citizens here, not UCMJ issues where Congress is explicitly granted the power to regulate the land and naval forces.)

  11. Anonymous says:

    Cloudsley: There are a whole host of federal criminal statutes with extraterritorial jurisdiction. Common ones involve conspiracies, terrorism, money laundering, narcotics trafficking, and child sex. You think this is a bad thing?

  12. Cloudesley Shovell says:

    The real question is, should the entire US code, criminal and all, apply to US citizens at all times and all places, without regard to national borders? No.

    As for the host of criminal statutes that apply outside the United States, please cite to some examples. Do they really purport to reach conduct that occurs entirely outside the US, or is there an element that includes conduct inside the US?

  13. Anonymous says:

    I do not have time to educate you. Please educate yourself.

  14. Anonymous says:

    I do not have time to educate you. Please educate yourself.

  15. Cloudesley Shovell says:

    Gee, I thought I was engaging in a somewhat interesting debate about the scope of Congress’ criminal jurisdiction, where each person cites to some authority for his argument.

    I see now that I am totally outclassed. Truly, you have a dizzying intellect. Allow me to retreat in shame and dishonor to Porthellick Cove. . .

  16. Anonymous says:

    And for emphasis it was stated twice.