Enough with the booting, now we’re into the counterstrike. The Blackwater story is blowing up, and what started out as the Iraqi government of Nouri al-Maliki saying “enough is enough” is turning into “way too much” for the Bushies to handle.
We start with this morning’s front page story in the WaPo. It seems the State Department and the Military are having major difficulties getting along, and Blackwater is bringing to a head the entire spectrum of differences in the whole “diplomacy versus military” paradigm.
A confrontation between the U.S. military and the State Department is unfolding over the involvement of Blackwater USA in the shooting deaths of Iraqi civilians in a Baghdad square Sept. 16, bringing to the surface long-simmering tensions between the military and private security companies in Iraq, according to U.S. military and government officials.
In high-level meetings over the past several days, U.S. military officials have pressed State Department officials to assert more control over Blackwater, which operates under the department’s authority, said a U.S. government official with knowledge of the discussions. “The military is very sensitive to its relationship that they’ve built with the Iraqis being altered or even severely degraded by actions such as this event,” the official said.
“This is a nightmare,” said a senior U.S. military official. “We had guys who saw the aftermath, and it was very bad. This is going to hurt us badly. It may be worse than Abu Ghraib, and it comes at a time when we’re trying to have an impact for the long term.” The official was referring to the prison scandal that emerged in 2004 in which U.S. soldiers tortured and abused Iraqis.
“It may be worse than Abu Ghraib” is I think putting it mildly. The events rapidly unfolding now are threatening to reverse even the meagerly defined “gains” made from the escalation in Iraq, and it could unravel the entire planned status quo of our permanent Iraq occupation.
“This is a big mess that I don’t think anyone has their hands around yet,” said another U.S. military official. “It’s not necessarily a bad thing these guys are being held accountable. Iraqis hate them, the troops don’t particularly care for them, and they tend to have a know-it-all attitude, which means they rarely listen to anyone — even the folks that patrol the ground on a daily basis.”
Most officials spoke on condition of anonymity because there are at least three ongoing investigations of Blackwater’s role in the shootings. There are also sensitive discussions between various U.S. agencies and the Iraqi government over the future of Blackwater and other private security firms in Iraq.
A State Department official asked why the military is shifting the question to State “since the DOD has more Blackwater contractors than we do, including people doing PSD [personal security detail] for them. . . . They’ve [Blackwater] basically got contracts with DOD that are larger than the contracts with State.”
According to federal spending data compiled by the independent Web site FedSpending.org, however, the State Department’s Blackwater contracts vastly exceed those of the Pentagon. Since 2004, State has paid Blackwater $833,673,316, compared with Defense Department contracts of $101,219,261.
Yep, that’s right: Blackwater has pulled down ALMOST A BILLION DOLLARS in taxpayer money and they’re being paid to kill Iraqi civilians. State says Blackwater is the military’s problem. The Pentagon says that Blackwater is Condi’s baby. Blackwater is completely radioactive right now and somebody’s got to pay.
That somebody appears to be Blackwater founder Erik Prince.
In the wake of the ongoing Blackwater scandal, Rep. Henry Waxman (D-CA) wants to have a frank discussion with Erik Prince, the company’s founder. His House oversight committee will hold a hearing on Blackwater on October 2. And it just won’t be a party if Prince doesn’t attend.
Waxman sent Prince a letter today requesting his appearance at the hearing. The little-seen Blackwater official probably won’t take kindly to Waxman’s intent to question “whether the specific conduct of your company has advanced or impeded U.S. efforts.”
The Blackwater hearing offers Waxman the opportunity to link the issue with a different investigation his committee is undertaking. Waxman is also looking into whether the State Department’s inspector general, Howard “Cookie” Krongard, obstructed an inquiry into allegations that Blackwater, on a State Department contract, was illegally smuggling weapons into Iraq. Krongard has been invited to an October 20 hearing before the committee.
Indeed, it seems Henry Waxman has his sights set on Condi Rice too.
Rep. Henry Waxman, D-Cal., charged Tuesday that Secretary of State Condoleezza Rice and her aides are trying to impede congressional probes into corruption in Iraq and the activities of controversial private military contractor Blackwater USA.
Waxman, chairman of the House oversight committee, complained in a letter to Rice that the State Department this week barred its officials from talking to Congress about corruption in Iraqi Prime Minister Nouri al Maliki’s government unless those discussions are kept secret.
The department also retroactively classified a study drafted by the U.S. Embassy in Baghdad that reportedly details extensive corruption in al-Maliki’s government, Waxman said.
“Your position seems to be that positive information about the Maliki government may be disseminated publicly, but any criticism of the government must be treated as a national security secret,” Waxman told Rice.
“You are wrong to interfere with the committee’s inquiry,” he wrote.
Of course, Condi’s already ducking one Waxman investigation. This one she may not be able to get away with.
State Department spokesman Tom Casey disputed Waxman’s version of events.
“There seems to be misunderstanding as to the facts in this matter. The information requested by the committee has been or is in the process of being provided,” Casey said.
On another Waxman complaint, that Rice has refused to testify before the panel, Casey said the department has offered to make three other senior officials available.
Waxman’s committee is also investigating the role of private military contractors in Iraq, including Moyock, N.C.-based Blackwater USA.
Blackwater, which has received roughly $700 million in State Department contracts to protect U.S. government civilians in Iraq, is under fresh scrutiny following a September 16 incident in which Blackwater security guards protecting a State Department convoy allegedly shot and killed 11 Iraqi civilians. Blackwater says its employees were returning fire from insurgents, a version of events disputed by the Iraqi government.
Waxman’s panel has requested that Erik Prince, chairman of the Prince Group LLC, Blackwater’s corporate parent, appear before it next Tuesday.
But you’d be insane to think that the State Department would even think about allowing anyone from Blackwater to say a single word under oath.
But in a letter to Blackwater dated September 20-the same day as the panel’s request-a State Department contract officer ordered Blackwater not to disclose information about the contract.
“I hereby direct Blackwater to make no disclosure of documents or information generated under” the State Department contract “unless such disclosure has been authorized in writing,” wrote the contract officer, Kiazan Moneypenny.
She also wrote that State Department and Blackwater officials discussed the matter by phone on September 19 and 20, and that, as a result, “the department’s position on this matter has been further reinforced.”
Moneypenny did not respond to a message left on her office voicemail and officials in the department’s Bureau of Administration, which oversees contracts, referred questions to State Department spokesmen.
Casey said “Blackwater has been informed by the State Department that it has no objection to it providing information to the committee.”
In a related letter to Waxman, an attorney for Blackwater said it might be “difficult, if not impossible” for the company to comply with State’s orders without advance limitations on the kind of questions that will be asked at the hearing.
“We also write today to ask that the committee and its members refrain from asking questions during the hearing that might reveal sensitive operational and technical information that could be utilized by our country’s implacable enemies in Iraq,” wrote attorney Stephen M. Ryan of McDermott, Will & Emery.
So it seems executive privilege extends to people in the government but to government contractors as well. Nobody in Blackwater can testify because of course it would be breaking Blackwater’s contract with the all powerful unitary executive. Not even congressional oversight as a check and balance to state department contractors is allowed to be exercised. Indeed, the argument is that if Blackwater says anything, it’s a national security breach.
But how long can the right make the argument that Bush’s private army of mercs is entitled to the same unassailable protections that the President is (apparently) entitled to? Do the Bushies really want to give such an obvious test case to the Supremes? They must be already confident of the legal outcome of this, and that’s what is so terrifying.
For Blackwater in a very real sense would represent Bush’s Praetorian Guard, his SS, his elite enforcement arm. It would answer to no one but Bush himself. In a sense, the State Department, America’s diplomatic arm now has its own private army, bought and paid for with our money. And it’s just one small part of the thousands of PMC mercs serving the executive branch. No oversight. No accountability. No stopping them. Not subject to the same posse comitatus restrictions on the military. Not subject to anyone but the President.
Exactly who will Bush turn this army on next? What about the next President? How will this all shake out?
Update [2007-9-26 12:29:59 by Zandar1]: It turns out that of all sources, National Review is reporting that Blackwater may actually be prosecutable under the UCMJ, due to an amendment by Senator Lindsey Graham of all people.
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.”
“It’s the single biggest legal development for the private military industry since its start. It holds the potential, and I emphasize ‘potential’ here, to finally bring some legal status and accountability to a business that has expanded well past the laws,” said Brookings Insitute Fellow Peter W. Singer, who’s both an acknowledged expert on private security forces and a sharp critic of them, back in January.
Seems the old school conservative right doesn’t like the idea of a Presidential private army either, but they say there’s little chance of the Army actually doing anything about Blackwater.
Potential is right, but no one in the military is ready to seize the day and exercise their authority over contractors. One JAG officer I spoke to — who emphasized he was not speaking on behalf of the whole military or offering any explicit legal opinions about the issue — said trying contractors in military courts is “pretty radioactive.”
“I have asked some senior Army prosecutors about it and they laughed and shook their heads about what the prosecution would look like,” he said. “I mean nobody wants to be the first to touch it or try to use it, [it’s] not expressly a criticism of the extension of jurisdiction itself.”
Further confounding the problem is that while the UCMJ was amended in late 2006, the 2007 update of the Manual for Courts Martial offers no clarification on how the new language should be implemented. According to Army Lawyer, an official Army publication, “Subjecting contractor personnel to the UCMJ during all contingency operations appears to constitute a significant change rather than a clarification. No legislative history explains this change. Further, as there is no published guidance, it is unclear how this change will be implemented and precisely what the ramifications will be.” Translation: We’ll let somebody way above our pay grade decide what this means before we start bringing contractors to court — particularly since there are far more legal precedents for protecting civilians from military trials (notably Reid v. Covert), rather than vice versa.
However, the recent Blackwater hubbub illustrates that we may be reaching critical mass within the political, legal and military realms for providing explicit guidelines for how private military contractors should be regulated. In fact, it’s so problematic I suspect Blackwater itself might welcome clarification on this important point, even if the company’s leaders aren’t overjoyed at the prospect of more scrutiny or being encumbered with excess regulation.
Could this be one of those rare issues both the traditional right and the traditional left both agree to hate? If so, there may be a chance on this gaining more ground.
We’ll see.
