Geneva does not recognize, as a defense to war crimes, that conduct is a "state secret". Such a legal conclusion would impermissibly permit perpetrators of war crimes to hide evidence of their Geneva violations behind a shield they knew, or should have known they could not reasonably expect any tribunal to recognize. Until the United States court system is brought fully under Geneva, it is our view that all judicial proceedings related to Blackwater, rendition, Guantanamo, and prisoner abuse are not competent; and not consistently enforcing Geneva relative to all detaining powers, combatants, non-combatants, and civilians.
Any court which refuses to enforce fully the laws of war, including on issues of Rendition, and inconsistently grant immunities and privileges to lawful or unlawful combatants should be subject to the same Nuremberg proceedings of the Justice Trial.
It is foreseeable that Members of the US Supreme Court could be adjudicated with war crimes before The Hague in re their alleged refusal to fully enforce Geneva against all combatants and detaining powers. The Hague appears fully positioned to impose like retaliation and reciprocal action, as permitted under Geneva: It too may assert its rendition program is a "state secret" of The Hague. The US Supreme Court, and for the most part US federal Courts and lawyers appear to be on the wrong side of the laws of war and Geneva Conventions; and the Justices and current/former US government legal counsel, in failing to fully enforce Geneva against all detaining powers, could foreseeably be rendered to The Hague/ICC. Whether The Hague seeks and secures the assistance of foreign powers outside the United States to enforce its "state secret rendition program to enforce Geneva before the ICC" remains to be seen.
If the above personal opinions and private views are not supported by US courts, then the best approach is to forward these cases to The Hague for adjudication. There is no statute of limitations.
Recommendation:
We urge the US to turn over to The Hague the Blackwater defendants; and release to The Hague all POWs held at Guantanamo for adjudication. The Hague can decide whether their detention was or was not lawful; and whether the evidence justifying their continued detention has or has not been a subsequent war crime. Then, The Hague can decide whether Blackwater leadership, US legal counsel, and US civilian policy advisors and civilian leadership should or should not be indicted for permitting, not stopping, or advising of these alleged war crimes.
Disclaimer: This is a draft opinion and personal view; not to be construed as a statement of law, nor a discussion of non-public information. All information below is gleaned through open sources and subject to revisions. Blackwater is not being accused of any crimes; all mentions of illegal warfare are to be construed as "alleged" war crimes; or "alleged unlawful combatants." All Blackwater employees are presumed innocent until proven guilty before a competent tribunal.
Some Blackwater employees are under investigation because they allegedly killed Iraqi civilians. The issue before the US Congress, Court, and Department of justice is the promise of immunity the State Department granted Blackwater: In exchange for truthful testimony, the Blackwater defendants allegedly involved were granted immunity. In December 2007, DOJ Staff briefed Congress about the problem: The State department immunity was not planned nor desired.
The question is whether evidence needed to convict the Blackwater employees could have been obtained without the grant of immunity; and, now that immunity has been granted, is there no possible way to prosecute any of the Blackwater employees.
In a broader context, the problem facing the US government is the issue of contractors used in a combat zone. This note is intended to provoke discussion and not be a legal argument for or against the US government policy or the Blackwater defendants.
The problem of operating outside US law and Geneva, yet expecting legal protections to be available
What is striking with the Blackwater situation and grant of immunity is Blackwater is alleged to be sitting on both sides of US Law: First asserting US laws do not apply to their conduct, or that they are subject to any prosecution; yet, also taking the opposite view: That regardless the ability of US prosecutors to prosecute Blackwater employees, Blackwater employees should rely on, and have the promise of immunity respected.
The inconsistency between US treatment of Guantanamo POWs and how Blackwater wants to be treated
Blackwater is asking that POWs held at Guantanamo not be a precedent for US treatment of Blackwater. This note argues the precedent -- rightly or wrongly -- of treatment of POWs and/or "unlawful combatants" at Guantanamo and Abu Ghraib should be relevant. The US cannot credibly ask that some be deprived of protections; while similarly situated personnel be entitled to unreasonable privileges outside their combatant status.
Using the precedent of US treatment of prisoners as a legal basis to revoke the promised immunity for Blackwater
When the US interrogated the Blackwater employees, the US granted immunity. However, let's consider the larger legal issues: When Blackwater was operaring in Iraq, they knew or should have known that the the legal nexus -- rightly or wrongly -- did not place them under any US jurisdiction.
This means -- focusing narrowly on the issue of whether the US could or could not prosecute; or whether the Blackwater employees could or could not rely on US laws -- the Blackwater employees should have have known they were niether subject to US laws for either prosecution nor protection.
Blackwater wants it both ways: They want to be immune to the US laws on issues of war crimes; yet, when it comes to legal protections, Blackwater wants to enjoy the US privilege of immunity in exchange for truthful testimony.
Blackwater legal counsel duties to fully prepare Blackwater employees for the legal nexus
Some Blackwater employees are under investigation because they allegedly killed Iraqi civilians. The issue before the US Congress, Court, and Department of justice is the promise of immunity the State Department granted Blackwater: In exchange for truthful testimony, the Blackwater defendants allegedly involved were granted immunity. In December 2007, DOJ Staff briefed Congress about the problem: The State department immunity was not planned nor desired.
The question is whether evidence needed to convict the Blackwater employees could have been obtained without the grant of immunity; and, now that immunity has been granted, is there no possible way to prosecute any of the Blackwater employees.
In a broader context, the problem facing the US government is the issue of contractors used in a combat zone. This note is intended to provoke discussion and not be a legal argument for or against the US government policy or the Blackwater defendants.
The problem of operating outside US law and Geneva, yet expecting legal protections to be available
What is striking with the Blackwater situation and grant of immunity is Blackwater is alleged to be sitting on both sides of US Law: First asserting US laws do not apply to their conduct, or that they are subject to any prosecution; yet, also taking the opposite view: That regardless the ability of US prosecutors to prosecute Blackwater employees, Blackwater employees should rely on, and have the promise of immunity respected.
The inconsistency between US treatment of Guantanamo POWs and how Blackwater wants to be treated
Blackwater is asking that POWs held at Guantanamo not be a precedent for US treatment of Blackwater. This note argues the precedent -- rightly or wrongly -- of treatment of POWs and/or "unlawful combatants" at Guantanamo and Abu Ghraib should be relevant. The US cannot credibly ask that some be deprived of protections; while similarly situated personnel be entitled to unreasonable privileges outside their combatant status.
Using the precedent of US treatment of prisoners as a legal basis to revoke the promised immunity for Blackwater
When the US interrogated the Blackwater employees, the US granted immunity. However, let's consider the larger legal issues: When Blackwater was operaring in Iraq, they knew or should have known that the the legal nexus -- rightly or wrongly -- did not place them under any US jurisdiction.
This means -- focusing narrowly on the issue of whether the US could or could not prosecute; or whether the Blackwater employees could or could not rely on US laws -- the Blackwater employees should have have known they were niether subject to US laws for either prosecution nor protection.
Blackwater wants it both ways: They want to be immune to the US laws on issues of war crimes; yet, when it comes to legal protections, Blackwater wants to enjoy the US privilege of immunity in exchange for truthful testimony.
Blackwater legal counsel duties to fully prepare Blackwater employees for the legal nexus
