OpEdNews - Page 3 of Article: Blackwater: Legal Remedy Recommendation

This note argues that the proper legal framework which the Blackwater legal counsel should have made clear to the employees was: Since we are in Iraq and not subject to US laws, then we are not entitled to any protections; if you are promised anything under US laws to induce you to provide information, that promise -- because we are operating outside US laws -- is not a promise that is enforceable.

The specifics of Blackwater employees Combatant status

Under the laws of war, one requirement for a combatant to be a "lawful combatant" is that they are under the command of an organization leader, and subjected to various other standards including a system of discipline. That'ts the theory.

In practice, Blackwater is a special case:It's a contractor, but it is arguing -- and the US has implicitly accepted -- that Blackwater employees are "not under any US laws" while in Iraq.

Fine, let's accept that assertion: That, contrary to Geneva requirements in re "lawful combatants," Blackwter employees -- because they were acting utside US laws; and the US laws are asserted to be not applicable to their conduct -- should be classified as unlawful combatants: They were not acting under lawful authority responsible to a system of laws. Blackwater would argue that "no law" applies to them: Neither the laws of War in Geneva; nor US laws.

The problem with this assertion: _some_ laws must apply, otherwise we have barbarism. The issue is subtle: Just because "Blackwater and the US government agree that there are problems regulating Blackwater under US laws" it doesn't mean that Blackwater cannot be held accountable. The question becomes: Which standards would or should guide blackwater? The answer: Geneva and the Nuremberg precedents. Said another way: Even if the DOJ briefed Congress in December 2007 that they would have problems prosecuting Blackwater because of the immunity agreement, Geneva would be a source of law to guide the discipline process.

This note argues that a grant of immunity to a contractor deemed to be an unlawful combatant in this legal nexus -- is not one Blackwater should have relied on. Rather, when a contractor knows, asserts, and acts as if it is outside the law, for the purposes of privileges: It is outside the protections of those privildge. However, Blackwater appears to want it both ways: To be both "not subject to" either US law or Geneva as a standard of conduct; but entitled to protections of Geneva and US law respecting the promise of immunity.

This note argues the opposite: Once Blackwater acted outside the law, and agreed to engage in combat that was "not" subject to any law; and understood to be "not regulated" by Geneva, then BLackwater was stripped of any reasonable expectation that it could rely on any promise, agreement, or grant of immunity through US law.

Comparing Interrogations of POWs at Guantanamo to the INterrogation of Blackwater Employees

Let's revisit the US precedent of how the US treated POWs at Gurantanamo. Rightly or wrongly, the US DOJ said in Federal Court that the prisoners' evidence -- gleaned from alleged torture or waterboarding -- was "foreseeable"; and this was within the rules which the US was "allowed" to operate when interacting with the prisoners. They were deemed unlawful combatants while in custody, and were asserted to not enjoy any Geneva protections.

Let's take the above argument -- rightly or wrongly -- as the legal foundation or precedent the US government set. Whether that precedent was legal is secondary to the larger principle of Geneva: That similarly situated prisoners should be treated the same. Under Geneva, this principle was intended to mean that any protection provided to US troops under the UCMJ should be provided to prisoners held at Guantanamo; in practice this has been turned on its head. We leave that for another day.

Let's focus not on what Geneva intended, but what the US first did. Geneva creates a checking mechanism: If an army or military refuses to enforce, abide by, follow, respect or adhere to Geneva Convention requirements, constraints, or protections, then other nations on the principles of retaliation and reciprocity can commit like abuses.

Despite this principle of reciprocity, the US continued to mistreat Prisoners at Guantanamo, Abu Ghraib and Eastern Europe. Putting that aside, the issue with respect to Blackwater is: Should a "similarly situated" combatants be Blackwater employees and POWs at Guantanamo?

This note argues with a resounding, "Yes." Similarly situated means: Do the prisoners substantially enjoy the same conditions; have they engaged in the same kinds of conduct; and are they being subject to the same system of justice. If what was imposed on the Guantanamo POWs was "good enough" -- rightly or wrongly -- then those conditions should also be imposed on Blackwater.

Review

Blackwater's reliance on the promise of immunity is not reasonble. Legal counsel knew, or should have known, that Blackwater was acting outside US law and Geneva; and in doing so, could not reasonably rely on any promise only enforceable by US law. Once Blackwater agreed to allegedly violate Geneva, it lost all reasonable expectation that it could enjoy protections of US law; or that any promise made to any Blackwater employee was enforceable, or would be honored.

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