OpEdNews - Page 4 of Article: Blackwater: Legal Remedy Recommendation

Rather, Blackwater employees, as the Gurantanamo POWs, were subjected to a system of interrogation. Under the balancing test of Geneva, once the US set the precedent for collecting evidence against Guantanamo POWs using coercion, then all other similarly situated prisoners -- including Blackwater employees -- should also expect to be subjected to similar coercive techniques, including false promises.

Once the US set the bar so low for the Guantanamo POWs that any evidence -- however obtained -- could be used against them, then this should have clearly told all Blackwater legal counsel and employees that they could be subjected to similar coercive techniques. Conversely, it would be inconsistent for the US to deprive POWs, protected under Geneva, of a right to challenge evidence; but then grant Blackwater, operating outside Geneva, privileges not afforded to similarly situated interrogation targets.

World Response

If we contrast the US approach to the Geneva POWs with how the Blackwater employees want to be treated, we'll understand the world reaction to the abuses in Iraq. Broadly, Geneva exists to ensure despite warfare, the treatment of non-combatants -- civilians, POWs, and others -- is humane and free from all abuse.

However, once the US treats one set of prisoners at Guantanamo -- who should be protected, because they are acting within the law -- yet, the US provides special favors to Blackwater -- despite their agreeing to operate outside the law, and not be subject to GEneva, despite its relevance -- the World views this as double dealing on the laws of war.

The US's problem is that its abused prisoners in contravention to Geneva; yet its granting legal protections to Blackwater that should not be granted to those operating outside the law. Once Blackwater crossed the line and agreed to operate outside US law, it lost a reasonable expectation that its employees could enjoy any protections of US laws.

Going Forward

A. Review Reasonableness of Reliance in this legal nexus

Blackwater employees have a problem. They've agreed to operated in a combat zone on the assumption that they are "outside" US laws and Geneva; yet, in truth, _some_ sort of legal system must be applicable. Indeed, even if Blackwater "agreed" to be immune to all prosecution as a condition of employment in Iraq, no reasonable person could rely on this promise as it would mean they "could" commit Genocide and not be prosecuted. This is unreasonable on its face; and in contravention to what Nuremberg established: There are some things, regardless the legal excuses, that are not legal and are war crimes.

This case appears to be such a case: A reasonable person working for Blackwater should have known there was some conduct -- regardless any promise of immunity as a condition of employment -- they could not engage. ANy promise that they were "not" subject to US laws is not reasonable in that it creates the false illusion that _no law_ would constrain them.

Putting that aside, this is what appears to have happened: Blackwater employees through they were, indeed, outside the law; and not subject to either the laws of war, UCMJ, or US Law. This is not only impermissible, but not reasonable. Because in asserting that "we are not subject to any law"-argument, Blackwater employees -- under the laws of war -- have allegedly engaged in unlawful combat: They've agreed to operate, rightly or wrongly, _outside_ a system of discipline, leadership, and laws that _is_ subject to rigorous oversight, command, and a legal foundation.

B. Review US Precedent At Guantanmo As Guidance For Reasonableness of Blackwater Assumptions As An Alleged Unlawful Combatant

Because they have stripped themselves of the status of "lawful combatant", we turn back to the US precedents of how "unlawful combatants" -- rightly or wrongly categorized -- _were_ treated; and what a _reasonable_ Blackwater employee and Geneva Counsel _should_ have done once they were legally no longer lawful combatant, but an alleged "unlawful combatant, subject to the Geneva principle of reciprocity."

Reasonable counsel should have said: "The US precedent at Guantanamo is relevant: Those alleged to be unlawful combatants were mistreated; if our employees are also unlawful combatants, we should reasonably expect to be mistreated in the same way." Recall, at Guantanamo, the POWs were subject to coercive interrogation: This should have told Blackwater employees: "Unlawful combatants will be treated harshly"; thus, when they were detained after allegedly killing the Iraqi civilians, those Blackwater employees were not reasonably relying on any grant under US law; rather, they were -- for purposes of this note only -- being subject to the same "interrogation tactics" which the Guantanamo POWs were subject: Deception.

C. Review Doctrine of Evidence Spoliage

Once they were "granted immunity" they should have known here was a formal investigation; and that the evidence in the vehicles should not be destroyed.

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