Disclaimer: These are not statements of fact, but private, personal opinions which may or may not be widely held, and are not statements of law; nor are they assertions of any judicial findings from any tribunal. It doesn’t matter if there are “holes” in US laws; Geneva remains unblemished.
Blackwater can be adjudicated under Geneva
The laws of war are binding on all combatants, regardless their willingness to be bound by the laws of war; or their belief about their accountability to any law. Combatants acting with the belief that they are not accountable to any law
impermissibly allows combatants to descend to barbarism, in contravention to the objectives of Geneva in regulating combat operations.
When combatants ignore the laws of war; or, through their conduct and statements, show they are not willing to be bound by the laws of war, then the protections of the laws of war may be denied by a competent tribunal. Justice is not served when employees presuming that no laws of war hold them accountable; and/or act outside the law, yet are granted shields and immunities not afforded to similarly situated prisoners. It appears the following legal conclusions are reasonable by a grand jury,
inter alia:
All evidence gleaned from the
Blackwater employees was made without any _lawful_ promise by a competent _tribunal_ to grant that immunity;
All promises
Blackwater employees, while under interrogation for alleged war crimes, were or should have been known to be methods to induce intelligence gathering, and secure information in a combat environment; and any method to glean information should
foreseeably been known to include any method, including "foreseeable torture or abuse" including false or unenforceable promises by interrogators outside the tribunal;
Blackwater employees knew, or should have known, that the grant of immunity was not by a competent tribunal; any promise of immunity they knew could only be enforce by a tribunal; any promise of immunity by an interrogator or fact finding was or should have been known to be not enforceable as a right of any defendant acting outside US laws, or conducting their military affairs as if US laws or Geneva were not applicable;
Blackwater employees were not lawful combatants; were not protected by US law; nor were they in a position in this situation in Iraq to negotiate for protections of any laws related to immunity, shields, agreements, or contracts;
Blackwater employees and legal counsel did not reasonably conduct themselves within all legal requirements; in doing so, they do not appear to be entitled to privileges afforded only to lawful combatants;
Adverse inferences are warranted. The destruction of the evidence on the vehicles was, or should have been known to be related to an alleged effort to spoil evidence, in contravention to reasonable standards of conduct
Blackwater employees knew or should have known were applicable in a serious incident; competent counsel should have immediately known that the vehicles should have been safeguarded as evidence; assertions that the vehicles "had" to be returned immediately are not supported by a reasonableness standard, especially given their alleged involvement with a serious alleged war crime involving non-combatant Iraqi civilians;
All evidence gleaned from
Blackwater should be admissible; all evidence of
spoliage should be fully admissible to The Hague and or war crimes tribunal, with adverse inferences. The information was obtained under interrogation conditions where
Blackwater employees knew, or should have known, they might be subject to promises that were not enforceable, or they were not entitled; therefore,
Blackwater employees should be DENIED the chance to rely on any promise of immunity; the evidence gleaned through these interrogations should not be shielded; and the promised immunity is not enforceable.
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
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.
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.
D. Examine Reasonableness of Expecting Any Privilege or Immunities While Allegedly Knowingly Operating Outside Geneva Protections, And Beyond A Reasonable Expectation of That Shield
Again, the Blackwater employees should have known the following: They were acting outside US laws and Geneva; they were not, as required of lawful combatants, acting under a system of discipline that _was_ consistent with Geneva; and yet were _unreasonably_ expecting to enjoy privileges of promises, immunity, and protections not afforded to similarly situated prisoners at Guantanamo.
Blackwater is asking that it stand on both sides of the aisle in re Geneva and the laws of war: That the laws do not apply to their conduct, but are only applicable when invoking shields. That fence sitting was _not_ a privilege granted to any POW at Guantanamo, but the opposite was true: Despite Geneva being applicable, it was not afforded; and despite protections being required, they were denied. Blackwater wants the opposite: To be outside the laws when it comes to respecting the leash on its use of power; but it wants to enjoy the shields of Geneva despite Blackwatrer not demonstrating it was, at all times, a lawful combatant subjecting itself to legal oversight.
E. Review Appearance of Justice
From what little we know, it appears the US government's problem is the precedent established at Guantanamo; Yet, it asks the world to forget Geneva when it comes to imposing like abuses against the similarly situated combatants under Blackwater. When the world sees this double standard on Geneva, the US support plummets.
F. Review ICC Jurisdiction, Benefits of ICC Adjudication
The way forward is for the US to wash its hands of the mess at Guanatanamo and Blackwater, and subject all US government legal counsel and Blackwater employees to ICC jurisdiction, for The Hague to adjudicate:
- To what extent did US legal counsel deprive POWs of protections;
- To what extent did Blackwater violate the laws of war, and unreasonably rely on legal protections and promises or privileges it was not, as an alleged unlawful combatant, to rely on during an interrogation
The issue isn't narrowly whether Blackwater was or wasn't properly treated, or whether the employees gave evidence they were or were not required to give; but whether the protections under Geneva have or have not been reasonably enforced to all combatants and civilians. The US and Blackwater have, by their actions, allegedly shown contempt for Geneva and laws of warfare, but should be respected by civilized nations.
The US government appears to be tainted: It cannot credibly gather evidence in this legal nexus; nor can it credibly enforce or revoke privileges or protections for one class of prisoners while denying to similarly situated prisoners the same protections and privileges. The way forward is for the US to accept that its legal community has not effectively enforce Geneva; and the civilian leadership want to inconsistently punish some combatants, while rewarding others despite their both engaging in alleged illegal warfare as unlawful combatants. Only the ICC can credibly differentiate between lawful or unlawful combatants at Guantanamo and Blackwater; and only the ICC can maintain an appearance of independence which justice requires. The Hague can decide whether evidence was or was not consistently gleaned through abuse, unlawful means; or obtained despite lawful reuses; or lawfully gleaned despite no reasonable reliance on any promise by the detaining power.
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.
Posted April 26, 2008 | 12:40 PM (EST)