Recent news reports announced that the four Blackwater guards found guilty in the September 2007 Nisour Square shooting incident plan to appeal their convictions. Nisour Square was one of the most infamous incidents involving the excessive use of lethal force by private security contractors in the Iraq conflict. Prosecutors accused the guards of being involved in 14 deaths of Iraqi civilians, and the four defendants received various sentences ranging from life in prison for first-degree homicide to minimum 30-year sentences for manslaughter and weapons-related charges. The guilty verdicts against the four guards was also heralded by many as one of the few examples of accountability for private security guards involved in committing gross human rights violations.
The appeal of their guilty verdict is based on two factors. First, the defendants’ lawyers claim that one of the key witnesses for the prosecution, an Iraqi traffic officer, significantly changed his testimony after the trial. Second, as was to be expected and far more significantly for other such cases in the future, the defendants’ lawyers plan to challenge the use of the Military Extraterritorial Jurisdiction Act (MEJA), to charge the four guards. They argue that MEJA only applies to contractors in support of a Department of Defense (DoD) mission. The Blackwater guards were working for the Department of State (DoS) at the time.
Should they succeed in moving their appeal forward, there will likely be much debate about what the DoD mission in Iraq was and how the DoS fit into that. However, what this appeal points to is the ongoing failure to close a glaring loophole in the law that does not allow U.S. government contractors to be subjected equally to federal statutes when they commit certain crimes. There have been repeated bi-partisan efforts to address this gap through the passage of the Civilian Extraterritorial Jurisdiction Act (CEJA). In July 2014, Senator Leahy and Congressman Price introduced CEJA in both houses. The bill went nowhere.
There is no justification for not closing this loophole. The jurisdiction of federal courts must be extended to apply to all U.S. government contractors operating on behalf of the government overseas. CEJA would also supply the U.S. Attorney General’s office with the needed investigative resources to successfully prosecute cases. The private security industry itself has been supportive of the legislation. One wonders what is stopping Congress from passing it?