Patterico's Pontifications

12/4/2008

Blackwater Guards may be Prosecuted under US Drug Law

Filed under: Law,War — DRJ @ 3:40 pm



[Guest post by DRJ]

Blackwater guards involved in a 2007 Baghdad shooting that killed Iraqi civilians may be prosecuted in the U.S. under a drug law that carries a 30-year mandatory sentence for using machine guns in the commission of a crime:

“Charges could be announced as early as Monday for the shooting, which left 17 civilians dead and strained U.S. relations with the fledgling Iraqi government. Prosecutors have been reviewing a draft indictment and considering manslaughter and assault charges for weeks. A team of prosecutors returned to the grand jury room Thursday and called no witnesses.

Though drugs were not involved in the Blackwater shooting, the Justice Department is pondering the use of a law, passed at the height of the nation’s crack epidemic, to prosecute the guards. The Anti-Drug Abuse Act of 1988 law calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, whether drug-related or not.”

Blackwater has cooperated with the investigation but maintains its employees responded appropriately to an ambush by insurgents:

“The company has consistently said that we do not believe the individuals acted unlawfully,” company spokeswoman Anne Tyrrell said Thursday. “If it is determined that an individual acted improperly, Blackwater would support holding that person accountable.”

I assume this is being prosecuted in the U.S. in part to avoid Iraqi efforts to try the Americans in Iraqi courts. I agree with the sentiment but the article points out it’s “unclear on whether contractors can be charged in the U.S., or anywhere, for crimes committed overseas.”

This also bothers me for two other reasons. First, it concerns me that the prosecutors are using weapons laws to provide for enhanced punishment of persons authorized to use the guns they were carrying for military or law enforcement purposes (or, in this case, for authorized quasi-military or law enforcement-related purposes in a war zone). This reminds me of the Ramos-Compean prosecution, and I think that was a poor prosecutorial decision. Second, this isn’t a drug case, and using the law to treat it like one sends a questionable message.

— DRJ

48 Responses to “Blackwater Guards may be Prosecuted under US Drug Law”

  1. Well, I guess the suggestion to use Blackwater guards to defend ships off the east African coast will be dropped. The company has become such a leftist punching bag that I’m sure they are not interested in high profile jobs anymore. As usual, Bush seems to be trying to curry favor with people who would turn up the thermostat if they saw him in hell.

    Mike K (f89cb3)

  2. “Second, this isn’t a drug case, and using the law to treat it like one sends a questionable message.”

    the only message i get is that certain parts of the government bureaucracy are on a vendetta…..

    what more does one need to know? hell, they might as well just announce the sentences and be done with it.

    redc1c4 (27fd3e)

  3. “Second, this isn’t a drug case, and using the law to treat it like one sends a questionable message.”

    This isn’t treated like a drug case. As you’ve described it, this prohibition clearly isn’t limited to drug crimes. I’d say its almost misleading to call this a ‘drug law.’

    imdw (81eb09)

  4. I wonder what other creative uses of the law could be applied here. Let’s see…

    This was clearly a racially or ethnically motivated crime, since the Blackwater employees are all Westerners (probably white) and their “victims” were all Middle Easterners, almost certainly all Muslims. Can’t we add years to the sentence for hate crimes?

    The Blackwater pirates committed their crimes during the prosecution of an unjust war. That makes this a war crime.

    They were quasi-law enforcement personnel, weren’t they? Obviously they weren’t military, so they must have been law enforcement. Therefore, since they didn’t read the victims their Miranda rights, didn’t shout “Freeze” or any warning before shooting, then there are probably numerous civil rights violations here.

    Any other ideas for sentence enhancement?

    Oh… the verdict has to come first? Surely that’s a technicality.

    Gesundheit (9ca635)

  5. Has the American Judicial System become a World-Wide Enterprise?
    Are there no geographical limits to the reach of American law?
    These men were contracted by the Dept. of State to protect State Dept. personnel, and designated foreign personnel vital to the function of the Dept. within the country of Iraq.
    They are now to be prosecuted under firearms laws for the use of firearms in the completion of their duties?
    Duties which saw many of their numbers wounded and killed, but not one protectee harmed by hostile forces.
    Are there no adults within the Government who will stand up and cry out that this is not just wrong,
    but immoral?
    Is it becoming time to dust off that ancient document written by an obscure lawyer from Virginia in the Summer of ’76, and apply it to the new tyranny that has arisen amonst us?

    Another Drew (410846)

  6. The question of jurisdiction is a really big one. I don’t see how US courts have jurisdiction here.

    Steven Den Beste (99cfa1)

  7. Complete bullshit – once again, those opposed to the war are trying to settle old scores via vendettas towards those attempting to protect our civilians working in Iraq. Cowardly and pathetic, there are no other words to describe this action.

    Dmac (e30284)

  8. The Anti-Drug Abuse Act of 1988 law calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, whether drug-related or not.</blockquote>

    Second, this isn’t a drug case, and using the law to treat it like one sends a questionable message.

    The article linked mentions only machine guns with a thirty year minimum sentence. In fact there are parallel laws imposing lesser sentences for the use of any gun in a crime. In practice they give prosecutors a way to nail someone who may have committed some technical violation or been found with only a user’s amount of drugs. Some courts have interpreted the laws so broadly that even possessing a gun in the same house or car as a crime is called “use in a crime,” even if the gun is never brandished, referred to, or in plain English “used.”

    Its hard on the contractors, I know, but I’m almost glad they’re being prosecuted. There should be one rule of law, the same for regular citizens and for law enforcement, beaurocrats and government contractors. And if the law is unjust, then change it for all of us, not just government employees. Otherwise, screw ’em.

    Saladman (ebda1b)

  9. “There should be one rule of law, the same for regular citizens and for law enforcement, beaurocrats and government contractors.”

    Saladman – Can you walk around the streets in the U.S. with a loaded machine gun most places? Do you need to? Why don’t you think about the answers to those questions for a bit?

    daleyrocks (5d22c0)

  10. Will the ACLU and the other groups who so vehemently protested Bush’s ‘creative’ use and interpretation of the law in fighting terrorists now step up to complain about the Justice Department using and interpreting a law that was never intended to be used in this way?

    No, I’m not holding my breath either…

    steve sturm (3b7833)

  11. Daleyrocks – While I think about that change of subject, can you answer my central point about DRJ acting surprised and dismayed over government contractors caught by a “guns in the use of a crime” law when those laws have long been used against regular citizens in the exact same manner? And if the zombies rise or the Russkies ever parachute in Red Dawn style and I do need a loaded machine gun, would that get me out from under the law also, or is your real distinction based on government employment?

    Saladman (ebda1b)

  12. I think daleyrocks was pointing at “(legal)machine guns needed in the normal course of the (legal) business day”
    Opposed to “drug dealers conducting illegal business with illegal weapons”

    SteveG (a87dae)

  13. A distinction that Saladman still does not get evidently.

    SPQR (26be8b)

  14. Saladman,

    I’m glad you want the same rules to apply to everyone but it seems to me one point of the law is to assess greater sanctions against persons who use illegal weapons to commit or in furtherance of a crime. However, the Blackwater guards were authorized to use these weapons so I don’t see the fairness in using the law to enhance the penalty after-the-fact.

    DRJ (a50047)

  15. I read the 2nd Amendment again and I don’t get the distinction either.

    Should I just understand that surely the Fathers didn’t foresee guns that could hold more than one bullet at a time and thus the 2nd Amendment only applies to muzzleloading rifles unless the government is lenient enough to allow for somewhat more modern hunting weapons?

    Jaybird (f420c4)

  16. imdw,

    I understand the law is not limited to drug cases but the title shows it was designed to deal with drug cases. It’s not unusual to see laws interpreted more expansively over time — RICO comes to mind — and I’m not saying this is improper. But I think it is risky to expand the original meaning of legislation because it can adversely impact public confidence in the legislative and legal process.

    DRJ (a50047)

  17. Jaybird, only if you’re a leftard. The Founders clearly intended citizens to have access to at least whatever personal weapons an infantry soldier in the government army has, for the express purpose of creating a counterweight to a government grown tyrannical.

    What I doubt they foresaw was an ideology that considers killing 25 million Americans whose political philosophy differs from yours an acceptable solution. They would have hung William Ayers from a tall tree.

    SDN (a288c7)

  18. If they can be prosecuted for this, doesn’t that mean we could prosecute the surviving jihadi from Mumbai with the same law? Could Pakistan cite it as a precedent for prosecuting Indian security forces for shooting Pakistani citizens?

    In any case, say farewell to private security contractors working for the US government anywhere, anytime!

    Rob Crawford (b5d1c2)

  19. In any case, say farewell to private security contractors working for the US government anywhere, anytime!

    Comment by Rob Crawford

    Yes, they will have plenty of jobs with people who are realistic about security. The US Government will be the loser but that’s nothing new.

    Mike K (2cf494)

  20. Like DRJ said, the other alternative is to have Iraq try them. Suppose we chose not to prosecute? What would it do to our relationship with the Iraqi government if we then refused to extradite them for Iraq to prosecute?

    It’s a mess for lots of reasons. That these “contractors” were not soldiers and do not have the protection of the UCMJ but are instead at the mercy of some peckerwood political appointee is probably the chief one.

    nk (5fa892)

  21. Saladman @11 – There was no change of subject. Do U.S. laws apply to overseas war zones? Do contractors specifically hired to provide security for U.S. Government personnel and authorized to use machine guns in the performance of their duties by contracts executed by the same government which is prosecuting them deserve to have these extra penalties added on to any potential sentences by virtue of where the “crime” took place? That sounds sort of like double jepoardy to me.

    daleyrocks (5d22c0)

  22. “It’s not unusual to see laws interpreted more expansively over time — RICO comes to mind — and I’m not saying this is improper.”

    It would help if we had the text of the law. But as it is, the description makes me think its pretty clearly not question of the law getting more expansive over time. It simply is not limited to drug cases. That would mean this isn’t some twisted interpretation, its actually the easiest one.

    imdw (603c39)

  23. It’s called the Anti-Drug Abuse Act of 1988 so that gives us a general idea of what the authors thought its purpose was.

    DRJ (a50047)

  24. Nevertheless, imdw, I agree the statute is not facially limited to drug crimes. This Supreme Court case discusses the evolution of the law (at page 9) and you can read WLS’s posts on 924(c) in the Ramos-Compean case. Note that WLS disagreed with me on this point in the Ramos-Compean case, and I assume he will agree with you regarding the use of this statute in this case.

    DRJ (a50047)

  25. Are we really arguing about the difference between what a law is *NAMED* and what it actually *DOES*?

    Why, would there be anyone who would oppose PATRIOT, then? Only people who weren’t PATRIOTs, I guess.

    Jaybird (f420c4)

  26. I agree that prosecuting them for weapons use, when they were authorized to carry the weapons is overreaching.

    But, from what I heard from one of the investigators in Baghdad last year, someone should be prosecuted. Nisoor Square was a massacre caused by undisciplined operators firing indiscriminately. Innocent civilian victims were shot in the back a block away from the square while they fled.

    Time and again, Blackwater and some other PSCs have caused hate and discontent in Iraq which made problems for soldiers and the mission in general. Their TTP seems to be “It’s OK if we waste a thousand Iraqi civilians at the sign of any trouble, as long as we get through OK.” I blame the State Department for allowing this to happen, too.

    iraq participant (ce25f9)

  27. That these “contractors” were not soldiers and do not have the protection of the UCMJ but are instead at the mercy of some peckerwood political appointee is probably the chief one.

    Yet another reason to oppose the use of private contractors doing jobs the military could do just as well: they introduce all sorts of touchy legal issues not present with the military.

    aphrael (9e8ccd)

  28. Ramos and Compean confessed in writing (Ramos tore his up Compean kept his) that they were trying to kill an obviously unarmed man. It was the very fact that they had been law enforcement officers that the charge of attempted murder (20 years is it?) was dropped and they were convicted on every other count.

    The prosecutors in the case of Black water are not applying the law correctly

    Sutton did.

    EricPWJohnson (d66a90)

  29. Bush should pardon all Blackwater employees for everything.

    Daryl Herbert (b65640)

  30. As long as the Congress refuses to raise and support an armed force sufficient to the international committments of the United States, there will be a need for private contractors. It doesn’t matter if they are security, or mess-hall personnel, or clerks.
    This situation lays on the desk of Congress for trying to do things on-the-cheap, so that they would have additional funds to earmark for the benefit of their political supporters back home.

    Isn’t it funny that they can’t find the money for additional uniformed personnel, but they can always find the funding for contractors, consultants, and study grants?

    Another Drew (86f19b)

  31. SteveG, SPQR – If the blackwater employees in question were only legalling carrying machines gun in the normal course of their legal work day – they’re golden. The law only triggers if there’s some other crime of violence they committed. In which case, we return to my initial point.

    In principle, I think its a poor law to begin with, from a class of poor laws, and I think if someone has committed a crime they should be prosecuted and sentenced only on the severity of the base crime, not have a stiffer sentence thrown at them if they, for instance, commit assault with a firearm compared to assault with a knife. What I object to is some animals being more equal than others. And, again, such laws have already been applied against people who otherwise lawfully possessed a gun and happened to commit some other crime, major or minor, even without literally using it in furtherance of the crime.

    Daleyrocks @ 21 –
    Do U.S. laws apply to overseas war zones?

    Well, apparently, yes. And once they do apply, its no more or less double jepoardy than it was every time it was applied to a regular citizen.

    Actually, I agree that applying US criminal law to contractors in overseas war zones is both bizarre and suboptimal. My understanding of how this came about, though, is that it was first determined that private contractors weren’t covered by the UCMJ, then that they were not covered by Iraqi jurisdiction. And, unless American contractors abroad have de facto immunity from any criminal prosecution for any action whatsoever, they have to be covered by something. I’d have chosen UCMJ myself; obviously I wasn’t consulted or I wouldn’t be posting here.

    Saladman (ebda1b)

  32. DRJ — I must respectfully quibble with your point that because this particular piece of legislation was titled “Anti-Drug Abuse Act of 1988″, using the statute in this fashion is somehow a distortion of what the authors of the legislation intended.

    Titles such as this are often attached to omnibus criminal legislation packages that contain a variety of statutory modifications or omissions. I haven’t attempted to look into the contents of this particular bill, but below is the address to the link to Pres. Reagan’s public statement upon signing the bill.

    http://www.reagan.utexas.edu/archives/speeches/1988/111888c.htm

    His statement includes the following comments on the legislation:

    Fortunately, the Department of Transportation has been able to proceed with proposals for random drug testing where drug abuse endangers the public safety. While the language that was dropped would have provided effective methods to enhance drug enforcement, the final product nevertheless strikes a balance between tough law enforcement and protection of victims’ rights with the constitutional guarantees of the rights of criminals.

    Also included in the bill are harsh new laws to deter the greedy and heartless who sell or distribute obscene material or child pornography. With fines up to $100,000 and prison terms of 20 years, we hope to put these people out of business for good.

    In similar fashion, the PATRIOT Act passed after 9/11 included dozens of DOJ “wish list” provisions that had been bouncing around various committees of Congress for two decades. Not all of them had to do with terrorism.

    And, how could you ever simply characterize the most ridiculously named piece of federal criminal legislation ever — the Anti-Terrorism and Effective Death Penalty Act of 1996, which at its core was mostly about reform of the federal habeas system?

    WLS Shipwrecked (c1b09d)

  33. Well, this should be pretty obvious.

    It’s another political show trial — in this case, an attempt by the prosecutors in question to “show” the incoming Administration and Justice Secretary that “we’re worth keeping because we can bend the laws on guns, like you guys want to.”

    Welcome to the Janet Reno Show, Act II, Scene I. Starring Barack Obama as Janet Reno and Eric Holder as Zip Connolly, “G-Man Gone Wild.”

    Kevin R.C. O'Brien (88bf29)

  34. Saladman: “I’d have chosen UCMJ myself”

    This was tried in Vietnam and the case law went against it. ISTR there are two cites, one is United States v. Averette, 19 CMA 363, 41 CMR 363 (1970). (This is a Court of Military Appeals case — IANAL so forgive if I bungled the citation). It involved a civilian worker who murdered a host nation civilian, and was tried at court martial and convicted under UCMJ. The appeal hinged on the language, “in time of war,” and ruled that undeclared wars don’t count.

    In 2007, Congress slipped UCMJ jurisdiction into legislation funding the military, but they couldn’t make it retroactive (they tried, some staff lawyer who, unlike them, had read the constitution once apparently stopped them).

    The authority to try civilians accompanying the troops had always existed under the Articles of War and Manual for Courts-Martial (which preceded the 1950 UCMJ). But the 1950 rewrite — and a 1970 court looking for any flimsy excuse to turn a murderer loose, most likely — erased it.

    Military lawyers wanted this authority back. See here:
    http://www.strategicstudiesinstitute.army.mil/pdffiles/ksil374.pdf

    But google around a bit and you’ll see the extreme hostility to the military in general and to civilian contractors from lawyers and in particular from the legal academy. Not much chance that these guys can get a fair trial in this country — they’d get a better shake from 12 random Iraqis, not to mention Iraqi judges and lawyers.

    Kevin R.C. O'Brien (88bf29)

  35. “It’s called the Anti-Drug Abuse Act of 1988 so that gives us a general idea of what the authors thought its purpose was.”

    That’s the title. The violence against women act, for example, contains gun restrictions not just for crimes against women. It looks like the plain language of this provision is not to limit it to drugs, though you could try to stretch it with your attempt at looking at purpose with the title. But it seems like the text is plenty clear already.

    imdw (23c2b4)

  36. So now the Leftists are textualist and intentionalists?

    JD (bda7e2)

  37. So now the Leftists are textualist and intentionalists?

    Only when it means they can punish “undisciplined operators” for political gain.

    (Because, hey, if they can’t get active-duty soldiers sent to prison for going to Iraq, then they’ll go for the retired ones.)

    Rob Crawford (04f50f)

  38. The Justice Department is trying to get those not already charged thinking about ple bargaining the moment they are charged.

    davod (bce08f)

  39. Charging them with the drug act count is about as “unusual” as the sun coming up in the morning—it (18 USC 924(c)) is used thousands of times every year (see http://wings.buffalo.edu/law/bclc/bclrarticles/6/2/bak.pdf). The mandatory sentence is a way to scare accused folks into making a plea.

    Drew (4fdd71)

  40. Drew — Title 18 is the general criminal code of the United States. The statute you cite applies both to crimes of violence and drug trafficking crimes — meaning crimes involving the manufacture, distribution, or possesion with the intent to distribute.

    Drug crimes are actually set forth in Title 21 of the United States Code.

    WLS (26b1e5)

  41. It appears that cute titles which will attract headlines to make themselves appear as though the critters are doing something about crime making themselves look better to the voters, instead of calling them what they really are.

    Another law so we can infringe upon YOU the Citizens, rights and create “gotcha” holes for the govt to use at will to insure convictions and the filling of prisons.

    TC (0b9ca4)

  42. Saladman

    No one consulted me before I posted either… which in my case comes at no suprise.

    My biggest concerns are the Iraqi people who are caught in the crossfire and the contractors who are also caught there.
    Neither side is well served here

    SteveG (a87dae)

  43. WLS and imdw,

    I don’t think it’s quibbling to discuss this but I want to point out that I have not asserted we should interpret this statute by looking solely at its title. (To the extent it seems like my comment 23 says that, please read it in conjunction with comment 24.) My point was that when we expand the scope of legislation beyond the plain meaning and general public understanding of the laws when they were passed, we risk damaging citizens’ confidence in how the legal process works. Courts routinely expand the scope of existing laws and while I don’t think it’s wrong or illegal to do this, it’s one of the reasons more and more people are skeptical about judicial decisions.

    DRJ (a50047)

  44. Fox News reports that five employees of Blackwater have been indicted for the shooting in Iraq, and that a sixth is in plea-bargaining.
    No report on what the charges actually are.

    Another Drew (46c816)

  45. Sounds like they made a deal for 1 and presumably he will testify against the other 5.

    DRJ (a50047)

  46. Why exactly is this considered a drug law? Honestly, these are men put their lives on the line just like our men in uniform every day defending our rights. Who do the illuminati leftists here think they are manipulating laws that weren’t meant to even be used this way to try and make them out to be bad guys because they get paid a bit more than your average private.

    Rj (b3eac0)

  47. Hate crime??? Get a life comment #4, or an education so you would know what “hate” crimes actually are, moron.

    commet 4, you are an idoit (7dd3d7)

  48. I thought #4 was being satirical/sarcastic. And don’t know what you mean by word idoit (sic)?

    In any case we are to believe Blackwater employees/mercenaries doing a job for us overseas is very bad. On the other hand a domestic army (that rivals the defense dept. in size and budget) of Obama’s proposed new brown shirted gestapo will be good for Amerikkka?

    madmax333 (0c6cfc)


Powered by WordPress.

Page loaded in: 0.5782 secs.