Prairie Voice

Open Letter To Congress
January 12, 2010

Open Letter to U.S. Congress
Investigate the Mishandling of Blackwater Case
Enact the Stop Outsourcing Security Act.

On December 31, 2009, United States District Judge Ricardo Urbina
dismissed all criminal charges against five Blackwater security guards
accused of killing 17 unarmed Iraqi civilians in Nisour Square of
Baghdad on September 16th 2007. The contractors had been indicted for 14
counts of manslaughter, 20 counts of attempting to commit manslaughter
and one count of weapons violation. In his decision the Judge did not
rule on the substance of the charges against the security guards, but on
the prosecutorial misconduct of the U.S. attorney Kenneth Kohl and the
trial team.

Judge Urbina’s 90-page opinion does not dispute the investigations by
the Iraqi police, the U.S. Army, and the F.B.I. The Iraqi and U.S.
investigators found that the guards of the Raven 23 convoy had
indiscriminately fired on unarmed civilians in an unprovoked and
unjustified assault in the crowded Nisour Square of Baghdad on September
16, 2007. Witnesses and reports stated some of the victims were shot in
the back trying to flee the scene. A nine year old boy riding in the
back seat of his father’s car was shot in the head and died. None of the
investigators were able to find any physical evidence to support the
guards’ contentions that they had been fired upon. The F.B.I. stated in
their report that the Blackwater guards recklessly violated American
rules for the use of lethal force. The U.S. military investigators went
further saying that all the deaths were unjustified and potentially
criminal. Iraqi authorities called the shootings “deliberate murder.”

Judge Urbina labeled the misconduct of the trial team, headed by
Assistant U.S. attorney Kenneth Kohl, as a “reckless violation of the
defendants’ constitutional rights.” This violation occurred when U.S.
Attorney Kohl and Department of Justice trial lawyer Stephen Ponticello
built their case around the written statements made by the contractors
immediately following the shooting. The Judge stated, “In short, the
government has utterly failed to prove that it made no impermissible use
of defendants’ statements or that such use was harmless beyond
reasonable doubt. Accordingly, the court must dismiss the indictment
against all the defendants.”

However, in the background section of the opinion, it becomes obvious
that this violation could have been avoided. Judge Urbina describes in
detail the many instances where Kohl and the trial team ignored the
directives and warnings of Raymond Hulser, a Deputy Chief in the Public
Integrity Section of the Criminal Division, who was assigned as the
“taint attorney.” His responsibility was to prevent prosecutors and
investigators handling the investigation from using statements that
could contaminate the case causing it to be dismissed.

On page 82 of the written opinion, Judge Urbina points out that the
government’s attempts to characterize Kohl’s failure to heed the
warnings and directives of Hulser as a mere “miscommunication” are
“simply implausible.”

Judge Urbina writes, “These inconsistent, extraordinary explanations
(given in interviews by Kenneth Kohl) smack of post hoc rationalization
and are simply implausible.” He continued, “The only conclusion the
court can draw from this evidence is that Kohl and the rest of the trial
team purposefully flouted the advice of the taint team when obtaining
the substance of the defendants’ compelled statements, and in so doing,
knowingly endangered the viability of the prosecution.”

Rep. Jan Schkowsky (D – IL) said in the Los Angeles Times, “We’re going
to have to understand how this happened.” The Iraqi families and the
U.S. citizens that are funding companies like Blackwater, as well as
paying for the investigations, have a right to know the motivation
behind such reckless misconduct by a seasoned U.S. Attorney.

An adviser to the Iraqi council of ministers said, “This (the dismissal
of the case) is very bad for the overall look of the United States
outside its borders. It’s very important for the Americans to realize
that this will work against their interests in Iraq and other places.”

Given the prosecutorial misconduct of this case, the tragedy of the
shooting incident and the larger trend of private security contractors,
we call upon the U.S. Congress to take the following actions:

1. Conduct a Congressional investigation into the prosecutorial
misconduct of U.S. Attorney Kenneth Kohl and the trial team. Judge
Urbina’s decision describes in detail the many times the investigators
and prosecutors seemed determined to sabotage the case from the
beginning. It is also known that senior officials of the Justice
Department did not want this case to go to trial. According to Scott
Horton, international law expert and contributor to Harper’s, reported
one Congressman who was present at early briefings of the case held on
Capitol Hill said the Justice Department prosecutors assigned to the
case were behaving like defense lawyers building a case to defend the
Blackwater employees, not prosecute them. A Congressional investigation
is needed to verify and explain the Justice Department’s actions and
motivations in this case.

2. Our military personnel are bestowed with a special responsibility to
use lethal force in the course of their work and are held to a higher
standard of conduct as a result, the Uniform Code of Military Justice
(UCMJ). The current trend to outsource military operations to private
contractors eliminates that higher standard, resolving it instead
through corporate contract provisions and civilian law which is far from
the higher standard of conduct implied by the authority to use lethal
force. The indictments in this case specifically stated that Blackwater
Worldwide, the primary contractor in the matter, had no responsibility
for the events, despite the fact that the guards were trained by
Blackwater and working according to the “culture” of the firm.
Blackwater (Xe Services) must be held accountable for their involvement
in this event and other events, and the U.S. Congress should grapple
with the shortcoming of current contract law when applied to actors in
combat zones using lethal force who would otherwise be subject to the UCMJ.

3. The U.S. Congress should cancel and cut off all funding of contracts
with Blackwater (Xe Services) and with all of their affiliates. This
should include all contracts now in effect under the Department of
Defense, the Department of State, Homeland Security, The Drug
Enforcement Agency, and the CIA. In addition to the above incident,
Blackwater and its owner Erik Prince are named in two other Grand Jury
investigations involving the company’s possible smuggling of weapons
into Iraq and tax evasion. The company may face charges for obstruction
of justice related to the shooting incident in Nisour Square. In August
of 2008 Rep. Henry Waxman, then chair of the House Oversight and
Government reform Committee, called on then candidate Obama to cancel
Blackwater’s contracts if elected President. Candidate Hillary Clinton
also said that Blackwater contracts should be canceled. We agree with
Rep. Waxman when he said, “I don’t see any reason to have a contract
with Blackwater. They haven’t lived up to their contract and we
shouldn’t be having these private military contracts. We should use our
own military.”

4. This decision also puts the U.S. in breach of its treaty obligations
to prosecute this case, which was an international law obligation. Now
if the U.S. cannot, for the technical reasons set forth in the ruling,
prosecute the case, the U.S. is required to waive the immunity and
surrender these individuals to the Iraqi authorities for prosecution.
Congress should ensure that our Government satisfies all of our
international obligations as they pertain to this case.

5. Reintroduce and swiftly enact the “Stop Outsourcing Security Act”
(known as House Resolution 4102 in the 110th Congress) which cites that
a) the United States is increasingly relying on private security
contractors, b) one quarter of these contractors are third-party
nationals, c) these contractors operate at cross-purposes with our
larger mission and undermine the mission, jeopardizing the safety of
American troops, d) events such as the Nisour Square massacre have
negatively affected the relationship of our country with other countries
in those areas, e) security contracts suffer from inadequate oversight,
f) Congress does not even have access to security contracts, and g) the
use of private security contractors for mission critical functions
should be phased out.

The bill required that a) personnel at any United States diplomatic or
consular mission in Iraq are provided security services only by Federal
Government personnel, b) the military will transition away from the use
of private contractors for mission critical or emergency essential
functions in all conflict zones in which Congress has authorized the use
of force, c) contracts with security contractors shall be open to
inspection by Congress, d) no contracts shall be renewed during the
transition period unless those companies have a clean record, and e)
that the defense department fully document the number and disposition of
all security contractors.

When reintroducing this bill, Congress should insure the scope is
adequately broad to include recent revelations of “black-ops” CIA
activities, and to update it to include regions and operations of
relevance today, including domestic and foreign training operations,
which is a core-competency of our military and must not be relegated to
for-profit firms.

The safety of our soldiers and our citizens, as well as citizens in Iraq
and Afghanistan, can no longer be put into risk by the careless actions
of hired military and security companies like Blackwater. Legal
loopholes that provide immunity for all contractors, regardless of how
murderous their actions may be, continue the pattern of inadequate
accountability. We ask you how much longer will you allow those whom we
fund to get away with murder in our name?

BY THE UNDERSIGNED:

No Private Armies: Dan Kenney & Mary Shesgreen, co-coordinators of
NoPrivateArmies.org Chicago Area (IL)

Voices For Creative Non-Violence: Kathy Kelly http://vcnv.org

Stop Blackwater: Raymond Lutz, coordinator, StopBlackwater.net (San
Diego, CA)

CitizensOversight.org (San Diego, CA)

Blackwater Watch: Christian Stalberg, XeWatch.info (NC)

Peace Resource Center: Carol Jahnkow, director, prcsd.org (San Diego, CA)

Citizens Against Private Armies (Riverside County, CA)

NC Stop Torture Now

ADD YOUR NAME OF ENDORSEMENT BY VISITING http://www.StopBlackwater.net

–

New Year, Same Old Story: Blackwater Still Gets Away with Murder

                                                                                                  By Dan Kenney

                                                                                            No Private Armies

                                                                                                      1/1/10

This may be the first day of a new year, and the start of a new decade, but it is also a day that marks the continuation of an old sad story of injustice. On New Year’s Eve Judge Ricardo Urbina dismissed all charges against five Blackwater contractors that had been indicted for 14 counts of manslaughter, 20 of attempting to commit manslaughter and one weapons violation. This New Year’s Eve gift to Blackwater was bad news for the Iraqi families expecting the American judicial system to deliver justice for the deaths and injuries of their loved ones.

            The old story is that, once again, by using the system to their benefit and with the  possible deliberate sabotage on the part of the U.S. Attorney assigned to the case, the contractors accused of shooting innocent unarmed Iraqi citizens may never be brought to court.

Judge Urbina’s written 90-page opinion does not dispute the investigations by the Iraqi police, the U.S. Army, and the F.B.I. The Iraqi and U.S. investigators found that the guards of the Raven 23 convoy had indiscriminately fired on unarmed civilians in an unprovoked and unjustified assault in the crowded Nisoor Square of Baghdad on September 16, 2007. Witnesses and reports stated some of the victims were shot in the back trying to flee the scene. A nine year old boy riding in the back seat of his father’s car was shot in the head and died. None of the investigators were able to find any physical evidence to support the guards’ contentions that they had been fired upon. The F.B.I. stated in their report that the Blackwater guards recklessly violated American rules for the use of lethal force. The U.S. military investigators went further saying that all the deaths were unjustified and potentially criminal. Iraqi authorities called the shootings “deliberate murder.”

Judge Urbina labeled the misconduct of the trial team, headed by Assistant U.S. attorney Kenneth Kohl, as a “reckless violation of the defendants’ constitutional rights.”  This violation occurred when U.S. Attorney Kohl and Department of Justice trial lawyer Stephen Ponticello built their case around the written statements made by the contractors immediately following the shooting. The Judge stated, “In short, the government has utterly failed to prove that it made no impermissible use of defendants’ statements or that such use was harmless beyond reasonable doubt. Accordingly, the court must dismiss the indictment against all the defendants.”

The Rest of the Story

However in the background section of the opinion it becomes obvious that this violation could have been avoided. Judge Urbina describes in detail the many instances where Kohl and the trial team ignored the directives and warnings of Raymond Hulser, a Deputy Chief in the Public Integrity Section of the Criminal Division, who was assigned as the “taint attorney.” His responsibility was to prevent prosecutors and investigators handling the investigation from using statements that could contaminate the case causing  it to be dismissed.

On page 82 of the written opinion, Judge Urbina points out that the government’s attempts to characterize Kohl’s failure to heed the warnings and directives of Hulser as a mere “miscommunication” are “simply implausible.”

Judge Urbina writes, “These inconsistent, extraordinary explanations (given in interviews by Kenneth Kohl) smack of post hoc rationalization and are simply implausible.”

 “The only conclusion,” the Judge continued, “the court can draw from this evidence is that Kohl and the rest of the trial team purposefully flouted the advice of the taint team when obtaining the substance of the defendants’ compelled statements, and in so doing, knowingly endangered the viability of the prosecution,”

As Rep Jan Schkowsky of Illinois said in the LA Times, “We’re going to have to understand how this happened.” The Iraqi families and the U.S. citizens that are funding companies like Blackwater, as well as paying for the investigations, have a right to know the motivation behind such reckless misconduct by a seasoned U.S. Attorney. (It is important to note that Kenneth Kohl was also the U.S. attorney assigned to the anthrax case. He was appointed by the Bush administration.)

The Loophole

          You may recall Order 17, put in place by Paul Bremmer in 2003, which provided immunity for contractors operating in Iraq. The order was struck down in the latest U.S. Security agreement with Iraq. However, the U.S. State department replaced it with the “Hunter Memorandum.” Regional Security Officer Mark Hunter authored a memorandum titled “WPPS (Worldwide Personnel Protective Services, a company of Blackwater) On-Duty Discharge of Firearms Reporting Procedures” (“the Hunter Memorandum.”) The Hunter Memorandum required all Blackwater personnel involved in a shooting incident to report immediately for debriefing by the State

Department. After the debriefing, any employee who discharged his weapon was to be given a sworn statement form attached to the memorandum. The statement that the five contractors signed included this line, “I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information.” This statement is required and an employee may be terminated for failure to sign it. This is commonly referred to as a “Garrity warning” or “Kalkines warning.” The Hunter memorandum and the attached Sworn Statement form were standard procedure to be followed after any shooting incident. So this is the loophole which allowed any guard involved in a shooting to avoid accountability for his actions.

            This loophole is still in place and you can be sure that it can function in Afghanistan as well.

What Next?

It was reported that the five contractors were “overjoyed” and that a “great burden had been lifted from their shoulders.” However it was a startling blow for the Iraqi government and citizens. As one Iraqi lawmaker said in a speech to Iraq’s parliament, “Ask the Iraqi courts to release all the (Iraqi) defendants…sentenced to death for killing Americans in Iraq, as an act of reciprocity with the U.S. judicial system.”  

            An adviser to the Iraqi council of ministers said, “This is very bad for the overall look of the United States outside its borders. It’s very important for the Americans to realize that this will work against their interests in Iraq and other places.”

            Although Judge Urbina’s decision would make it difficult to reinstate the original charges the guards could still be prosecuted for willfully providing false information in their statements. There is also the possibility that the government will bring obstruction of justice charges against Blackwater managers.

 The Center for Constitutional Rights has a civil case in the courts against Blackwater. The Iraqi government said that they will support this lawsuit as well as ask the U.S. Justice Department to review the criminal case.

This decision also puts the U.S. in breach of its treaty obligations to prosecute this case, which was an international law obligation. Now if the U.S. cannot, for the technical reasons set forth in the ruling, prosecute the case, the U.S. is required to waive the immunity and surrender these individuals to the Iraqi authorities for prosecution.

 Finally, a Congressional investigation should be conducted into the prosecutorial misconduct that tainted this case. Judge Urbina’s decision describes in detail how the trial team seemed determined to sabotage the case from the beginning. It is also known that senior officials of the Justice Department did not want this case to go to trial. One Congressman, who was present at early briefings of the case held on Capitol Hill, said that the Justice Department prosecutors assigned to the case were behaving like defense lawyers building a case to defend the Blackwater employees, not prosecute them. An investigation needs to find out why this occurred.

And the Story Goes On

So the old story goes on. The safety of our soldiers and our citizens put at risk by the careless actions of hired private military and security contractors. Legal loopholes that provide immunity for all contractors, regardless of how murderous their actions may be, continue the pattern of unaccountability. We must ask ourselves and those who represent us, how much longer will we allow those whom we fund to get away with murder in our name. 

By Dan Kenney
No Private Armies
December 19, 2009

Recently I gave a talk to a group of democrats about the danger of outsourcing our security to private military and security companies like Blackwater, Triple Canopy, and others. Part of my talk includes looking at the profits made by pentagon contractors such as Raytheon, Boeing, KBR, etc.. During the questions and comments portion the chair of the committee said, “By your definition of military contractor I would be one, I have worked for Raytheon for over 35 years.”

He said that I should not include Raytheon in with Blackwater. “Raytheon is a good company that provides what our soldiers need, they are nothing like Blackwater.” In a sense he was saying that Raytheon was a “good” military contractor and that Blackwater was a bad one. I have given this talk many times and this is the first time someone challenged me with the possibility that there are “good” war profiteers and there are bad.
The next person to speak said that she agreed with the chair and she felt it was not a good idea to take on these companies right now with the economy the way it is, because “they provide a lot of jobs.” She implied these multi-billion dollar companies that make their money from war are “good” companies to have because of the employment they provide. .

On my drive home I puzzled over what they had said. Could it be that I should present the information about pentagon contractors like Boeing and Raytheon in a separate program? So I decided I needed to take a closer look at Raytheon.
I learned that Raytheon, which means “light from the gods,” is the fifth largest defense contractor in the world and the fourth largest in the United States, with annual revenues of over $20 billion. More than 90 percent of Raytheon’s revenues were obtained from defense contracts. Many of their contracts with the U.S. defense department are “no bid contracts.”

Raytheon is the maker of “Bunker Buster” bombs, Tomahawk and Patriot missiles. Raytheon manufactured the missile that killed 62 civilians, most of them women and children, in a Baghdad market in 2003. Hundreds of Raytheon million dollar cruise missiles have been fired on Afghanistan killing more untold hundreds of civilians. The Tomahawk missiles were used during “shock and awe” in 2003 killing hundreds in Iraq.
The missile that killed 62 in a Baghdad market on a Friday night in 2003 had been manufactured in Texas. Apparently it malfunctioned and did not hit its intended target.

The company refused to take responsibility for the malfunction.
In 2009 Raytheon came out with the “Silent Guardian” or Active Denial System (ADS). It is designed to protect military personnel against small-arms fire without the use of lethal force. Transmitted at the speed of light over a 700 yard distance, the “Pain-Ray” as it is also known, is a millimeter-wave beam that penetrates 1/64th of an inch beneath the skin, causing the water molecules to bubble, producing an intense burning sensation, compared to that of a red hot iron. It has been referred to as the “Holy Grail of crowd control.”
Like Blackwater Raytheon has also had its share of rule violations and illegal behavior. Raytheon has paid millions of dollars in fines for illegal activities. Some of the fines were paid in settlements for several cases of overpricing and inflated costs. Other fines followed guilty pleas for illegally obtaining secret Air Force budget and planning documents and for submitting false claims for work done on missiles.

Raytheon is also fighting a civil action suit that was filed by over 1,000 property owners in St. Petersburg, Fla. The resident accuse Waltham, Mass. based Raytheon of polluting the soil and groundwater around its St. Petersburg, Fla.
So it appears that there are many similarities between Blackwater and Raytheon after all.

What about the jobs? Raytheon does employ over 80,000 workers worldwide. Boeing has over 155,000 and GE over 320,000. CACI employs over 12,000, Dyncorp another 15,000.and Triple Canopy has over 2,000 in Iraq alone. Blackwater’s information about how many they employ is difficult to find, however Gary Jackson former president of Blackwater said in an interview back in 2007 that they had a list of over 25,000 contractors. There is no question that these pentagon contractor companies provide employment, after-all this is what the “military industrial complex” is all about. The issue of employment, the livelihood of millions depending upon the creation of weapons, distributing weapons, on and on; this is the heart of the problem with creating an economy based on war. However we need to face the fact that an economy that is based on weapons and war is not sustainable; in fact it may lead to our own destruction.

One must ask where is the line to be drawn separating the one who drops the bomb from the one who helps create or manufacture the bomb? Is one less responsible for the death of those innocent individuals killed? Is one who works for a company that manufactures the missiles that kill the children less responsible for their deaths? Are those who have their tax dollars pay for the missiles any less responsible for the killings by the missiles? If it were not for our tax dollars how would our government pay the war profiteers? And if my tax dollars are among those used to pay for the missile am I not also responsible in some way? Are we not all responsible in some way for what is done in our names?
It is these questions that lead to an impasse as we struggle for a world without war profiteers: a world of peace instead of one of war.

I have answered one question for myself however, and that is I will continue to talk about Raytheon and Boeing, and the other companies who profit from war in the same presentation as Blackwater and other private military security companies. I have yet to find a “good” war profiteer.