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

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