Less lawyers, more auditors: The lessons of Nisoor Square
Be warned, I go long today.
As I write a weekly column on private military and security contractors for UPI and have written a just published book on private security contractors in Iraq, it is an easy guess what I am blogging about today.
That’s right, yesterday’s 35-count indictment against the six Blackwater contractors accused of voluntary manslaughter, attempt to commit manslaughter and weapons violations for their alleged roles in the September 16 2007 shooting at Nisoor Square in Baghdad, Iraq.
Given the key dependence on private contractors by the U.S. Defense and State Departments, as well as the intelligence community and numerous other agencies the implications of the indictment and eventual trial verdict will have an impact that go far beyond Iraq. Let’s face facts, contractors are the U.S. government’s American Express card; nowadays Uncle Sam dares not leave home without them when it undertakes an overseas operation, whether it be war, humanitarian relief or something in between.
Based on the indictment it appears that at least some of the early press coverage of the event at Nissor Square was correct.
Blackwater claimed the convoy was attacked by armed insurgents but Iraqi officials disagreed. Iraq’s Ministry of Interior said that Blackwater contractors fired an unprovoked barrage.
U.S. military reports from the scene indicated that Blackwater guards opened fire without provocation and used excessive force against Iraqi civilians.
It may very well be the case, as a New York Times article reported that the cascade of events began when a single bullet apparently fired by a Blackwater guard killed an Iraqi man whose weight probably remained on the accelerator and propelled the car forward. The car continued to roll toward the convoy, which responded with an intense barrage of gunfire in several directions, striking Iraqis who were desperately trying to flee.
Interestingly, in late 2007 it was reported that American investigators were told that during the shootings at least one Blackwater guard continued firing on civilians while colleagues urgently called for a cease-fire. At least one guard apparently also drew a weapon on a fellow guard who did not stop shooting. But no mention of any of this was made at yesterday’s Department of Justice/FBI news conference.
Back then FBI agents reportedly found that at least 14 of the shootings were unjustified and violated deadly-force rules in effect for security contractors in Iraq. That seems not to have changed, as yesterday’s indictment listed only 14 counts of voluntary manslaughter.
The spin thus far on the indictment seems to place the blame entirely on the contractors and nobody else, as emphasized in yesterday’s press conference. It bears emphasis that today’s indictment is very narrow in its allegations. Six individual Blackwater guards have been charged with unjustified shootings on September 16, 2007, not the entire Blackwater organization in Baghdad. There were 19 Blackwater guards on the Raven 23 team that day at Nisur Square. Most acted professionally, responsibly and honorably. Indeed, this indictment should not be read as accusation against any of those brave men and women who risk their lives as Blackwater security contractors.
In the end it may very well be they were entirely at fault but it must be noted that for a long time some, including those in the private security industry itself, believe, that the immunity Blackwater received under its State Department contract encouraged it to emphasize its mission—the protection of its clients—to the exclusion of all other considerations: a sort of “shoot first, ask questions later” attitude.
Such an attitude has been criticized even by other parts of the government. Secretary of Defense Robert Gates said in a news conference that the mission of many contractors in Iraq—to protect their U.S. government employers regardless of other consequences—was “at cross-purposes to our larger mission in Iraq. As I see it, right now those missions are in conflict, because in the objective of completing the mission of delivering a principal safely to a destination, just based on everything I’ve read and what our own team has reported, there have been instances where, to put it mildly, the Iraqis have been offended and not treated properly.”
The State Department reportedly overlooked repeated warnings from U.S. diplomats in the field that guards were endangering Iraqi civilians and undermining U.S. efforts to win support from the population.
Previously ABC News obtained internal State Department e-mails showing that top officials were extensively briefed in 2005 about repeated incidents of Blackwater security guards killing innocent civilians, and complained about a lack of a compensation program for civilian victims.
In short, many think Blackwater’s client, the State Department has had a double standard. While publicly it made all the right noises about following the rules on escalation of force and following proper firearms policy in private it told Blackwater just do whatever it takes.
For example, on October 24, 2007, Richard Griffin, the assistant secretary of state for the Bureau of Diplomatic Security, resigned. Just a day earlier, Secretary Rice, accepting the results of a review, ordered a series of measures to boost government oversight of the private guards the department uses to protect its diplomats in Iraq, including more explicit rules on when and how to use deadly force.
That review implicitly rebuked Griffin’s office for insufficient oversight. Yet shortly after his resignation, ABC News reported that two key deputies who worked closely with the security contractors, Kevin Barry and Justine Sincavage, received quiet promotions.
In fairness, the “shoot first” attitude is one that security contractors share with the American military, one that elevates “force protection” to something approaching an absolute. This, critics say, has the effect of valuing the saving of American lives above avoiding risk to innocent Iraqis. However, after some of the most damaging incidents in Iraq, especially the killing by U.S. marines of 24 Iraqi civilians in Haditha in November 2005, the American command ordered new restraints on force escalation that sharply cut incidents in which troops opened fire on civilians.
Admittedly, the problem of overaggression is probably worse among contractors. Since they are not tasked with defeating the insurgency, they do not have to take into account the feelings of the locals, as soldiers are supposed to do. All they have to do is to get their convoys or VIPs safely to their destinations.
So, what next? If the contractors are found guilty it would mean that the Military Extraterritorial Jurisdiction Act, which is the primary law the contractors are being charged under, would now be regarded as something having teeth and would have a far greater deterrent effect than it does currently. Coupled with new procedures put in place in the aftermath of Nisoor Square as well the new Iraq-U.S. Status of Forces Agreement the likelihood of unjustified shooting in Iraq by private contractors during the remainder of the time the U.S. remains in Iraq should decrease substantially.
But the more important lesson is this. The proper utilization of private military and security contractors depends on having a prepared and educated client. If the people, meaning the U.S. government, who hire contractors are not prepared to not only write a detailed contract, but also monitor and audit it, meaning having capable and adequately resourced contracting officers who go out in the field to check up on contractors, then bad things will continue to happen.
The best thing is to prevent bad things from happening in the first place, not to have adequate means to prosecute them after they happen. What that means is less lawyers and more auditors. Up to now the government has been missing in action on that count.
No related posts.
Hey David, great blog and I will link this on my site. Good stuff, and I agree with your final analysis by the way.
To me, there are two things that need to happen. 1. The government needs solid leadership to take on this monumental task of commanding the contracting reform effort. 2. These leaders need to develop a strategy that will not only fix this problem, but actually make the use of contractors, an acceptable and formidable tool of the state.
Our selection of these leaders is crucial. They must know their stuff, have the courage to do what is right, and take care of their people. They must not surround themselves with ‘yes men’ and they must actually listen to others. They should be students of leadership and of their profession, and never use words like expert to describe themselves. They should drive the effort, be the task master, delegate intelligently, be consistent and fair, and ensure their organization is a learning organization.
I think reform can happen, and all it takes is for the government to make it a priority. For me, incidents like this only emphasize the poor strategy and leadership of the US Government and of the US Military. Yes, Blackwater needs to be accountable, and if these guards and/or managers are proven guilty in a court of law, then they should pay. But to me, a put equal blame on the state for allowing such a thing to happen in the first place. We must learn, we must reform, and we must find a better way, or we will continue to have failure.
Comment on December 9, 2008 @ 11:17 am
Yes, David, this blog really cuts to the central issue – contract oversight. The two key aspects of this are:
1. the issue of the resources allocated to contract oversight (are there enough contract supervisors?- are they capable of doing the job? – and are they given enough authority and resources to do it?- and are they located anywhere they can be useful?) ;and
2. the question of what is the contract brief? If the unoffiicial brief has been to shoot first and ask questions later, putting protection of the state officials above anything else, as you suggest (and it certanly looks that way in practice) this appears totally irresponsible in terms of the US’ obligations to comply with the Geneva Conventions and basic Human Rights law, among other things. It is indeed like saying that US lives are more valuable than Iraqi or any other lives, and the implications of this as a foreign relations strategy are truly scary.
DoS has clearly failed in both these areas, (as has DoD on contract supervsion) in the use of contractors like Blackwater If you give this sort of job to contractors, tell them effectively to break the law (or, as Steve Fainaru would argue, follow Big Boys Rules) and then turn the other way by not supervising contracts, this looks like a cynical way to get contractors to do State’s dirty work. If you combine guns and legal impunity with a biref to protect one person/group at all costs, then you inevitably get incidents like Nissour Square.
About the lawyers (yes, OK, I am one) I think they could do with some good lawyers working on the preventive end – writing good contracts that give supervisors enough authority, writing rules on the use of force that actually comply with the relevant international law, ensuring everyone knows beforehand what and which law will apply for contract breaches or criminal offences – and doing some training on what the law of personal self-defence really means.
The question of self-defence seems to be widely misinterpreted in US circles, including in government policy documents, where there is confusion between national self-defence/laws-of-war and personal defence of self or others in the face of an immediate threat to life or limb. For example, whatever the US position on international laws-of- war on this issue (a minority one), personal/civilian self-defence clearly does not include the use of force in pre-emptive strikes.
Which law of self-defence are the indicted Blackwater guards arguing, I wonder? Surely they can’t argue both ways, that on the one hand they are civilians who were defending themselves and their charges in personal self-defence, and on the other hand they are like soldiers on a battlefield whose every move in the heat of battle cannot be examined under normal civilian laws? Perhaps they are/were both of these, in which case this doesn’t look like a job for civilians.
Comment on December 9, 2008 @ 12:49 pm
Good question Mary. I am not a lawyer, but it seems to me that the DoJ Prosecutor is reaching when they have to use manslaughter or an obscure drug law for weapons violations. Manslaughter can be very easy to charge in a war zone. That’s like handing out speeding tickets at the Indy 500, to steal a quote from the movie Apocalypse Now.
The military has been accidently killing civilians since the beginning of this war. Contractors have done the same thing as well. My point is, that this is a war, and all of these incidents are not intentional and an unfortunate reality of operating in a war zone.
And accidents happen both in the defense and offense in these war zones. It is unfortunate, but no one intentionally wants to harm civilians, and everyone over there does what they can to avoid civilian casualties. Contrary to popular belief, security contractors don’t wake up in the morning and ask themselves how many civilians they can kill today. These men have families, the client has families, and the last thing they want is that kind of thing on their conscious.
But it does happen, and it sucks all the way around. It is the emotional and mental sacrifice that some men and women in war have had to pay, ever since the the first time a rock missed an enemy tribal combatant, and killed a child nearby. It doesn’t mean that it isn’t wrong, and that war crimes should not be prosecuted, but this is the reality of war, and this jury will get an earful of this reality.
For these guys, it was both defense of self and defense of nation. Those guards were more connected to the State Dept. than the press gives them credit for. The prosecution is going to try to separate these guards from the client as best they can, and label them as rogue or acting on their own.
My strategy would be simple. These men were performing a service for the client and country, and all of their Standard Operating Procedures, policies, Rules for the Use of Force, training, etc were all mandated and authorized by the State Dept. These men were all given background checks by DoS, and were tasked with protecting the client in a war zone where the enemy wears no uniform. Hell, the enemy wasn’t even representing a country and the enemy takes the form of women, children, old men, etc. The weapons the enemy uses are vehicles with bombs in them, guns, rocket launchers and suicide chest packs. The enemy also films the attacks, and conducts their attacks in crowded areas filled with civilians, all with the hope of blaming any deaths of civilians during the fire fight on military/contractors. It is a common tactic, and certainly a strategy that the insurgency in Iraq uses.
If I was the defense, I would call the entire chain of command in the DOS as witnesses, to include the Sec. of State. Request all of the DoS SOP’s, contract verbiage, work schedule, emails, incident reports, background checks, training records, etc. I would also call on the former passengers that were assigned this protection, and ask them if they were able to perform their vital ‘national security’ jobs because of these services. The connection between the client(passengers to management) and the company (Blackwater and their guards) are very clear, and I think the prosecutor is going to have an uphill battle in trying to separate the two. The connection of these guards to national security are clear as well. And their lives were definitely in danger in a war zone. Defense of self, defense of nation.
The other angle is the collection of evidence. It was pathetic, and the crime scene (if you want to call it that), was completely junked. There are too many holes in this thing.
One thing is clear, that the DoJ definitely wants to take these guys down and make an example out of them. These men are innocent until proven guilty. Until otherwise, they should be treated like heroes and not like some rogue criminal element that the state has no control over or has no connection to. And if the state had a problem with how Blackwater was carrying out the contract, or disagreed with a SOP, then they should have said something or applied some kind of quality control. But as we will see in this trial, DoS has been managing the WPPS program for awhile now and has their hands all over the process.
Comment on December 9, 2008 @ 7:24 pm
Whoa there Matt, treated like heroes? Try reading the factual proffer of Jeremy Ridgeway. They might be a lot of things but heroes? I don’t think so.
Comment on December 10, 2008 @ 7:34 pm
“Interestingly, in late 2007 it was reported that American investigators were told that during the shootings at least one Blackwater guard continued ?ring on civilians while colleagues urgently called for a cease-?re. At least one guard apparently also drew a weapon on a fellow guard who did not stop shooting. But no mention of any of this was made at yesterday?s Department of Justice/FBI news conference”.
Those statements may have been made to the State Department during the cursory, actually slap dash, investigation it made the day of the shootings. Since they were made with the understanding that limited immunity was being offered they can not now be used in the case brought by DOJ. Once given limited immunity for their statements I am sure that Blackwater’s lawyers told them not to make any more statements about the matter, particularly to FBI investigators.
Comment on December 11, 2008 @ 11:29 am
Yes, heroes. That’s unless you believe these men signed on to go to Iraq to specifically kill innocent people? I don’t buy that, and I think these guys were doing their job, to protect the client, and civilians were unintentionally killed. And those SOPs were signed on by State and by the management of Blackwater, and utilized for years in Iraq. It’s a war, and they did the best they could in a bad situation and with the SOP’s they had at that time. And sometimes SOP’s don’t cover some of the what ifs. I wasn’t there, and I will not judge. We’ll let a jury decide that.
To me, these guys are innocent until proven guilty. And despite what the DoJ thinks, or what the press thinks, the most important aspect of this case is, that these men were tasked with protecting high value clients in a war zone. There is nothing dishonorable or criminal about that, and they accomplished that mission of protecting the client while under fire.
If in a court of law these men are found guilty of a crime, then they should pay. But you won’t see me on the media bandwagon of calling them ‘war criminals’. That is how I felt about the Haditha case with the Marines, and this is how I feel about this case with Blackwater.
Comment on December 11, 2008 @ 11:49 am
I supported the Haditha Marines as well. Major differences: There has never been a question of whether military personnel can be held accountable for their actions. Also there was no question as to whether or not they were being fired upon. Also much of the physical evidence did not match up with witness statements. Kind of the opposite of the problems in the Blackwater case.
Agreed, everyone deserves to have a fair and open trail. However, the defense lawyers for these shooters will argue that they were acting outside of any law and that no entity beyond their own judgement has a right to second guess them or hold them accountable.
If this should indeed turn out to be the case, which many legal experts think it might, than the use of military contractors will no longer be morally or practically supportable. If they are like our “American Express card” and we can’t have wars without them then we won’t be able to have wars I guess or at least we will have to be a little choosier about when and why we have them.
Comment on December 11, 2008 @ 12:39 pm
“In short, many think Blackwater’s client, the State Department has had a double standard. While publicly it made all the right noises about following the rules on escalation of force and following proper firearms policy in private it told Blackwater just do whatever it takes”.
Nothing new under the sun here.
My nephew after finishing up his service in the Marine Corps became a county sheriff. He told me he learned about the methods they were allowed to use to physically control the prisoners at the sheriff academy. He also said that after he was assigned to the jail that his supervisors told him about, what the Bush Administration might call, “enhanced Physical control techniques” not covered in his formal training.
My advise to my nephew was to stick to the procedures that were taught at the academy and are spelled out on paper. His supervisors at the jail are not going to risk their careers to cover his butt if he gets unlucky. To further bring home the point I made him watch an HBO documentary on Abu Ghraib.
Comment on December 11, 2008 @ 4:03 pm
Hey marc, as a current security contractor, and as a former Marine, I do not view my service to country as ‘immoral’ or ‘not practically supportable’. And this is why I am speaking up about the concept on my blog, and on blogs like this. Max Weber can talk all he wants about what the state should or shouldn’t do, but in my view, the state’s first priority is self preservation. I believe that civilian contractors, coupled with a all volunteer military is the right combination at this time, and for this war. The alternative is to go to a conscription force, but that would take time and a complete retooling of the military and support apparatus. The only issues I see with today’s civilian contractors is that the client needs to get off their ass and actual manage these contracts. There are plenty of labor laws and plenty of rules to do this correctly, it just needs a strong contracting corps to watch over the whole process. The pay off would be less incidents and more value for the client.
As for the Blackwater case, I disagree about evidence and witnesses. It is a war zone and the crime scene was completely tainted. As for the witnesses, how can we trust them? Will these same witnesses come forth and say who was shooting at the Blackwater team? Will they identify the VBIED driver or accomplices? This is a war zone, not some city street in New York. Hell, the enemy does not wear a uniform, they use women and children, they kill innocents with mass bombings, and they view Blackwater and the Coalition as the same.
Finally, for the DoS to say they have nothing to do with the SOP’s or the quality of the service provided by Blackwater, is just stupid. If the WPPS program is laid out for the jury in a court of law, that myth will certainly be shot down. To put it in simple terms, every time the client survived an ambush or attack by the insurgents, thanks to the work of Blackwater contractors, and they had nothing but praise for surviving that incident, then that alone is proof of a client that approves of the tactics.
Comment on December 14, 2008 @ 1:32 pm
The one thing for sure to take away from Abu Ghraib is that just because DOD said the low level grunts could do, in fact had to do, the things they did, well that turned out to be no defence at all. Similarly the Blackwater grunts are going to learn the hard way that DOS assurances that they had carte blanc to waste Iraqi civilians will not hold water in any court. Also sadly for them, like in Abu Ghraib, “state secrets” laws will most likely prevent them from pointing the finger of blame upward. Too bad because they were just witless tools and should not be made to take the whole fall for the criminal behavior of DOS and Blackwater’s management.
Comment on December 18, 2008 @ 10:08 am