After more than five years of rampant violence and misconduct carried out by the massive army of private corporate contractors in Iraq -- actions that have gone totally unpunished under any system of law -- the US Justice Department appears to be on the verge of handing down the first indictments against armed private forces for crimes committed in Iraq. The reported targets of the "draft" indictments: six Blackwater operatives involved in the September 16, 2007, killing of seventeen Iraqi civilians in Baghdad's Nisour Square.The Associated Press reports, "The draft is being reviewed by senior Justice Department officials but no charging decisions have been made. A decision is not expected until at least later this month." The AP, citing sources close to the case, reports that the department has not determined if the Blackwater operatives would be charged with manslaughter or assault. Simply drafting the indictments does not mean that the Blackwater forces are certain to face charges. The department could indict as few as three of the operatives, who potentially face sentences of five to twenty years, depending on the charges.
If the Justice Department pursues a criminal prosecution, it would be the first time armed private contractors from the United States face justice.
But that is a very big "if."
"The Justice Department has had this matter for fourteen months and has done almost everything imaginable to walk away from it -- including delivering a briefing to Congress in which they suggested that they lacked legal authority to press charges," says Scott Horton, distinguished visiting professor of law at Hofstra University and author of a recent study of legal accountability for private security contractors. "They did this notwithstanding evidence collected by the first teams on the scene that suggested an ample basis to prosecute. The ultimate proof here will be in the details, namely, what charges are brought exactly and what evidence has Justice assembled to make its case. Still, it's hard to miss Justice's lack of enthusiasm about this case, and that's troubling."
Even if some Blackwater operatives face charges, critics allege it is the company that must be held responsible. "I am encouraged that the Justice Department is finally making progress in the investigation, but I am disappointed that it took over a year and a lot of pressure for the department to take any action," says Illinois Congresswoman Jan Schakowsky, who introduced legislation that seeks to ban using Blackwater and other armed security companies in US war zones. (She was also the national campaign co-chair of Barack Obama's presidential campaign and is a top candidate to replace him in the US Senate.)
"While it is important to hold these individual contractors accountable for their actions, we must also hold Blackwater accountable for creating a culture that allows this type of reckless behavior," adds Schakowsky. "The indictments do nothing to solve the underlying problem of private security contractors performing critical government functions. The indictments will likely get rid of a few bad apples, but there will be no real consequences for Blackwater. This company is going to continue to do business as usual -- the solution is to get them out of this business."
News of potential indictments over the Nisour Square shootings comes as the State Department is reportedly preparing to hit Blackwater with a multimillion-dollar fine for allegedly shipping as many as 900 automatic weapons to Iraq without the required permits. Some of the guns may have made their way to the black market.
Blackwater has served as the official bodyguard service for senior US occupation officials since August 2003, when the company was awarded a $27 million no-bid contract to guard L. Paul Bremer, the original head of the Coalition Provisional Authority. To date, the company has raked in more than $1 billion in "security" contracts under its arrangement with the State Department.
Despite widespread accusations of killings of civilians and other crimes, not a single armed contractor from Blackwater -- or from any other armed war corporation -- has faced charges under any legal system. Instead, they have operated in a climate where immunity and impunity have gone hand in hand. At present, private contractors -- most of them unarmed -- outnumber US troops in Iraq by roughly 50,000 personnel.
There is no doubt that the Bush administration will continue enthusiastically to use armed private forces until the second Bush leaves office. This means that the future of Blackwater and the hundreds of for-profit war corporations servicing the Iraq occupation will lay with President-elect Barack Obama. This includes Blackwater and at least 300 other companies, which have been hired by the US government for privatized armed services in Iraq to the tune of about $6 billion in taxpayer money.
"One of the biggest problems that Barack Obama is going to have is turning the government back into a civil service and getting rid of all the private contractors," says Washington Democratic Representative Jim McDermott. "The private contracting thing is the most erosive thing that this administration has done. You look at all the things that are being run by private contractors, you simply cannot be handing money to a private contractor who is not under the law of that country or the law of this country and can do anything they want. They're really -- they're rogue outfits."
Obama has been a passionate critic of the war industry and is the sponsor of the leading Democratic legislation in the Senate to bring more effective regulation and oversight to it. But he has stopped short of supporting Schakowsky and Senator Bernie Sanders's legislation seeking a ban on using Blackwater and other armed contracting companies in Iraq. One of his top foreign policy advisers told The Nation earlier this year that Obama "can't rule out [and] won't rule out" using these companies in Iraq.
In a brief interview with Democracy Now! in February, Obama explainedhis position when asked about the report in The Nation.
"Here's the problem: we have 140,000 private contractors right there, so unless we want to replace all of or a big chunk of those with US troops, we can't draw down the contractors faster than we can draw down our troops," Obama said. "So what I want to do is draw -- I want them out in the same way that we make sure that we draw out our own combat troops."
As Obama's inauguration day draws near, he is facing increased calls from Democrats who have spent years investigating Blackwater to ban the company. Most prominent among these is Henry Waxman, chair of the House Committee on Oversight and Government Reform. He called on Obama to cancel Blackwater's security contracts. "I don't see any reason to have a contract with Blackwater," says Waxman. "They haven't lived up to their contract, and we shouldn't be having these private military contracts. We should use our own military."
As of now, Blackwater's Iraq contract expires in April (it was extended for a year by the State Department despite numerous investigations). "I think there should be very strong handcuffs put on this whole outsourcing question, but particularly with these private security contractors like DynCorp and Blackwater," says Vermont Democrat Peter Welch, who serves on the Oversight Committee with Waxman and supports the calls for Obama to cancel Blackwater's security contracts. "It's just an incredible waste of taxpayer money. It dishonors the Code of Military Conduct. Our soldiers are over there. They abide by rules. Blackwater doesn't."
But not all Democrats agree. Senator John Kerry, who is reportedly among the people being considered for Secretary of State in the Obama administration, shares the president-elect's view. "I don't think they should be banned," says Kerry. "I think they need to operate under rules that apply to the military and everybody else."
As of January 20, 2009, if Obama decides to keep Blackwater and other armed war corporations on the US payroll, these private forces would go from being Bush's mercenaries in Iraq to Obama's. As commander in chief, he would be responsible for their crimes. As for the accountability issue, many critics allege that the most serious problems in holding contractors responsible for their crimes stem from the Bush administration's covering-up of their misconduct and immunizing them from prosecution, and the total lack of political will to bring them to justice. When Obama appoints a new attorney general, there will be more than five years' worth of crimes to investigate -- and prosecute.
Jeremy Scahill, an independent journalist who reports frequently for the national radio and TV program Democracy Now!, has spent extensive time reporting from Iraq and Yugoslavia. He is currently a Puffin Writing Fellow at The Nation Institute. Scahill is the author of Blackwater: The Rise of the World's Most Powerful Mercenary Army.