Is anyone really surprised by the incident involving Blackwater and eight dead Iraqis? Do the rules of war (cosmic, not legal) not follow that dramatic mandate about the gun on the wall being used by the third act? (Would that we were that close to the end.)
What we couldn't have predicted, however, was how dramatic a test of Iraq's sovereignty an incident like this would become.
That is, while the MSM have reported that Blackwater will be banned from Iraq, others who know the company's relationship to the Bush administration and the rules of impunity that have surrounded the private security companies all along -- like layers of concrete jersey barricades -- are probably willing to place a heavy bet against them.
I guess it should be said that company officials maintain that Blackwater personnel only started firing "to defend themselves" -- after the motorcade they were guarding came under attack. So the facts are not yet entirely clear. But if it's alleged that Blackwater employees killed innocent Iraqis unprovoked, the question is, what legal action can be taken against the company or its employees?
First, they are under contract to the U.S. State Department, so it's unlikely the BW employees would be covered by the Military Extraterritorial Jurisdiction Act.
Second, although Sen. Lindsey Graham (R-SC) added a clause to the 2007 Defense bill last year that changed the Code of Military Justice so that it would cover civilians involved in contingency operations, the Pentagon has not yet issued guidance policies reflecting the change.
Finally, Blackwater employees cannot be prosecuted under Iraqi law, because Coalition Provisional Authority Order No. 17, issued prior to the return of Sovereignty to Iraq (and never overturned) grants U.S. contractors and military personnel immunity from prosecution in Iraq.
The news reports say that Iraq's one point of leverage is the fact that the security contractors have to obtain gun licenses from the Iraqi government. Whether that's enough to get them to leave is another question.
The importance of this incident and how it plays out cannot be overstated, given that there are some 120,000 to 180,000 private contract personnel still working in Iraq, including at least 30,000 armed security personnel.
As the New York Times reports, "the deaths on Sunday that were linked to Blackwater have struck a nerve with Iraqis, who say that private security companies are often quick to shoot and rarely held responsible for their actions."
In other words, the Iraqi people are sick and tired of these mercenaries getting away with murder.
So the showdown continues, with Condi Rice scrambling to placate Maliki.
Meanwhile, there's another test involved: a test of Congress' resolve.
House Oversight Chairman Henry Waxman (D-CA) almost immediately announced that the committee will hold hearings to understand what actually happened and "the extent of the damage to U.S. security interests."
That's great, but hearings are not enough. This incident should also force Congress to reckon with the fact that not one contractor has been held accountable for harm done to innocent Iraqis.
We learned long ago that the use of private contractors should be limited; when they are used, it is imperative that they be held accountable for any violations of Iraqi civil rights. If it's imperative that the American taxpayers be protected from all the waste, fraud and accounting abuses caused by Halliburton and other contractors (including security contractors like Custer Battles), then that should go double for incidents like this -- where the damage to America's reputation is potentially immeasurable. When we outsource the work of soldiers to private contractors, they should be forced to live up to the same or higher standards of professionalism when it comes to respecting the rights of foreign citizens.
Rep. David E. Price (D-NC), Rep. Waxman and other colleagues in the House have introduced an important bill that would do much to address the current accountability gap. The "Transparency and Accountability in Security Contracting Act" (H.R. 369) would make all private security and military contractors subject to prosecution under the law, regardless of what part of the government they work for.
Private Security Contractors are working for the U.S. government in many countries around the world (e.g. think of DynCorp in Columbia). Therefore, as important as it is to end the war in Iraq as soon as possible, that alone will not be enough to hold companies like Blackwater accountable wherever they go.
That's why Congress should pass H.R. 369, "The Transparency and Accountability in Security Contracting Act" ASAP.
Given the extraordinary damage already done to Iraq and the Iraqi people, a bill like this is the very least that Congress could do.