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The Perils of the Punctilious PMSC Prosecution

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In all the oceans of ink that has been spilled over the years about the legal accountability of private military and security contractors (PMSC) I have never seen anyone say that one of the problems in prosecuting contractor misconduct is that prosecutors are too ethical. I know, I know, you too are holding your head and saying, are you kidding me?

But evidently it is a real problem, or at least enough of one to have been the subject of an article last year in the Georgetown Journal of Legal Ethics. The article, "Federal Civilian Criminal Prosecutions of Private Military Contractors: Inherent Legal Ethics Issues" by Donnamarie Mckinnon finds that a key reason for the problems encountered in bringing PMC employees to justice in American courts can be found in legal ethics, as the professional rules of conduct sometimes pose an additional obstacle for prosecutors.

Mckinnon's note focused on the indictment against Blackwater security guards who were involved in a September 2007 shooting at Nisour Square in Iraq (of which the fifth anniversary was this past weekend) that left Iraqi civilians dead and wounded. She writes:

The judge cited prosecutorial misconduct as the primary reason for dismissing the case in 2009. The difficulty of obtaining adequate evidence against the Blackwater guards caused the prosecutors to overreach; arguably, they ran afoul of Model Rule 3.8 of the Model Rules of Professional Conduct, which sets out general ethical guidelines prosecutors must follow. The complexities of the Blackwater case illustrate the issues prosecutors confront when bringing charges against PMC employees and how difficult it is to prosecute them successfully and remain within the boundaries of legal ethics.

For those who don't remember the details of the shootings, here is some background.

On September 16, 2007, gunfire broke out in Nisour Square in Baghdad, an area heavy with car and pedestrian traffic, after a bomb had exploded nearby. Shots fired by Blackwater security guards, hired by the United States Department of State, ultimately left 17 Iraqi civilians dead and 24 wounded. Mere hours after this incident occurred, the Department of State's Diplomatic Security Service ordered all members of the Blackwater convoy involved in this incident to give interviews at the State Department offices in Baghdad. These security guards submitted written statements describing the details of the shooting, in exchange for immunity, which prevents the use of these written statements in a subsequent prosecution.

The Department of Justice, which took on the prosecution of these guards, premised jurisdiction on the Military Extraterritorial Jurisdiction Act ("MEJA"), which provides for jurisdiction in the United States to prosecute the crimes of PMCs abroad. MEJA states that:

[w]hoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States -- while employed by or accompanying the Armed Forces outside the United States... shall be punished as provided for that offense.

The Blackwater indictment was the first indictment under MEJA against a PMC not hired by the Department of Defense.

The case was tried in the United States District Court for the District of Columbia. On December 31, 2009, Judge Ricardo Urbina granted Blackwater's motion to dismiss on the indictment that charged the defendants with voluntary manslaughter and firearms violations as a result of the September 16, 2007, incident. The motion was granted based on the prosecution's multiple violations of the principle established under Kastigar v. United States by improperly using compelled statements (under Garrity v. New Jersey) made by the defendants to State Department investigators. Kastigar provides that if a defendant shows that his testimony containing matters relevant to a federal prosecution was given under "a state grant of immunity," the federal government must affirmatively prove that its case was not "tainted" by the immunized testimony. The government must demonstrate that the information in question was obtained from evidence altogether independent of the disputed immunized testimony. The District Court determined that the United States "has utterly failed to prove that it made no impermissible use of the defendants' statements or that such use was harmless beyond a reasonable doubt."

When discussing prosecutorial misconduct, such as that in the Blackwater case, Model Rule 3.8, Special Responsibilities of a Prosecutor, provides guidance. But the problem is that Rule 3.8 is too broad and vague.

Mckinnon wrote:

Rule 3.8(a) confers broad discretion on the prosecutor as to whether to bring criminal charges. The charges the prosecutor brings against the defendant only have to be supported by probable cause. For this reason, Rule 3.8(a) is considered a "minimal" rule. Prosecutors cannot knowingly bring charges unsupported by probable cause against a defendant; this is considered fundamentally unfair. Rule 3.8(a) has been criticized for being deficient and imprecise because there is no clear, defined probable cause standard. One attempted elucidation of the standard is that probable cause is "generally understood to mean a relatively limited and informal requirement of evidentiary proof, well below the proof required to support conviction at trial." The DOJ's interpretation, on the other hand, is that a prosecutor should not bring charges against a defendant unless "there is legally sufficient evidence for a jury to convict the accused of the crimes charged." The probable cause standard usually requires that the prosecutor can support the charges brought against the defendant with a valid criminal statute outlawing the defendant's alleged actions and "with facts available in the form of apparently admissible evidence." Because the probable cause standard in Model Rule 3.8(a) is so vague, it can invite prosecutorial misconduct.

The Blackwater case exemplifies the problems with the probable cause standard. Prosecutors must support the charge they are bringing against a defendant with evidence that will be admissible in court. With the Blackwater case, however, the compelled statements that were inadmissible in court were the primary basis of the charges brought against the Blackwater guards. The lead DOJ prosecutor, Kenneth Kohl, was informed that these statements were to be avoided because they were potentially inadmissible. Without these statements, however, the DOJ did not have a case. Kohl decided to proceed anyway.

Aside from this problem it is worth remembering that prosecutions of PMC employees in United States federal courts are inherently problematic. Three common reasons for this are:

The lack of evidence that plagues prosecutors when trying to bring a case against PMCs. It is very difficult for the Department of Justice to collect physical and forensic evidence in war zones, especially halfway around the world. As Professor Charles Rose of Stetson University College of Law stated, "The battlefield is not a place that lends itself to the preservation of evidence." There are also issues of evidence availability and witness availability. For example, because of a lack of evidence, the DOJ declined to charge Andrew J. Moonen, a Blackwater employee who allegedly killed a bodyguard of the Iraqi vice president in 2006. Federal prosecutors and Federal Bureau of Investigation ("FBI") agents traveled to Baghdad several times to interview witnesses and collect evidence, but the DOJ could not build a sufficient case against Moonen.

Second, is that prosecutors do not have the means to undertake a thorough investigation.

A third problem arises when PMC employees assert self-defense in response to the charges of criminal misconduct. In a theater of war, a self-defense claim is convincing because many people, both civilian and military, are regularly armed.

Fourth, and most significantly, is that there is no clear, defined jurisdiction to prosecute PMCs; it is unclear whether they should be prosecuted under civilian or military law.

If a prosecutor does elect to try PMCs under civilian law, there is a question of whether the federal laws of the United States allow for the criminal prosecution of PMC personnel. MEJA is a fairly new statute, and the question of who exactly can be prosecuted under the statute is still unresolved. For example, before the indictment was issued against the five Blackwater security guards, no federal civilian criminal prosecution of PMC employees contracted by an agency besides the Department of Defense had ever occurred. In addition, prior to the Blackwater prosecution, many had expressed doubt as to whether there was any jurisdiction under MEJA to prosecute State Department contractors because they were hired to protect American diplomats in Baghdad, not to support the Department of Defense mission in Iraq. MEJA prosecutions do not have a great track record for prosecutions of Defense Department contractors: only a few civilian contractor employees were successfully prosecuted under MEJA, including a prosecution for child pornography in 2007. Therefore, a huge jurisdictional gap in the law and the lack of substantial precedent prove to be significant obstacles for DOJ prosecutors when prosecuting PMC personnel.

Is there a better way? According to Mckinnon, "There are two potential actions to take regarding this broken system: (1) Model Rule 3.8 can be modified to create an exception for extraterritorial prosecutions; or (2) Congress can strengthen the laws regarding extraterritorial prosecutions so Rule 3.8 will not be a hindrance on the prosecutions. Because modifying Rule 3.8 is not very realistic, congressional action is the best way to ameliorate the problems DOJ prosecutors face when trying PMC employees in federal civilian criminal prosecutions."

Congress could strengthen the laws regarding extra-territorial prosecutions so Rule 3.8(a)'s probable cause standard would not be a hindrance on the prosecutions. In 2010, a bill, the Civilian Extraterritorial Jurisdiction Act ("CEJA") of 2010, was referred to the Senate Judiciary Committee. CEJA would provide for the federal criminal jurisdiction of criminal conduct committed by anyone "employed by or accompanying any department or agency of the United States other than the Armed Forces." In addition, the bill establishes the creation of Investigative Units for Contractor and Employee Oversight. The CEJA provisions would come after MEJA in the U.S. Code. This bill, however, did not come up for vote in the House of Representatives and the Senate and therefore did not become law. This bill was introduced in a previous session of Congress, and due to Congressional protocol that clears proposed bills that have not become law, at the time of publication this bill is currently not up for consideration. This bill, however, could and should be reintroduced in another session of Congress with one addition.

CEJA, by expanding jurisdiction to PMCs employed by any department or agency of the United States government, eliminates the unclear jurisdictional problem that plagued the DOJ. Even though the DOJ prosecuted the Blackwater guards under MEJA in United States v. Slough, it is still unclear whether MEJA provides the appropriate jurisdiction for Department of State contractors. CEJA also establishes the creation of Investigative Units for Contractor and Employee Oversight, under the direction of the Attorney General, to investigate any alleged criminal misconduct committed by PMC employees abroad. The bill gives designated law enforcement personnel the power to arrest PMC employees abroad. The establishment of these units would help eliminate the question of who has jurisdiction to investigate these criminal allegations and would also allow for their immediate investigation. In addition, CEJA provides for oversight and requires the Attorney General to submit reports to Congress specifying the number of offenses that were alleged, investigated, and referred to prosecution, the number of prosecutions that resulted from these referrals, and the number of times the Investigate Units were deployed.