State Loses Its Army

by emptywheel

I've imagined (and it's largely imagination) that Condi's little PR campaign of the last week was a desperate attempt to stave off DOD control over State's bodyguards--an attempt to retain an army for the exclusive use of the State Department. Condi went to (for her) unheard of lengths to try to play nice and pretend that State could manage a very large band of mercenaries.

Is it just coincidence that that effort ends as it becomes clear that State tried to cover-up the September 16 killings?

All State Department security convoys in Iraq will now fall under military control, the latest step taken by government officials to bring Blackwater Worldwide and other armed contractors under tighter supervision.

Secretary of State Condoleezza Rice and Secretary of Defense Robert M. Gates agreed to the measure at a lunch on Tuesday after weeks of tension between their departments over coordination of thousands of gun-carrying contractors operating in the chaos of Iraq.

Mr. Gates appears to have won the bureaucratic tug-of-war, which accelerated after a Sept. 16 shooting in central Baghdad involving guards in a Blackwater convoy who Iraqi investigators say killed 17 Iraqis. Military coordination of contractor convoys will include operations of not only Blackwater, formerly known as Blackwater USA, but also those of dozens of other private firms that guard American diplomats, aid workers and reconstruction crews. [my emphasis]

Much as I may believe that Condi is an incompetent jerk, this is not a good thing. It means that anything State tries to do will be beholden to the political interests of those running DOD. This was a fatal problem in summer 2003--when Rummy was able to pre-empt Colin Powell's more mature plans for Iraqi reconstruction by withholding logistical support. And it may become a fatal problem to Condi's attempts to support diplomacy over bombing. I've long believed this fight was about retaining the mercs in Iraq long enough to defend the military in the event of bombing campaign in Iran, and DOD control over the mercenaries makes this an easier scenario.

In other words, Condi's charm offensive appears to have failed. Gates has won the round. And that may well mean the advocates of diplomacy have lost the critical round.

Comments

[bmaz]

The NYT article doesn't address the subject, but aren't the DOD mercs under the UCMJ? Or are about to be? Does this mean that Blackwater will be also?

[sailmaker]

I say defund the mercs - all of them, DoD or DoS. That will let the cautious Dems off in the soon to be played 'stabbed them in the back, did not totally support the troops' scenario. Maybe it would hold off the invasion of Iran as well.

[Mad Dogs]

As bmaz suspected, per that same NYT article:

"Law enforcement officials said the Blackwater employees were given a Garrity warning, named after a Supreme Court case, Garrity v. New Jersey. This form of limited immunity does not bar a criminal prosecution but is seldom granted in a case in which a criminal prosecution is likely. It is almost never granted without the approval of federal prosecutors."

[lizard]

EW, are you sure about the friction between State and DoD? Gates and Rice usually seem closer to being on the same page than any two other Bush-idiots.

I spoke to a former contractor who reads the DoD takeover of guarding State as a way to boost contractor morale and prevent fairly large contractor "retirements", as well as a preemptive 'fix' to slow down the story. Apparantly they trust the Army more than they trust State, which is understandable.

The depth of the shit Blackwater finds itself in has contractors, for probably the first time since Bosnia, worrying about justice at the hands of a non-american justice system.

[bmaz]

Now comes the latest news courtesy of the LA Times, via the AP. It turns out that the state Department has blithely been handing out immunity to all Blackwater mercenaries involved in shooting incidents all along.

Limited immunity has been routinely offered to private security contractors involved in shootings in Iraq, State Department officials said Tuesday, denying such actions jeopardized criminal prosecution of Blackwater USA guards accused of killing 17 Iraqi civilians. .... The shooting investigation was initiated by the Bureau of Diplomatic Security hours after the attack. The inquiry was turned over to the FBI in early October after Justice Department prosecutors realized that the Blackwater bodyguards' statements could not be used in court.

A second senior State Department official, speaking on condition of anonymity because of the ongoing inquiry, said the agency has for years required its security contractors to give written statements within hours of any so-called "use of deadly force" in Iraq. ... It's not clear whether the waivers were ever authorized by the Justice Department, which decides whether cases are prosecuted. Blackwater spokeswoman Anne Tyrrell declined comment about whether the immunity waivers were part of the security firm's contract with the State Department. ...

So, the wholesale granting of immunity to any, and apparently every, Blackwater contracted mercenary involved in a shooting incident in Iraq, no matter how egregiously criminal, is not a bug, but rather a feature of State Department protocol. The rule of law simply does not apply to the Bush Administration and their hired guns. This is the way the State Department has run their little lawless operation all along. How nice.

The State Department has intentionally and routinely done this in an attempt to do everything they could to stop, and otherwise bugger up, any potential investigation and prosecution of their precious mercenaries. While it is true that there may not have been a good chance of a successful prosecution of these cases to start with thanks to Paul Bremer's Order 17, but the State Department sure did everything they could through delay, obfuscation, removal of evidence and witnesses, and, now we find, immunization, to screw up any possibility of prosecution. The conduct of State screams cover-up for the designed lawlessness of their private army and insolence to the rule of law, and the rights of humanity, from start to finish.

This is an insane way to investigate shootings that are clearly often questionable homicides. Immediately grant all the immunity you can to everyone involved? As a matter of routine? Amazing. The really interesting tidbit in the story is that Blackwater refuses to confirm it is part of their contract with the State Department. The bet here is that it is in the contract between Blackwater and the State Department. The whole State Department mercenary operation appears to have been designed to be completely lawless, and Blackwater won't even let it's high priced people talk to State without an even further grant of immunity. This is a sick setup.

[Pete Pierce]

"The American people need to be reassured that if there is corruption, their government will root it out."--Condi Minute Rice

"The Green Zone can be a dangerous place Congressman Waxman"

Yeah baby, particularly when guns+booze+Christmas parties are in the mix.

The laws regarding conduct of Americans in Iraq are still up in the air, as Congress drags its "rubberstamp anything Bush throws at us" butt, with House and Senate bills moving about as fast as the DOJ's investigation replete with people who have no legal authorization to give immunity like state department investigative hacks, including the fired ones,granting it.

The agreement of Rice and Gates does not take the place of much needed code section on this, and if the past is any experience the Uniform Code of Military Justice under Bush has hardly been a model for the Rule of Law with more holes than swiss cheese.

Immunity Deals Offered to Blackwater Guards

"A State Department review panel sent to investigate the shootings concluded that there was no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to address the problem.

The House overwhelmingly passed a bill this month that would make such contractors liable under a law known as the Military Extraterritorial Jurisdiction Act. The Senate is considering a similar measure.

Some legal analysts have suggested that the Blackwater case could be prosecuted through the act, which allows the extension of federal law to civilians supporting military operations."

[Elliott]

From a link at Informed Comment:
Private security firms to lose Iraq immunity
"IRAQ'S government yesterday approved draft legislation to lift immunity for foreign security companies.

The draft law, which was likely to pass overwhelmingly given Iraqi anger over the company Blackwater's seemingly unprovoked killing of 17 Iraqis last month, was certain to deepen tensions between the Americans and the government of prime minister Nouri al-Maliki..." more>>

http://news.scotsman.com/international.cfm?id=1733872007

[Jodi]

The job Blackwater was doing will go on with or without Blackwater per se, and in the same way with contractors who will be alert, and shoot when they feel threatened no matter who has the supervisory title. If they can't do that, then they will not go out, and the USA diplomacy and rebuilding work will stop.

Remember most of the contractors of highly skilled ex-military. They will have no problems with soldiers riding along. They can all shoot at the enemy together.

It is the job itself that is the determining factor, not the men.

[emptywheel]

lizard

I agree that Condi and Gates are closer to the same page than Condi and Cheney. But that doesn't change the fact that the need for State contractors in the first place came from DOD refusing to support State going back to 2003--and thereby dictating policy, even contrary to Bush's stated goals. And it doesn't change the fact that this will mean State will be much more reliant on--and managed by--DOD. And it doesn't change the fact that Condi clearly was trying to avoid just this outcome, what with her two sets of new guidelines for Blackwater.

[lizard]

EW - Good points, and thanks for answering. I think there is a bit more here than meets the eye, and that a lot of what is happening with the contractors is being done for internal contractor morale and am trying to get that point noticed, because in the next few weeks it will be tremendously important. But you are certainly right that Condi didn't want this.

[maunga]

Very perceptive as usual, EW, As someone above noted Condi and Gates have been considered slightly bonded being not quite so heavily marching to A*P*C's tune as Bush and Cheney, and thus possibly more likely to work on behalf of the US rather than some other country, so one must hope the rift is not too deep.

Of course Bush and Cheney ave fostered and expanded throughout the DoD the failure to understand that using weapons is the last resort when diplomacy has failed, thus the DoD and its master the Sec of Defence should always be subservient to State.

So we have real problem when the Sec of State is a clever but dumb amateur who does not 'get' the problem she has caused.

[Frank Probst]

You know the situation is bad when Condi is considered one of the good guys. Now it's going to be even harder for her to use her diplomacy skills to improve things, like did in...um...uh...let me get back to you.

[cboldt]

It isn't exactly clear from the article as to what "being under DoD control" amounts to. It may be little more than obtaining situational awareness and "clearance to move" being granted by the DoD, to DoS contractors.

IOW, I don't see where the contracts are being removed lock, stock and barrel from the DoS, and handed over to DoD.

See Ambassador Patrick F. Kennedy on the Report of the Secretary of State's Panel on Personal Protective Services in Iraq for lots more, at least from the State Department's perspective.

[Katie Jensen]

I was heartened to hear the candidates (at least some but not enough) telling the american people clearly, that our system is broken. Democracy is broken. The system of government that set us apart from the rest and granted us god's good grace has slipped to it's knee's.

The question creeps into my mind. What won't Bush/Cheney do for the love of money and power? What is beneath them? When I ask myself this question I am appalled at the truth that creeps to the surface on this very scary halloween.

[freepatriot]

didn't I tell you that the shit stain would be around trying to defend murder and the murderers ???

The job Blackwater was doing will go on with or without Blackwater per se, and in the same way with contractors who will be alert, and shoot when they feel threatened no matter who has the supervisory title. If they can't do that, then they will not go out, and the USA diplomacy and rebuilding work will stop.

Remember most of the contractors of highly skilled ex-military. They will have no problems with soldiers riding along. They can all shoot at the enemy together.

It is the job itself that is the determining factor, not the men.

Posted by: shit stain | October 31, 2007 at 07:57

since the shit stain is willing to suspend any moral values to defend the idiot presnit, can we all agree now that the shit stain has no redeeming moral values

by their fruits shall you know them

the shit stain isn't a christian, and the shit stain brings shame to any Americans who DO have moral values

[cboldt]

"Officials described the agreement [between DoD and DoS] as a general understanding that the military should have more oversight over how private guards operate.

NPR : Rice, Gates Agree on Rules for Iraq Contractors

The only active step I see is "Military coordination of contractor convoys ," with some lip service to "rules of engagement" and "accountability." I assume the rules of engagement aren't materially different so the issue is one of accountability; and the line of accountability isn't changed AT ALL just because the private guys are required to coordinate their moves with the DoD. I don't see this agreement as amounting to much of a tug of war whatsoever. It appears Rice had ordered some of the changes (in convoy cameras, which Blackwater ASKED FOR, and was previously rejected by DOS; and DOS security agents to accompany each convoy) of her own accord, weeks ago. The only new thing is apprising the DoD of impending convoy motion.

Military coordination of contractor convoys will include operations of not only Blackwater, formerly known as Blackwater USA, but also those of dozens of other private firms that guard U.S. diplomats, aid workers and reconstruction crews.

Rice, Gates set rules on armed contract firms (10/23/07)
Rice Implements New Rules For Blackwater (10/05/07)

[maunga]

Dear EW --- What appears above under my name was not posted by me, and what I did write does not appear at all........ ??????

[bmaz]

cboldt, EW, Whoever - I am still interested in the question of what, if any, applicability, even partial, the UCMJ has. I would swear i read somewhere that DOD either had, or was going to, bring their mercs under it. Am I nuts or was there something on this? And if there is something to it, does that mean Blackwater will no w be under it too?

[freepatriot]

yo bmaz, you're a lawyer type ...

here's a question for you

if george and the condiliar gave US Immunity to a bunch of murdering fucks, are the condiliar and the idiot presnit criminally liable for the acts of those murdering fucks under ICC Law ???

seems to me the george and the condiliar should be held responsible for the crime against humanity if they offer immunity to the people who commit crimes against humanity

as I see it, there ain't no absolution of responsibility given thru immunity deals. the official who offers immunity assumes all criminal liability in the ICC

does my view agree with International law, if you know ???

and ew

just so you know, what I wrote is what I wrote

was there ever a doubt ...

[cboldt]

There are direct lines of legal liability for DoD contractors, my primitive understanding being that those lines are under both UCMJ and MEJA.

My reading of the current "agreement" between DoS and DoD regarding DoS contractors says absolutely NOTHING about the DoS contractors having an change in exposure to legal liability. They are not DoD contractors. They have a new operational protocol, being to inform DoD of their movements.

I've seen no evidence that the new agreement has any impact whatsoever on legal liability, and what evidence I have seen, points away from creating a clear line of legal liability under UCMJ, MEJA and/or USC.

[bmaz]

freepatriot - i don't know diddly squat about ICC provisions. But my guess is no. For one, although it complicates a criminal prosecution of the mercs, it really was not a full judicial immunity that was given, so they can be prosecuted. Also, I am not sure the ICC would honor or care about any immunity grant, especially this limited one; not that the US would honor anything to do with the ICC anyway. Now, if the US were amenable to ICC jurisdiction, I would think that Bush and Rice would have all kinds of problems for being in command of these Blackwater idiots to start with, as well as for aiding and abetting a coverup. All speculation though...

[bmaz]

Thanks cboldt. Pretty much what I pictured. So, this is really another episode in the continuing series of dog and pony shows. Lots of noise about the big changes, and not much real change, especially the big one that would actually bring the State Mercs under some rule of law. They are going to coordinate with the military control tower before taxiing around; big fat whoopee.

[suzann]

So, when Colin Powell said the Pottery Barn rule ('you break it, you own [sic]it'), he wasn't admonishing or warning, he was stating the goal: to own Iraq as a military stronghold to take over the entire Middle East?

[Neil]

didn't I tell you that the shit stain would be around trying to defend murder and the murderers ???
Posted by: freepatriot | October 31, 2007 at 09:38

You did freepatriot, you did. You try scrubbing, you try bleaching, it seems there's nothing that'll get the shit stain out but now there's OXYclean. ‘No shit stain’ would be a treat but since there's no treat, this is the trick. Happy All Souls Day. On this day, consider the Iraqi civilians, euphemistically called collateral damage, bombed and gunned down without provocation by Blackwater and other American forces since the invasion to secure Saddam's nukes oil.

[JohnLopresti]

State's second news conference in one morning, yesterday; Sean McCormack, discussing immunity issue.
Online journalist mulls the incremental validity of the comparison, 5 weeks ago, between Iraq 2003-2007 and South Korea occupation 1946-2007.
Fragmentary reflection of the tawdry history of solder of fortune catspaw implementation in an area only diffusely actually governed as Eurocolonialists vacated leaving a powervacuum in 1970s that played havoc with African existence.
Apologete for UCMJ expounds in Houston paper three days ago regarding history's sweep of which the December 16 mercenary incident was a scintilla.
One interesting datum distillable from one of the above links was the Scott Horton enunciated concern that a new feature of the US military now in the Iraq conflict is the majority of the teeth being mercenaries, in contrast to any prior time. I am still looking for the early flames the constitution authors tossed about in the Hessian trooper years centuries ago. There was something about the staged FEMA news conference last week, which barred real reporters from calling in questions to the actor-employees, that reminds me of what the scandal over the December 16 roguishness seems to highlight, that there is information control, but also little forethought behind some deployments. Rice like many Secretaries of State before her, had need for a difficult job to be done; but the new configuration of the current conflict compared with the regimentation of past hostilities, provided laxity for misdirection, to couch it in euphemistic terms. Clearly there is a depth of mechanisms for control of egregious violations of rules of conduct; but also in these post Red Book times, asymmetry is going to elicit from national force deployments unpredictable responses. The unelaborated subtext in the Houston article linked above is that resorting to a private army also is congruent with the current administration's penchant for nonpublic solutions for public problems. I think State walks a fine gray line between Defense and Intelligence departments, and being a career diplomat has become less glorious and more quixotic in recent decades. It might be interesting to hear some forward looking ideas from Intelligence, if the red herring about immunity for Bwater December 16 is a new paradigm for a shifting way of addressing the community of nations and intergovernmental subterfuge is becoming an outmoded way of affecting relations among countries, and if mercenaries are going to have less carte blanche to create bailiwicks of independence, Intell likely has some concept about what the next way to redraw maps might be; or perhaps the maps are personal and less ambitiously reflective of slow bureaucratic UN dreams of a new world order.

[apishapa]

Why hasn't any congressman or senator proposed a uniform set of rules and regulations governing the contractors both in the U.S. and in foreign countries, stating unequvocally that they are subject to U.S. Law and exactly how they are held to account. How GODDAMNED hard would that be? I know it would raise a shitstorm, but it needs to be raised and dealt with. In that same law there needs to be a rpoper set of rules covering the issuance of such contracts, including a requirement of insurance coverage for any and all fuckups they create.

To have hundreds of thousands of lawless contractors running all over the world, breaking laws, killing people in our name and out of control is bullshit.

[Jodi]

What I said is true. You are finally begining to "get it."

Albeit, very slowly, as usual.

[Rayne]

bmaz, freepatriot -- look what I found:

The United States cooperates with many other nations to keep the peace, but we will not submit American troops to prosecutors and judges whose jurisdiction we do not accept.… Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable International Criminal Court.

This is Bush, quoted by John Bolton in 2002, when Bolton was explaining why the U.S. will not acknowledge ICC at risk of U.S. sovereignty.

Huh. If it's good enough for Bush to say that folks like Blackwater "serving under an American flag" (at the order of DoS and DoD) are subject to American prosecutors and judges, it's good enough for me. PROSECUTE THEM.

[Rayne]

BTW, I noticed that not only has the DoS Chief of Security left, but now Karen Hughes is out of there.

Coincidence? or merely overdue housekeeping?

[bmaz]

Rayne - Boy, on the surface I like it; but it isn't going anywhere. Thats "troops", not Blackwater, which are not troops and are arguably not under any law. that is why I was so interested if the much ballyhooed shift of the State Blackwater mercs included bringing them under the DOD guidelines of UCMJ etc as the DOD contractors appear to be. So far, I have found absolutely nothing to indicate any intention to bring the State Blackwater folks under these legal frameworks; and cboldt, who is much better at ferreting out these kind of things than I am, finds nothing either. Rayne, I think there can be a prosecution of these Blackwater dudes with a little creative lawyering by the DOJ; however, I can't say as I give very good odds on any convictions. Every direction you turn, whether jurisdictional, evidentiary, taint from the limited immunity agreements, complicity of the DOJ/Administration to start with, and everything else, presents a ripe area to exploit by a good defense lawyer. The little immunity ruse and delay occasioned by the good folks at State just about put the death blow on what would have been an extremely difficult prosecution to start with.

[Rayne]

bmaz -- think you just described a strong case for obstruction of justice.

[Mary]

There has been one contractor prosecution - an interrogation death prosecution, although no murder component in the charges.

Completely off topic, and I have only had time to get as far as this statement in EW's liveblog (not so live now I guess), but it looks like Leahy has picked up on the Comey testimony and Wainstein showed up willing to dance, but still couldn't get get "AG Certification" on the card:

From EW's live blog update:
Update: ACLU observer Tim Sparapani agrees that this is a dodge, effectively admitting that the telecoms didn’t have full authorization:
Wainstein bombshell in Leahy’s first question. He all but said that the gov’t did not provide legally-sufficient AG certs to the companies. They got “assurances” but not FISA-compliant letters.

I think he should be referencing the telecom act, not FISA, for the compliance of the certifications and if I finish this evening reading the live blogging, it may all change, but it looks like Leahy is thinking they did not give statutorily compliant certifications.

[maunga]

EW or a Moderator

There is a posting at 9.24am which is not what I wrote and submitted: there is one under cboldt's handle at 9.39am which I did write: the succeeding one to 9.39am, at 9.52am, purporting to be by me, is again not of my writing.

What is happening?

I should still like to see my original and genuine 'pithy and pertinent' posting of 9.24 put up here.

[tekel]

close that italics tag.

[Shit Stain Remover]

What I said is true. You are finally begining to "get it." Albeit, very slowly, as usual.
Posted by: Jodi | October 31, 2007 at 13:40

SHIT STAIN JODI was here.

[Nell]

apishapa: Why hasn't any congressman or senator proposed a uniform set of rules and regulations governing the contractors both in the U.S. and in foreign countries, stating unequvocally that they are subject to U.S. Law and exactly how they are held to account.

They have, months ago, and it's recently passed the House. Similar legislation sponsored by Obama is expected to pass the Senate.

There is no need for new laws governing contractors, armed or not, operating in the United States. Here they are subject to the full range of civil and criminal law.

Abroad, there has been at best a seemingly calculated ambiguity; at worst deliberately structured impunity. I don't know if the new legislation will be the answer, but it's a damned sight better than the existing situation.

@bmaz on UCMJ: This January 2007 article in the Norfolk Virginian-Pilot that broke the story of the Blackwater murder of the Iraqi VP's guard explains the legal and situation at that time:

Price's legislation would extend the reach of the Military Extraterritorial Jurisdiction Act to allow prosecution in civilian courts of any contractor involved in a military operation. The law has been on the books since 2000 but has not been applied against contractors in Iraq.

Price's attempt to subject contractors to civilian courts comes on the heels of legislation enacted last fall that seeks to put them under military law.

Sen. Lindsey Graham, R-S.C., an Air Force Reserve lawyer, inserted language in a military spending bill that extends the Uniform Code of Military Justice to cover contractors in a "contingency operation" such as Iraq - not just in a declared war.

Graham's measure applied only to Defense Department contractors, however. I don't believe that the shift to DoD 'coordination' is going to be enough to bring private military in Iraq under the UCMJ, though. If you aren't under someone's command, you're not accountable to them, period. U.S. criminal law is the way to go, IMO.

Along with a determined and continuous effort to reduce the number of private military contracts to zero.

[Nell]

@John Lopresti: Please use paragraph breaks.

[JohnLopresti]

ERRATUM: revising from December 16 to September 16, re@12:50

[emptywheel]

maunga

Just wanted to let you know I see your comment. I'm confused myself as Typepad sees it as coming from you. I'll try to figure out what's up.

[Marylou Duran]

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