What happens to private contractors who kill Iraqis? Maybe nothing

The problem is that no one seems quite sure what law, if any, would apply to security firm contractors, and any potential applications are untested and would be vigorously challenged. Uniformed military personnel are subject to the Uniform Code of Military Justice, and "persons serving with or accompanying an armed force in the field" are technically subject as well. But the application of the UCMJ to these contractors would undoubtedly be challenged on constitutional grounds, and even if it were to hold up in court, the CRS report noted a particular irony: At least one court has held that "a serviceman who had been discharged was no longer amenable to court-martial." In other words, Blackwater could protect its employees from the UCMJ simply by firing them.

Another potential avenue for prosecution is the Military Extraterritorial Jurisdiction Act of 2000, or MEJA, which applies to civilians. Originally written only to cover civilian employees of the Department of Defense and contractors working for the DOD, it was changed after the Abu Ghraib scandal, which involved contractors not working for DOD, to cover persons "employed by or accompanying the Armed Forces outside the United States." But even that definition might be too narrow to apply to the Blackwater employees in question. Those employees, State Department spokesman Sean McCormack confirmed in an interview with Salon, work for the State Department, not the DOD. "[They] report to our diplomatic security office in Baghdad."

Horton says he believes that "Blackwater is preparing to make the argument, if they ever get in the crosshairs of this, that they are there with a Department of State diplomatic contract and, therefore, MEJA doesn't apply."

Rep. David Price, D-N.C., is the sponsor of a law that attempts to deal with this loophole, the Transparency and Accountability in Military and Security Contracting Act of 2007.

"I just want to know whether it can and will be prosecuted if prosecution is warranted, and I don't think we have the clear legislative coverage of this that we should," Price said in an interview Monday. "If the contractors were under a DOD contract, that wouldn't be the question so much as whether the administration's doing its job pressing forward, but here you do have a real question about whether it has the authority in the first place."

Singer concurs. "There's a lot of stuff that could be done. It's just there's no easy answers," he says. "You could use them as a test case for UCMJ. You could hand them over to the Iraqis. President Bush says it's a functioning democracy. You could try to test out MEJA on them. You could investigate it and find out that actually it was a rightful shooting. There's lots of coulds, but there's no silver-bullet solution. We've painted ourselves in a corner."

Back in Baghdad, the Iraqis may not have the power to enforce the one action they've taken so far, the simple revocation of Blackwater's license. A spokesman for Iraq's Interior Ministry, Brig. Gen. Abdul Kareem Khalaf, told reporters Monday: "We have revoked Blackwater's license to operate in Iraq. As of now they are not allowed to operate anywhere in the Republic of Iraq. The investigation is ongoing, and all those responsible for Sunday's killing will be referred to Iraqi justice."

But it's not clear that Blackwater even has a license to revoke. Speculation abounded on Monday that it did not. On June 16, the Washington Post reported that "Blackwater USA ... [has] not applied, U.S. and Iraqi officials said. Blackwater said that it obtained a one-year license in 2005 but that shifting Iraqi government policy has impeded its attempts to renew."

Lawrence T. Peter, the director of the Private Security Company Association of Iraq, an industry trade group, told the Post on Monday that Blackwater did have a license. He seems to be contradicted by his own organization's Web site, however, which lists Blackwater as in the process of obtaining one. Salon contacted Peter to ask whether Blackwater was licensed. He did not answer the question, but a spokesman did forward a statement emphasizing that members of his trade group "pride themselves" on abiding by the "Rules for Use of Force" in effect.

By Monday afternoon, Iraqi officials seemed to be backing away from their earlier statements, making their pronouncements about Blackwater's license much less definitive. Time magazine reported that "a senior Iraqi official ... said that prime minister Maliki is expected to discuss the episode at a cabinet session scheduled for Tuesday and that, as far as the license being permanently revoked, 'it's not a done deal yet.'"

Additional reporting by Erin Renzas.

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