Law's unclear if U.S. can prosecute Blackwater guards

McClatchy NewspapersDecember 9, 2008 

WASHINGTON — The indictment of five Blackwater security guards, unsealed this week, is pinned to the Military Extraterritorial Jurisdiction Act. The question now becomes: does the law apply?

The answer: it's debatable, and depends upon what the meaning of the word "support" is. Here's some legislative history to explain why.

As is now commonly known, Congress originally passed the Military Extraterritorial Jurisdiction Act in 2000. The law extended federal jurisdiction to felonious acts committed outside of the United States. It was limited to members of the military or those "employed by or accompanying the armed forces." This covered Pentagon contractors.

In 2004, informed by the ugly goings-on in Iraq, Congress amended MEJA to cover employees and contractors from other federal agencies. A further 2005 amendment folded in employment by "any provisional authority." The law applied in both cases, though, "only to the extent such employment relates to supporting the mission of the Department of Defense."

The 2004 provision popped up as an amendment to a defense authorization bill. There was no conference report language spelling out what this means, and the Senate debate was perfunctory at best.

Republican Sen. Jeff Sessions of Alabama, the author of the 2004 amendment and of the original MEJA, said simply on the Senate floor June 16, 2004, that "this amendment would give the Justice Department authority to prosecute civilian contractors employed not only by the Department of Defense but by any federal agency that is supporting the American military mission overseas."

There was no further clarification, though, about what "supporting" means. A Congressional Research Service report from September 2008 noted that a dozen people had been charged under MEJA since 2000, all military; it does not answer the question of what "supporting" means.

And, when the Defense Department published in the Federal Register on Feb. 22, 2006, the regulations that undergird the law, officials again simply repeated the phrase "supporting the mission of the Department of Defense overseas" without further defining the relevant terms. The U.S. Code provides no contextual help: the only place the phrase "supporting the mission" appears is in the Military Extraterritorial Jurisdiction Act itself.

The Blackwater contract was with the State Department. The five indicted Blackwater guards were part of a Tactical Response Team called Raven 23; the killings in question occurred when Raven 23 responded to the detonation of an improvised explosive device near another Blackwater team guarding, apparently, a State Department employee.

Who was this employee, and what was his or her function? Would protecting, say, an agricultural attache amount to "supporting the mission" of the Pentagon?

That could be one way of defining whether th act really applies. More broadly th question could be: five years after the U.S. invasion of Iraq, is the ongoing occupation primarily a military or a diplomatic operation and is the State Department subordinate to the Defense Department in the Iraq venture?

Iraq is a combined operation, in which State supports DoD and DoD supports State, each intertwined in service to a unified U.S. objective. So maybe that's the answer, and the Blackwater guards lose on the jurisdiction issue.

Mike Doyle writes McClatchy's Suits and Sentences blog, where this first appeared.

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