Even as I was flying to Portland to speak at Powell's last night, the Blackwater mercenaries indicted in the September 2007 massacre at Baghdad's Nisour Square were surrendering to federal authorities in a Salt Lake City snowstorm. It was the first of what is certain to be a blizzard of legal maneuverings that ultimately will determine whether the Justice Department has a case against them.
The arguments are likely to get extremely arcane, ranging from the venue to the applicability of a civilian contractor law — the Military Extraterritorial Jurisdiction Act — that prosecutors are relying upon in the case. But it essentially gets down to a single question: whether Blackwater was above the law.
You'd think that would be a tough argument to make when women and children are among those slaughtered. But the government has an enormous burden ahead. The U.S. State Department, Blackwater's employer, granted the mercenaries legal immunity weeks before the FBI arrived to investigate. The FBI then had to reconstruct the crime scene in the middle of a war zone, while moving around Baghdad under the armed protection of private security contractors whose roles were similar — if not exactly the same — as the men accused of the crime. Meanwhile, the laws applying to tens of thousands of mercenaries in Iraq have never been spelled out — even to the contractors themselves.
Even before the indictments were unsealed, defense lawyers detailed the military records of the accused and blasted the government for having the audacity to challenge the battlefield actions of military veterans. Four of the indicted contractors completed combat tours in Iraq before joining Blackwater. The men surrendered in Utah in an effort to have the case removed to a conservative state.
Even then, the military experience of these men seemed limited for a company that bills itself as the most elite private security firm in the world. None had Special Operations experience. They were much the same as employees from hundreds of other companies that mushroomed in response to what became known as the "Iraq Bubble" — the soaring demand for security services as violence spiraled out of control.
Blackwater, of course, isn't under indictment here. The company has made roughly $1.5 billion off the war thus far.