Foreign Mercenaries Losing Their Immunity in Iraq

NEW YORK, Dec 5 -- The virtually total impunity from prosecution accorded to private contractors in Iraq may be coming to an end.

Under the new Status of Forces Agreement (SOFA) approved by the Iraqi government last week, U.S. contractors will be subject to Iraqi law for the first time. Moreover, some observers believe that Iraq may be able to hold them legally accountable for offences allegedly committed even before the SOFA was approved.

And, at the other end of the U.S-Iraq equation, after months of seeming inactivity -- marked by continuing doubts about whether the U.S. even has legal jurisdiction over the contractors -- the U.S. Department of Justice (DOJ) may soon bring charges against three to six contractor-employed security guards for their involvement in the shooting of 17 Iraqi civilians in Baghdad in September 2007.

The guards are employees of Blackwater Worldwide, the largest and most high-profile player in the massive army of private contractors employed by the U.S. in Iraq

The U.S. media is reporting that charges against the Blackwater employees may be based on a 1980s-era anti-drug law, even though drugs were not involved in the Blackwater shooting. The Anti-Drug Abuse Act of 1988, passed to help stem the nation's crack epidemic, calls for 30-year prison terms for using machine guns to commit violent crimes of any kind, even where drugs are not involved. Prosecutors are reportedly reviewing draft indictments for manslaughter and assault.

The Blackwater guards -- decorated military veterans hired to protect U.S. diplomats overseas -- were responding to a car bombing when a shooting erupted at a crowded Baghdad intersection. The guards allegedly opened fire with government-issued machine guns and turret guns mounted on their armored trucks. Blackwater claims its convoy was ambushed by insurgents. Eyewitnesses say the guards were unprovoked.

But prosecuting the guards will be an uphill battle because it remains unclear whether contractors can be charged in the U.S., or anywhere, for crimes committed overseas. They would need to be charged under a law covering soldiers and military contractors, but Blackwater works for the State Department, not the military. Thus it remains unclear whether that law applies to its guards.

Making the case even more complicated is the promise of immunity the State Department reportedly extended to several Blackwater guards in exchange for their sworn statements shortly after the shooting. Prosecutors cannot use these statements to support their case.

Blackwater and other security contractors might well also face prosecution by Iraqi authorities for acts committed during an earlier time when they supposedly had immunity from Iraqi law. In June of 2004, the Coalition Provisional Authority that ran Iraq after the U.S. invasion in 2003 granted contractors immunity from prosecution. But the new U.S.-Iraq SOFA does not explicitly prevent Iraqi officials from bringing criminal charges retroactively.

The Blackwater shooting of Iraqi civilians has sparked interest among Democrats in Congress to enact tougher rules for overseas security contractors. The most comprehensive legislation was introduced last year by Barack Obama, then an Illinois Democratic Senator and now president-elect.

The Obama measure would have extended the jurisdiction of U.S. law to cover contractors in Iraq, placed the FBI in charge of investigating their crimes, and required the Defense Department to reveal the size and makeup of its security contractor force and define the boundaries of its activities.

Republicans in Congress, along with the White House, have consistently opposed such legislation.

The Congressional Budget Office estimates that more than 10 billion dollars has been spent on security contractors thus far in 2008 and estimated that about 25,000-30,000 employees of security firms were in Iraq as of early this year. It estimates that, if spending for contractors continues at about the current rate, 100 billion dollars will have been paid to military contractors for operations in Iraq.