Law

Bringing the Law to Justice:

With regard to the evil treatment of civilians in the warzone by the media and academia -- we were talking about the HTTs, but also about any other contractors -- Joe remarked in a recent comment:

It may help that we actually have a working mechanism to hold civilians criminally liable when they step the wrong way - I remember from 2004-05 the nightmare of trying to do that, and being filled with the wish that whoever couldn't be punished, should go.

That's more or less the opinion of Deborah Colson on the upcoming Blackwater Worldwide case. She says, "Contractors perform necessary and often courageous service, but letting even a few act with impunity stains our reputation and undermines the credibility of our efforts."

That's fair enough. Discipline is the soul of the army, and that goes for those who carry "Geneva Conventions Accompanying Forces" IDs like I do, too.

There is a trend within American law, however, that I find absolutely disgusting. It arises from the concept that the process is meant to be adversarial, and the prosecutor should therefore attempt to bring the maximum penalty the law permits as their opening position. This means "the maximum penalty we can find any possible way to imagine the law considering."

Among the hurdles the government now faces:

_Whether U.S. law permits civilian contractors to be charged in the United States for crimes committed overseas. Prosecutors must convince a judge that the guards can be charged under a law targeting soldiers and military contractors — even though Blackwater works for the State Department.

Prosecutors are expected to argue that, if not for Blackwater, military personnel would provide diplomatic security. In that way, Blackwater could be seen as supporting the Defense Department's mission.

_Convincing a jury that a drug law intended to crack down on assault weapons should be used to pump up potential penalties against the guards. The five men are expected to be charged with assault or manslaughter under a provision in the 1988 Anti-Drug Abuse Act that requires 30-year prison terms for using machine guns to commit violent crimes, whether drug-related or not.

I couldn't disagree with this kind of thing any more than I do. The state should advocate for justice: for a just application of the law. Attempting to find innovative ways to put people in jail far longer than is just should be a form of prosecutorial misconduct. In my opinion, it should be itself a crime.

Look at the position we're in here:

1) The prosecutors intend to claim that the law -- which specifically limited itself to DOD employees -- should apply to State Department employees because 'they are supporting the DOD mission' by performing a function that the military would otherwise have to perform.

OK. My job includes arranging meetings between US government employees and tribal figures in Iraq in order to address and avoid problems. That's obviously a diplomatic function: the military's only doing it because the State Department lacks the personnel and resources to devote FSOs to it. Therefore: if I'm arrested on any future charge under this law, I'll just claim that the law shouldn't apply to me because 'I'm really performing a service that supports the State Department's mission.' Right?

No, that's obviously not right. I work for DOD; the law was written for me. Blackwater's guys work for the diplomats; the law specifically doesn't apply to them. Furthermore, the State Department knows it could get military escorts and doesn't want them. It feels that would make it subordinate to the military, rather than equal and independent. Thus, if they weren't using contractors, they'd have to provide State Department GS-series guards. Blackwater isn't supporting 'the military mission,' but State's desire to remain independent of the military.

The law was written this way for exactly this reason. Now the government wants to put the law into force in a way precisely contrary to the reason the law was composed.

If the government won't play by its own rules -- and the law are its own rules -- why should anyone trust them with the power to enforce the law?

2) Does the prosecution seriously intend to argue that a law designed to punish the use of illegal machineguns inside America should apply to the use of formally licensed machineguns in a warzone, in the contracted service of our State Department?

If they do, do they understand that they have just raised the penalty for any crime involving those machineguns to a minimum 30 year sentence? Let's say you shoot someone you believed was an insurgent, but the jury decides (based on 'witness statements' from Iraqis who hate you, and who aren't available to be cross-examined in court) that you were wrong to believe that. So you've committed something like manslaughter (in a firefight, in a warzone). 30 years, minimum.

Both propositions are totally unreasonable. A law composed for illegal machineguns in a peaceful area shouldn't apply to lawfully-carried machineguns employed in the licensed service of the US government itself. Likewise, while mistakes should be prosecuted, 30 years is a massive sentence to set as the minimum for any possible 'violent crime' given the difficulties specific to prosecuting people based on unavailable witnesses, for actions taken during the confusion of a firefight, in a warzone.

I fully support the application of law to the battlefield. More than that, though, I want to see justice done. That should be the aim of the law. I know this is the system we have, but I don't like it one bit.