Defenders deserve a legitimate defense in Blackwater case

Thursday, March 15, 2018
J.M. Phelps - Guest Columnist

J.M. Phelps ( of Blackwater are petitioning the Supreme Court in an effort to find the justice that has eluded them.

It was September 16, 2007, when a Blackwater security team – following a very massive explosion in Nisour Square, Baghdad – responded to assist another team in the protection of a U.S. diplomat. These teams were Raven 23 and Raven 4, respectively. While operations were being conducted to escort the official to safety, a vehicle-borne IED threat converged near the convoy. The vehicle was signaled multiple ways to stop, but did not. A firefight ensued and consequently, a number of Iraqis were injured and killed.

Regardless of how one feels about Blackwater's involvement in the Nisour Square incident, there are four men who deserve a just interpretation of the law, particularly the Military Extraterritorial Jurisdiction Act (MEJA).

Blackwater protecting diplomat in IraqWhile multiple other errors have been outlined in the case, "The Military Extraterritorial Jurisdiction Act is written specifically for people that are serving the Department of Defense (DoD)," says former Blackwater vice president and chief operating officer, Bill Mathews. He concludes, "…if you're not working directly for the DoD, the MEJA doesn't apply. In the Blackwater case, none of the teams were working for the Department of Defense. They were working for the Department of State, thus the MEJA by its own terms should not have applied."

Early in the case, jurisdiction was allowed where it did not apply when a defense motion concerning MEJA was ignored. Because there was no ruling from the court, an appeal by the defense was prevented. The appeal would have likely been favorable for the defendants had the judge actually made a responsible ruling. Is it unreasonable to wonder if this was done purposefully?

If MEJA stands as it appears to have been haphazardly interpreted and subsequently denied any further thought, there will be serious implications for contract personnel all over the world.  Former legal advisor to the National Security Council, Michael J. Edney, stated in his testimony that "[e]xpanding wide bands of Federal criminal law abroad to employees and contractors of all Federal agencies, including our intelligence community, could threaten vital national security operation if not done with exceptional care." The Supreme Court is currently considering whether they will take on the task of addressing this very important matter in Slough v. United States.

Blackwater 2While the Supreme Court ponders with the best interest of all those involved, countless other American patriots who believe in the rule of law have resolved MEJA does not apply to four members of the tactical support team (TST), Raven 23 – Dustin Heard, Evan Liberty, Paul Slough, and Nicholas Slatten.

Prior to the arrival of Blackwater in Iraq, security for diplomatic offices was provided by an Army unit. At this time, the "security team" would have been supporting the mission of the State Department, not the mission of the DoD. It's a boundless interpretation of the law to conclude Blackwater was supporting the mission of the DoD when they were contracted by the State Department to provide protective service details (PSDs) and TSTs specifically for a USAID (United States Agency for International Development) worker attending a meeting one mile north of Nisour Square. Thankfully, one of the PSDs escorted her immediately to their vehicles and safely back to the Green Zone.

According to a divided panel of the DC Circuit, these men were said to be "employed by the Armed Forces," even though they were contracted by the State Department to fulfill protective responsibilities to the State Department. The line was blurred, suggesting they were supporting the DoD's mission to rebuild Iraq while fulfilling their duties to the State Department by protecting a diplomat.

Drawing this sort of conclusion would expand the extraterritorial bounds of U.S. Law, and threaten peacekeeping, institution-building, and intelligence interests worldwide. It's illogical to conclude contractors for the State Department or employees of national intelligence agencies would be considered within the jurisdiction of this over-reaching interpretation of MEJA.

To imply this meeting supported the role of the DoD while members of Raven 23 were protecting a USAID official offers nothing but confusion about their MEJA status. If they were contracted by the DoD, there would be a clear indication of such, but there is not. According to the majority, "Blackwater without question employed the defendants to protect State Department personnel."

To extend the definition of those "employed by the Armed Forces" under MEJA would make every future non-Defense employee, contractor, or intelligence official an employee of the Armed Forces and subject to the same blurry interpretation of U.S. Domestic criminal law as the members of Raven 23.

Is this interpretation what Congress intended? I think not. If MEJA was allowed to extend to all federal employees, contractors, and intelligence operatives, where would those involved in counterintelligence, intelligence, or security details ever find protection abroad? Surely, we are not a country that relies on circumventing traditional laws in order to conduct our operations. That would be blatantly unconstitutional.

Blackwater was contracted by the State Department to solely provide diplomatic security in Iraq. The four men of Raven 23 still in prison today were not employed by the Armed Forces under MEJA. Clearly, they were performing their private security responsibilities to the State Department – not the DoD – at the time of the unfortunate incident that injured and killed a consistently disputed number of Iraqis.

According to hopeful family members, the case is moving forward with a petition for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the DC Circuit. Dustin Heard, Evan Liberty, Paul Slough, and Nicholas Slatten sit in prison awaiting the response from the Supreme Court of the United States of America – imprisoned by the same country whose State Department hired them to defend a U.S. diplomat.

J.M. Phelps is a Christian activist and journalist based in the Southeastern U.S.

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