Out of Control

James Risen reported in the New York Times yesterday that Daniel Carroll, the project manager in Iraq for the private military firm then called Blackwater, threatened to kill two State Department investigators. The investigators, Jean C. Richter and Donald Thomas Jr., arrived in Iraq on August 1, 2007, and almost immediately uncovered numerous contract violations. When they confronted a State Department official at the U.S. Embassy in Baghdad, Acting Regional Security Officer Ricardo Colon, with this information, Colon ordered Richter and Thomas to conclude their investigation and leave Iraq. Colon wrote in a email to Washington, "Regrettably, the pattern of behavior exhibited by the team members [Richter and Thomas] reached a level that became unsustainably disruptive to day-to-day operations and created an unnecessarily hostile environment for a number of direct hire and contract personnel. That left us no recourse but to request that the team wrap up its work and depart Post at the earliest opportunity (Aug. 24)."

According to an internal memorandum written by Richter, a special agent in the State Department's Diplomatic Security Office assigned to the investigation, Carroll told Richter "that he could kill me at that very moment and no one could or would do anything about it as we were in Iraq." Thomas corroborated Richter's account of the conversation, which had begun with questions about the operations of a dining facility operated by Blackwater under its contract with the U.S. Government. Both Richter and Thomas reported to superiors that they regarded Carroll's comments as a serious threat. Carroll was never punished for his behavior in spite of the fact that State Department officials concluded that, in context, his remark met the legal definition of assault.

Although the investigation was cut short by Colon's order for Richter and Thomas to leave Iraq, Richter had apparently seen enough to raise a number of red flags that should have been noted by the Bush administration. In his memorandum to his superiors back in Washington, Richter wrote,

I was not only surprised by the unnerving remarks related to Mr. Carroll's perceived understanding of what fell under COM [chief of mission] and Department property, but also by the cavalier and unrestrained manner in which the Blackwater contractors felt they could respond to a USG [U.S. Government] official. To me, it was immediately apparent that the Blackwater contractors believed that they were the de facto authority and acted accordingly, in an alarming manner.

In addition, I witnessed Blackwater employees make disparaging remarks of superiority in reference to the FBI personnel presence in Iraq. These comments along with my COM Authority conversation sent a clear message that the Blackwater contractors saw themselves as "above the law" and actually believed that they "ran the place." Once again, this highlights conduct and performance issues that have been present throughout Blackwater's participation in the WPPS [Worldwide Personnel Protective Service] program.

Just weeks after Richter wrote these words, Blackwater contractors killed seventeen Iraqi civilians in a shooting spree in Baghdad's Nisour Square. An American investigator called the incident "the My Lai massacre of Iraq." To date, no one has been held accountable for the killings, although a federal prosecution against the contractor believed to have fired the first shots has recently been revived.

Finally, the Iraqi government's displeasure over the Nisour Square killings and the U.S. Government's response to them was one of the issues that prevented both the Bush and Obama administrations from reaching an agreement with Iraq on the basing of U.S. troops in the country beyond 2011. This, in turn, has been a factor in the ability of ISIS to take control of large portions of Iraq in recent days.

Viktor Bout: Friend or Foe?

On Wednesday, November 2, the notorious arms dealer Viktor Bout was convicted in a federal court in Manhattan on four counts of conspiracy in connection with the sale of weapons to Colombian rebels.  Bout, who once advised the Soviet military in Africa, bought weapons and a fleet of cargo planes from the former Soviet Union at the end of the Cold War and began trafficking arms to both governments and rebel forces in various conflicts around the world.  A British government report published in 2000 referred to him as "the Merchant of Death."  The movie Lord of War, which starred Nicholas Cage, was based on his exploits.

Here is the description of Bout in the second edition of Seeking Security in an Insecure World:

Bout is alleged to have sold over seven hundred surface-to-air missiles, military helicopters and airplanes, and thousands of guns to FARC, the Colombian paramilitary organization.  He has also sold weapons in Afghanistan and in various war zones in Africa.  At a Bangkok hotel in March 2008, Bout offered undercover agents of the U.S. Drug Enforcement Agency posing as FARC representatives a wide range of weapons, including land mines, unmanned aerial vehicles (UAVs), and C-4 explosives.  He was arrested at the conclusion of the meeting, which was taped, and, in August 2010, a Thai court ordered his extradition to stand trial in the United States.

In an op-ed published in the New York Times on Friday, Andrew Feinstein, author of The Shadow World:  Inside the Global Arms Trade (reviewed here by John Tirman), writes that in 2003 and 2004, Irbis Air--a company owned by Bout--flew supplies into Baghdad under contract to the U.S. Defense Department and KBR, a private contractor that was itself working for the U.S. Government.  Feinstein points out that "governments protect corrupt and dangerous arms dealers as long as they need them and then throw them behind bars when they are no longer useful."

Blackwater Bribes

On September 16, 2007, employees of the private military corporation Blackwater (now called Xe Services) shot and killed seventeen Iraqis in Baghdad. In a tragic episode, Blackwater employees began firing at Iraqis in response to gunfire that American officials say came from other members of their own unit. An FBI investigation determined that at least fourteen of the deaths involved unjustified killings. Last December, five Blackwater employees were charged with manslaughter in connection with the case; all pleaded not guilty. A sixth employee, also charged with manslaughter, pleaded guilty.

Today the New York Times reports that four former executives at Xe Services allege that the company approved $1 million for secret payments to Iraqi government officials in an effort to calm the furor over the 2007 killings. If payments of this nature were in fact made, they would constitute a violation of the Foreign Corrupt Practices Act, which bars the payment of bribes by American companies to foreign officials.

Xe Services was denied a license to operate in Iraq in January 2009, forcing the State Department to terminate its $1 billion security contract with the company.

Mann in Malabo

As expected, Simon Mann was extradited to Equatorial Guinea early Thursday morning shortly before his attorney filed a final appeal with Zimbabwe's Supreme Court. Mann is believed to be in the notorious Black Beach Prison in the capital city of Malabo.

Mann once told his attorney that if he were to be extradited to Equatorial Guinea, "I will be a dead man."

Missing Mann

A day after losing an appeal in his effort to avoid extradition to Equatorial Guinea, Simon Mann has disappeared from the maximum security prison in Zimbabwe where he was being held. There is concern that authorities in Zimbabwe may have flown Mann to Equatorial Guinea overnight without notifying his family or his attorney.

Mann in Zimbabwe

Simon Mann, the leader of a failed 2004 plot to use mercenaries to overthrow the corrupt government of Equatorial Guinea, has had his latest effort to avoid extradition to Equatorial Guinea denied by the High Court of Zimbabwe where he is being held. Mann, who will now appeal to Zimbabwe's Supreme Court, has claimed that he will likely be tortured if sent to Equatorial Guinea. His fear is very reasonable given the documented human rights abuses in Equatorial Guinea, but Zimbabwe's judiciary seems unlikely to place human rights considerations above politics.

The story of Mann's coup attempt was detailed in The Wonga Coup: Guns, Thugs and a Ruthless Determination to Create Mayhem in an Oil-Rich Corner of Africa by Adam Roberts.

A Private Contractor Talks

In today's Guardian, a British private security contractor writes about what it's like to work on a security detail in Baghdad.

The anonymous contractor, who describes the firm he works for as "basically a taxi service with guns," is part of a team that protects individuals moving through Iraq to various reconstruction projects.

After detailing his daily routine and telling what he makes (about £90,000 [$175,000], tax free, for eight months of work), he writes,

I will probably bin [trash] it fairly soon. I think the writing is on the wall for Baghdad. I think it is about to go ballistic. The Baghdad security plan is not going to work. Other people will no doubt stay because they want the money but I think there comes a time when you need to ask, is this sustainable?

You can find the entire account here.

"Into the Shadows"

"This may be a victory for the Blackwater legal team but it is a defeat for the principle of transparency. This means that the shadow army will slip even further into the shadows."

--Eugene Fidell, President of the National Institute of Military Justice, commenting on a federal judge's decision to end the lawsuit against Blackwater Security Consulting by moving the case into arbitration [via Reuters]

To Arbitration

A federal judge in North Carolina last week ordered the wrongful death lawsuit pending against Blackwater into binding arbitration.

The Virginian-Pilot reports:

After appealing unsuccessfully all the way to the Supreme Court, Blackwater now appears to have found another way to derail what promised to be a landmark lawsuit brought by the families of four security contractors killed in a convoy ambush in Fallujah, Iraq, in 2004.

This week, on orders of a federal judge, the dispute is scheduled to be taken up out of court by a three-man panel of arbitrators.

By steering the case into arbitration, Blackwater has shifted a legal showdown over issues of battlefield accountability and presidential authority into a non judicial arena where the proceedings occur behind closed doors and the outcome is confidential.

One of the three arbitrators is William Webster, a Reagan-era director of the FBI and CIA with personal and business ties to several Blackwater lawyers.

See the full story here.

Contractor Casualties

The New York Times reports today that at least 146 private contractors died in Iraq during the first quarter of 2007. The total death toll for contractors in Iraq is now at least 917; another 12,000 have been injured or wounded.

According to the Times, this is the first time that specific figures--based on claims filed with the Labor Department and on interviews with insurers and others--have been reported. Private military firms (PMFs) are, of course, not eager to talk about employee casualties. As the Times notes, "Companies that have lost workers in Iraq were generally unresponsive to questions about the numbers of deaths and the circumstances that led to casualties."

The extent of the U.S. military's dependence on PMFs in Iraq is staggering:

Nearly 300 companies from the United States and around the world supply workers who are a shadow force in Iraq almost as large as the uniformed military. About 126,000 men and women working for contractors serve alongside about 150,000 American troops, the Pentagon has reported. Never before has the United States gone to war with so many civilians on the battlefield doing jobs--armed guards, military trainers, translators, interrogators, cooks and maintenance workers--once done only by those in uniform.

In the Persian Gulf war of 1991, for example, only 9,200 contractors--mostly operating advanced weapons systems--served alongside 540,000 military personnel. But at the end of the cold war, Congress and the Pentagon were eager to seize on the so-called peace dividend and drastically scale back the standing Army. The Bush administration expanded the outsourcing strategy to unprecedented levels after the invasion of Iraq.

Rep. John P. Murtha (D-PA), chairman of the defense subcommittee of the House Appropriations Committee, has announced that he will schedule hearings on the use of PMFs this fall. Meanwhile, Rep. Jan Schakowsky (D-IL) and Rep. David Price (D-NC) (a former Duke University political science professor) have introduced legislation to require the government to provide information on private contractors in Iraq. (The House passed their legislation in the form of an amendment to the National Defense Authorization Act on Wednesday.) At present, "unless there is something specifically stated in the contract about accounting for personnel, there is no requirement for the U.S. government to track these numbers," as military spokesman Lt. Col. Joseph M. Yoswa notes.

Blackwater: "It's Classified"

Blackwater is suing a former employee for allegedly passing trade secrets to a startup private security firm based in Northern Virginia. More interesting than the late-night police raid in which a computer and some papers were seized from the defendant's home in Virginia Beach is this excerpt from a deposition related to the case in which Blackwater executive vice president William Matthews is being questioned about a former Blackwater employee:

Q: Okay. And what was Mr. Mullis' position when he became an employee for Blackwater?
A: He was the program manager for I think OGA programs.
Q: And OGA programs stands for what?
A: Other government agency.
Q: What does that include?
A: I don't know, or if I do know, it's classified.
Q: Okay. So was he working on classified, without giving me the content of any classified information, was Mr. Mullis working on classified projects at that time?
A: I don't know, or if I do know, it's classified.
Q: I've got to know which is which, I think. Do you not know or is it classified?
A: I don't know, or if I do know, it's classified.
Q: Okay. If that's your answer, we'll see where it goes. Okay. What were Mr. Mullis' duties and responsibilities as program manager for the OGA programs?
A: He would have overall responsibility and oversight for anything in his purview.
Q: And what was in his purview?
A: I don't know, or if I do know, it's classified.

Unbelievable.

It's time for Congress to assert control over private military firms. Blackwater's executives appear to believe that the normal rules don't apply to them.

"Going Blackwater"

Jeremy Scahill, author of Blackwater: The Rise of the World's Most Powerful Mercenary Army, testified before the House Appropriations Subcommittee on Defense on Thursday. The text of his remarks is available here.

In his testimony, Scahill noted that private contractors in Iraq sometimes make in a month what an active-duty soldier makes in year. This, of course, creates resentment and envy. It also creates an incentive for experienced military professionals to leave the armed forces of the United States in order to go to work for private contractors. Scahill stated, "There is slang in Iraq now for this jump. It is called 'Going Blackwater.' To put it bluntly, these private forces create a system where national duty is outbid by profits."

Read the entire statement.

Outsourcing in Iraq

Today the House Government Reform Committee heard testimony from family members of the four Blackwater contractors killed in Fallujah in 2004. Also testifying today were officials from the Department of Defense and representatives of the various private security firms (including Blackwater). Tonight the PBS Newshour ran a very good segment on the use of private military firms in Iraq. The transcript is available here.

Perhaps the most interesting point in Gwen Ifill's conversation with Robert Young Pelton, author of Licensed to Kill: Hired Guns in the War on Terror, and Doug Brooks, president of the International Peace Operations Association, was Brooks' admission that private security contractors face very little accountability for their actions in Iraq and that better means for ensuring accountability are needed.

Maybe. Or maybe we just shouldn't be relying so heavily on private military firms.

Blackwater: The Legal Front

In case you're wondering (as I was) what the latest is on the legal front with respect to the wrongful death lawsuit against Blackwater (noted in this post and this one), the answer comes from a story out of Raleigh, North Carolina:

Private security contractor Blackwater USA is seeking $10 million from the attorney representing the estates of four employees killed and mutilated in Iraq, arguing their families breached the security guards' contracts by suing the company for wrongful death.

Blackwater has also asked a federal court to move the dispute into arbitration, having failed so far in its ongoing efforts to have the lawsuit dismissed.

Arbitration is necessary "in order to safeguard both (Blackwater's) own confidential information as well as sensitive information implicating the interest of the United States at war," attorneys for Blackwater Security Consulting, a unit of Moyock-based Blackwater USA, wrote in a petition filed December 20.

Dan Callahan, a California-based attorney representing the families, called the claim "appalling."

"This is a shock-and-awe tactic," Callahan said Friday. Blackwater's attorneys declined to comment.

There's a business model at stake in this litigation--not one that should be encouraged in a democracy.

Blackwater, Again

Jeremy Scahill has an interesting op-ed in today's Los Angeles Times on the significance of Blackwater USA for the Bush administration's strategy in Iraq. He makes a number of points that were discussed here last fall (see October 30, November 5, and November 7), but he also notes that the idea for a Civilian Reserve Corps, which President Bush mentioned in his State of the Union address on Tuesday, was presented (in privatized form) two years ago by Blackwater USA owner Erik Prince.

Scahill writes:

Bush and his political allies are using taxpayer dollars to run an outsourcing laboratory. Iraq is its Frankenstein monster.

Already, private contractors constitute the second-largest "force" in Iraq. At last count, there were about 100,000 contractors in Iraq, of which 48,000 work as private soldiers, according to a Government Accountability Office report. These soldiers have operated with almost no oversight or effective legal constraints and are an undeclared expansion of the scope of the occupation. Many of these contractors make up to $1,000 a day, far more than active-duty soldiers. What's more, these forces are politically expedient, as contractor deaths go uncounted in the official toll.

Scahill's new book, Blackwater: The Rise of the Most Powerful Mercenary Firm in the World, is due out at the end of March.

More on Blackwater

Pepperdine's newspaper, the Graphic, ran a story this week about Ken Starr's representation of Blackwater. It's available online here.

Blackwater Back Story

The following may be either a gratuitous plug for Seeking Security in an Insecure World or it may be useful background information regarding the wrongful death suit against Blackwater USA. You can decide. Nonetheless, the following passage appears on pages 31 and 32 (in the chapter on conventional weapons and war) of the book that appears under my photo on the right:

We turn now to an issue that holds the possibility of transforming the ways wars are waged in the twenty-first century: the rise of privatized military firms (PMFs). Over the course of the past two decades, states--both rich and poor--have increasingly turned to private companies to provide services that were previously considered the responsibility of governments alone.

On March 30, 2004, four employees of Blackwater USA, a private security firm hired to protect the employees of one of the Defense Department’s many suppliers in Iraq, were ambushed as they drove through the city of Fallujah. They were shot, their bodies were dragged from their vehicle, mutilated and burned. Two were suspended grotesquely from a bridge. Photographs of the grisly scene were published or broadcast in less discreet media outlets around the world.

The incident in Fallujah drew attention to an issue that had, up to that point, attracted relatively little attention. From the very beginning of the war, privatized military firms were employed in Iraq to perform services traditionally considered the responsibility of uniformed military forces. In Iraq at the time of the Fallujah killings, at least twenty thousand private military contractors were employed to protect diplomats (including the head of the Coalition Provisional Authority, Paul Bremer), American and Iraqi businessmen, aid workers, and many others.

While the large number of private security contractors in Iraq may be surprising, the role of privatized military firms has been even more important in a number of other conflicts. During the 1990s, the government of Sierra Leone halted a bloody civil war and recaptured the country’s diamond mines from rebel forces by hiring Executive Outcomes, a PMF based in South Africa. Executive Outcomes used airpower, armored vehicles, and a small but highly trained force to accomplish what the government had been unable to do in years of fighting.

Privatized military firms are employed by governments for a variety of reasons, some that appear legitimate and some that may not be. First, PMFs allow the military to contract-out jobs that are temporary, that involve skills that are in short supply among the armed forces, or that can be performed more efficiently by contractors. Second, when private contractors sustain casualties, those casualties are not typically reported in the media and do not affect public opinion in democracies the way military casualties do. (The Pentagon does not include contractor casualties on its casualty lists in the Iraq War.) The use of PMFs, in other words, may serve to conceal the true human costs of military operations, but it may also permit defense establishments to keep fewer troops under arms, since shortfalls can be handled by calling in the private sector.

The rise of privatized military firms also means, however, that defense establishments may find themselves competing for the services of military professionals. In February of 2005, the Department of Defense approved a plan to offer financial incentives (up to $150,000 for a six-year reenlistment) to stem the flow of experienced Special Operations Forces personnel to private security companies. The bonuses were devised to deal with a situation in which Army Green Berets or Navy SEALs with twenty years' experience and making fifty thousand dollars in base pay could leave the military and go to work for a private security firm at salaries close to two hundred thousand dollars a year.

Perhaps more troublesome for the international system is the fact that an industry has emerged that gives those who can pay, whether governments or corporations--or even rebel organizations and drug traffickers (PMFs are reported to have trained drug dealers in Mexico and UNITA rebels in Angola in military tactics and the use of advanced weapons)--access to military force. In spite of certain advantages associated with contracting-out warfare, a tremendous potential for abuse exists as well.

For more on this subject, I recommend P. W. Singer's Corporate Warriors: The Rise of the Privatized Military Industry and Robert Mandel's Armies Without States: The Privatization of Security. Also, there is an excellent documentary from PBS entitled Private Warriors available in its entirety online.

In Re Blackwater Security Consulting

The following is the presentation of facts from Judge Duncan's opinion in the decision of the U.S. Court of Appeals for the Fourth Circuit to deny Blackwater's appeal seeking to gain federal court jurisdiction over the wrongful death suit filed in North Carolina courts by the families of the four Blackwater employees killed in Fallujah on March 30, 2004. The complete opinion is available here [.pdf file].

Stephen S. Helvenston, Mike R. Teague, Jerko Gerald Zovko, and Wesley J.K. Batalona (collectively, "decedents") entered into independent contractor service agreements with Blackwater Security Consulting, L.L.C., and Blackwater Lodge and Training Center, Inc., (collectively, "Blackwater") to provide services in support of Blackwater’s contracts with third parties in need of security or logistical support. Blackwater assigned the decedents to support its venture with Regency Hotel and Hospital Company ("Regency") to provide security to ESS Support Services Worldwide, Eurest Support Services (Cyprus) International, Ltd. ("ESS"). ESS had an agreement to provide catering, build, and design support to the defense contractor firm Kellogg, Brown & Root, which, in turn, had arranged with the United States Armed Forces to provide services in support of its operations in Iraq.

According to the complaint, at the time the decedents entered into the independent contractor service agreements on or about March 25, 2004, Blackwater represented that certain precautionary measures would be taken with respect to the performance of their security functions in Iraq. For example, they were told that each mission would be handled by a team of no fewer than six members, including a driver, navigator, and rear gunner, and would be performed in armored vehicles; they would have at least twenty-one days prior to the start of a mission to become familiar with the area and routes to be traveled; and they would have an opportunity to do a pre-trip inspection of their anticipated route.

Instead, the complaint alleges, Blackwater failed to provide the decedents with the armored vehicles, equipment, personnel, weapons, maps, and other information that it had promised, or with the necessary lead time in which to familiarize themselves with the area. On March 30, 2004, the decedents’ supervisor, Justin McQuown, directed them to escort three ESS flatbed trucks carrying food supplies to a United States Army base known as Camp Ridgeway. Lacking the necessary personnel and logistical support, the decedents ultimately became lost in the city of Fallujah. Armed insurgents ambushed the convoy; murdered the decedents; and beat, burned, and dismembered their remains. Two of the mutilated bodies were hung from a bridge.

Richard Nordan, in his capacity as administrator for the decedents’ estates, sued Blackwater and McQuown (hereinafter referred to collectively as "Blackwater") in the Superior Court of Wake County, North Carolina, alleging causes of action for wrongful death and fraud under North Carolina tort law. Blackwater removed Nordan’s action to federal district court. It asserted that 28 U.S.C. § 1441(a) (2000) permitted removal both because the Defense Base Act ("DBA"), 42 U.S.C. §§ 1651-1654 (2000), completely preempted Nordan’s state-law claims, and because the issues in the case presented unique federal interests sufficient to create a federal question. Once in federal court, Blackwater moved to dismiss the case, arguing that the district court lacked subject matter jurisdiction because the DBA covered Nordan’s claims and, therefore, that Nordan could litigate his claims only before the Department of Labor, which decides DBA claims in the first instance.

The district court first considered whether Blackwater had met its burden of establishing federal removal jurisdiction. Nordan v. Blackwater Sec. Consulting, 382 F.Supp.2d 801, 806 (E.D.N.C. 2005). In concluding that Blackwater had not met this burden, the district court rejected both of Blackwater’s asserted bases for removal jurisdiction. The court reasoned that, because the DBA grants the Secretary of Labor exclusive original jurisdiction over DBA claims, the statute does not completely preempt state-law claims; the hallmark of complete preemption, the district court concluded, is the presence of original jurisdiction over the matter in federal district court. Id. at 807-10 (citing Lontz v. Tharp, 413 F.3d 435, 442-43 (4th Cir. 2005)). Further, the court determined that Blackwater’s assertion of removal jurisdiction by way of a unique federal interest in the adjudication of Nordan’s claims "assume[d] the very conclusion which [the] court lack[ed] jurisdiction to reach, namely that the decedents in this case are covered as employees under the DBA." Id. at 813. Finding no basis for removal, the district court concluded that it lacked subject matter jurisdiction and, citing 28 U.S.C. § 1447(c) (2000), [fn. 1] determined that it must remand the case. Nordan, 382 F.Supp.2d at 813-14. Although Blackwater encouraged the district court to remedy its lack of jurisdiction by dismissing the case rather than remanding it, the district court further concluded that it lacked the authority to dismiss. The court reasoned that federal district courts play no role in the adjudication or review of DBA claims [fn. 2] and, therefore, that it had no jurisdiction to decide whether the DBA applied to Nordan’s claims. Id. at 814. The district court thus remanded the case to state court without reaching the merits of Blackwater’s motion to dismiss.

[fn. 1] Section 1447(c) provides: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. . . . The State court may thereupon proceed with such case."

[fn. 2] The district court incorrectly concluded that the federal district courts play no role in the adjudication of DBA claims. The federal district courts, followed by the federal courts of appeals and the United States Supreme Court, review DBA claims after they have been initially adjudicated in the Department of Labor. See 42 U.S.C. § 1653(b) (2000); see also Lee v. Boeing Co., Inc., 123 F.3d 801, 803-05 (4th Cir. 1997) (describing agency and judicial review of DBA claims).

Blackwater now seeks review, via both an ordinary appeal and a petition for a writ of mandamus. For the reasons that follow, we hold that we lack jurisdiction to hear the appeal and decline to issue a writ of mandamus. [fn. 3]

[fn. 3] Nordan moved to strike a portion of the record that Blackwater submitted on appeal. Because we dismiss the appeal and the petition for lackof jurisdiction, we deny this motion as moot.

Representing Blackwater

Last Monday, I blogged about the wrongful death suit against Blackwater USA. There I noted what had been reported in The Nation, that Pepperdine School of Law dean Ken Starr is representing Blackwater. To be more specific, Dean Starr is preparing a cert petition to the U.S. Supreme Court on behalf of Blackwater.

Whether it was my blog entry that prompted this or not I simply don't know, but on Friday I learned that a reporter for the Graphic, Pepperdine's campus newspaper, is working on a story about the Blackwater case and Dean Starr's role in it. Hopefully, Dean Starr will have something to say on the record about how he came to be the attorney of record for Blackwater. The story, if it makes it into print, should appear on Thursday.

The more I've thought about this, the more convinced I've become that Dean Starr's involvement is an indicator of the significance of this case for the private military industry. Because he has a full-time job as the dean of a law school with aspirations, Starr must be (and generally has been) very selective about the cases he takes. He specializes, by virtue of his experience as a federal circuit court judge and as the U.S. Solicitor General, in representation before the U.S. Supreme Court. But he has no obligation to represent a client like Blackwater, which has a business model pulled from the pages of Soldier of Fortune magazine. He would seem to have little to gain from doing so. After all, he's defending a firm that is making a lot of money off of the disaster that is our Iraq policy in a case brought by the families of some of its employees who were brutally killed by Iraqi insurgents allegedly as a consequence of the firm's cost-cutting measures.

What this suggests is that the case has great political ramifications and that it's not just Blackwater's business model that is at stake. What is at stake is Secretary of Defense Donald Rumsfeld's warfighting model.

Private contractors like Blackwater make it possible for the United States military to operate in Iraq with with a much smaller force than would be necessary if the U.S. were relying solely on the uniformed military and not on private security companies to do everything from building bases to protecting American diplomats and VIPs and transporting vital supplies. Take away the private contractors and the shortage of translators becomes even more acute, overstretched Army units are forced to do even more, and critical infrastructure in Iraq gets even less protection than it now has. Secretary Rumsfeld's views have certainly been undermined by reality on the ground in Iraq, but the day of reckoning would have come much sooner and would have been even more obvious had it not been for the heavy reliance on largely invisible (even if very costly) private military firms.

To put it very directly, I don't think Ken Starr is representing Blackwater because someone at Blackwater asked him to. I think he's doing it because someone in the Bush Administration asked him to. A major judgment against Blackwater in a wrongful death lawsuit would open the gates to a flood of litigation against private military contractors operating in Iraq. And with that, the possibility of withdrawing the military from Iraq while leaving private security companies as surrogates for the military would be eliminated. Not even the privatization of the war would remain as an option.

From Whitewater to Blackwater

In The Nation's web-only article entitled "From Whitewater to Blackwater," Jeremy Scahill and Garrett Ordower report that Ken Starr, dean of the Pepperdine School of Law, is representing Blackwater USA, one of the many private military firms (PMFs) (or private security companies) hired by the U.S. Department of Defense to carry out certain military operations in Iraq without direct governmental supervision. Blackwater is being sued by the families of its employees who were killed in Fallujah in 2004.

The lawsuit raises some interesting questions about the status of combatants who fight without the legal protections afforded to those in uniform. (The Bush Administration calls those who fight without uniforms or the direct ties to a state that such uniforms signify "unlawful combatants"--unless, of course, they work for the United States Government.) Basically, the issue is this: Can a company that lures away from the U.S. armed services some of their most valuable human assets and then turns around and contracts its services to the Department of Defense (with enormous profits guaranteed) benefit from the same protections against wrongful death suits that the military itself benefits from?

Dean Starr's work for Blackwater appears to be limited to "forum shopping"--that is, trying to convince the U.S. Supreme Court that this case belongs in the federal courts rather than in a state court, but nonetheless he's on the wrong side of a very significant issue.