Overseas Civilian Contractors

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Former Blackwater workers charged with murder mount challenge

By Tim McGlone The Virginian-Pilot
May 28, 2010  NORFOLK

Lawyers for two former Blackwater workers charged with murdering two Afghan civilians are mounting a constitutional challenge that has never been tested before the U.S. Supreme Court.

The government has had difficulties in the past gaining convictions against private contractors and military personnel for conduct in the Iraq and Afghanistan wars. This latest move is indicative of the challenges faced by both sides in the murder case against Christopher Drotleff and Justin Cannon.

Both defendants filed a flurry of motions over the past two weeks seeking to have the case thrown out and, among other things, demanding that the government turn over any exculpatory evidence it might have.

One joint motion calls for the dismissal of the indictment, arguing that Congress overstepped its authority when it passed a law, and several amendments, specifically targeting private contractors accused of crimes in war zones.

“Congress has attempted to expand federal criminal jurisdiction overseas in ways never imagined by the Founding Fathers,” Cannon’s attorneys wrote in a May 19 motion to dismiss.

The arguments has been tried before without success, but one federal judge in a similar case called the argument “rather strong.” Legal experts and a military analyst say the U.S. Supreme Court must eventually decide whether Congress went too far.

U.S. District Judge Robert G. Doumar will hear arguments in the case on July 9.

Drotleff, of Virginia Beach, and Cannon, of Texas, were employed by Blackwater (also known as Xe) subsidiary Paravant in May 2009. They were based at Camp Alamo in Kabul, training the Afghan National Army on the use of weapons.

On the night of May 5 last year, Drotleff, Cannon and two other Paravant workers were driving three Afghan nationals, who worked as interpreters and computer technicians for the Army and private contractors, to a taxi stand.

The new filing paints a different picture of the ensuing events than what prosecutors have alleged, adding new details supporting their self-defense claim:

Driving in two vehicles on Jalalabad Road, which the State Department describes as one of the most dangerous Afghan roads and one where travel is tightly restricted, the Paravant workers say they were concerned about the safety of the Afghans. Drotleff, armed with an Army-issued handgun, drove one vehicle with Cannon riding in back protecting the rear with an assault rifle.

A speeding car pulled up on them from the rear, passed Drotleff and then wedged in between them, striking the lead Paravant vehicle. That Paravant driver lost control and crashed into a wall, injuring everyone inside.

As Drotleff and Cannon tried to help the injured, the car that caused the accident, or another car just like it, began heading toward them “again at a high rate of speed,” according to the May 19 court filing.

“Fearing for their own safety and the safety of their fellow Paravant employees and the Afghans, the defendants fired their weapons at the approaching car,” the court filing states.

The approaching car suddenly turned down a side street and sped away. Drotleff and Cannon did not learn until later that they had struck two people in the car as well as a third bystander walking by.

The pedestrian, Rahib Mirza Mohammad, also known as Rahib Heleludin, was shot in the head. He slipped into a coma and died about a month later. His father told the Los Angeles Times that his son was walking home from prayers that evening.

The passenger in the car, Romal Mohammad Naiem, was killed and the driver, Fareed Haji Ahmad, also known as Sayd Kamal, injured. Witnesses told the Times that those two young men were driving home from work when they were fired upon for no reason. They were unarmed.

A federal grand jury here indicted Drotleff and Cannon in January on 13 charges of murder and illegal use of firearms. They remain jailed without bond pending trial on Sept. 14.

Prosecutors said Drotleff had been drinking that day and fired out of aggravation over an unintentional traffic accident. They also say the contractors left Camp Alamo without permission and took weapons without authorization.

But defense attorneys say they have reviewed statements – supplied by prosecutors, the defendants’ coworkers, investigators, interpreters and Afghan nationals – and none indicated that Drotleff or Cannon had been drinking or were intoxicated that day. They also cite a report by the Army’s lead investigator into the incident that said alcohol was not a factor.

The attorneys have also asked the judge in the case to prohibit prosecutors from introducing evidence showing that the defendants were fired or that they had left the base and carried weapons without permission, calling such information irrelevant.

A larger challenge looming in the case is whether the charges against the defendants are legal under the U.S. Constitution.

Drotleff and Cannon were charged under a relatively new section of law called the Military Extraterritorial Jurisdiction Act, passed by Congress in 2000 and amended several times since. The act was meant to close loopholes that prevented the government from charging non-military civilians with crimes committed outside the territorial jurisdiction of the United States, such as in Iraq and Afghanistan.

The act “goes well beyond the enumerated powers of Congress,” the attorneys argue. Congress is limited, they said, to punishing for offenses involving navigation, trade, diplomacy, war, terrorism, torture or piracy that occur outside traditional U.S. borders. None of those apply here, they say, not even war, because the middle of Kabul is not a traditional battlefield.

The same arguments failed in similar criminal cases against Iraq and Afghanistan contractors, currently pending in Louisiana and Washington. The Washington case, the now-notorious 2007 Nisoor Square mass killings in Baghdad by five Blackwater contractors, was ultimately dismissed for other reasons.

Columbia Law School professor Scott Horton, who consulted with Congress on some of the MEJA amendments, said the Founding Fathers would have considered it “preposterous” to prosecute anyone outside the United States during the American Revolution, but that doesn’t mean they didn’t give Congress the authority to change the law.

“In the course of the 20th Century, the U.S. began getting assertive,” he said. “We would say there were certain types of crimes that affected U.S. interests. MEJA was designed to deal with those cases.”

The alternative, he wondered, is to let the foreign nations prosecute the contractors, which would create obvious problems of fairness.

Horton said challenges to MEJA are only now making their way through the federal appeals courts.

Eugene Fidell, a Yale law professor and president of the National Institute of Military Justice at American University, said he too has been following the issue and sees a likely Supreme Court challenge, though not one that would likely favor Drotleff and Cannon.

“To say that Congress lacks authority I think is a very tough row to hoe,” he said. “Congress does make a number of crimes extraterritorial for good reason. Would people really prefer to be prosecuted by an Afghan court?”

David Isenberg, a military analyst and author of a book on private contractors in Iraq, sees it differently, as the federal government “attempting to fit square pegs in round holes.” Still, “no one can say what the Supreme Court is going to say or do,” he said.  Original Story here

May 28, 2010 Posted by | Blackwater, Civilian Contractors | , , , , , | Leave a comment