MELISSA BLOCK, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
There are still many more questions than answers about Sunday's fatal shooting of Iraqi civilians in Baghdad by Blackwater security contractors. Yesterday, Iraq's interior ministry said it was revoking the license of the American firm. Blackwater says its employees acted in self-defense, when the U.S. Embassy convoy they were escorting came under attack. The State Department is investigating. And at a briefing today in Washington, spokesman Sean McCormack said it is unclear what laws may apply.
Mr. SEAN McCORMACK (Spokesman, U.S. Department of State): To boil it down very simply, there are a lot of crosscutting, jurisdictional as well as legal authorities here. And you would have to have precise set of facts in order to be able to determine the various applicable legal authorities.
BLOCK: Scott Silliman is a former Air Force judge advocate. He now heads Duke Law School's Center on Law, Ethics and National Security. And Professor Silliman, what U.S. laws might apply here?
Professor SCOTT SILLIMAN (Law, Duke Law School Center on Law, Ethics and National Security): Melissa, I think the law that probably would apply in this situation is the Military Extraterritorial Jurisdiction Act that was passed by Congress seven years ago. And it gives our federal courts jurisdiction over contractor personnel as long as their employment supports the mission of the Department of Defense overseas.
BLOCK: But they're not working for the Pentagon, they're working for the State Department.
Prof. SILLIMAN: No, but the law refers to basically U.S. contractors from any federal agency. So I think the Blackwater personnel are guarding our diplomats. They're guarding our senior officers. They're certainly working in furtherance to the DOD mission, so I think that law would apply. But again, they would have to be some indication that a crime was actually committed.
BLOCK: When that's being investigated, they would have to figure out what the circumstances were. And of course, Blackwater is saying this was self-defense. There was a firefight. We were firing back.
Prof. SILLIMAN: That's correct, Melissa. And of course, if the Blackwater employees were firing in self-defense, that would be a lawful act.
BLOCK: If the government were to carry out a prosecution under the Military Extraterritorial Jurisdiction Act, they would what? Have to send prosecutors over to Iraq to pursue the case?
Prof. SILLIMAN: Well, there are regulations that are in place that members of the military can assist in gathering evidence or actually arrest an individual and hold them. The trials will have to be back here in the federal district courts of the United States, notably in the District of Columbia. So it's not going to be an inexpensive prosecution because you would have to bring witnesses back to the United States for trial. But nonetheless, Congress knew what it was doing when it passed this act - to try to get criminal jurisdiction in our courts over American governmental personnel who commit offenses overseas.
BLOCK: There was also a move in Congress. Senator Lindsey Graham - who is also a reserve Air Force judge advocate - changed the wording in a defense spending bill that would make civilian contractors fall under the military legal system, the Uniform Code of Military Justice. How would that work?
Prof. SILLIMAN: Well, we're not sure how it's going to work. Senator Graham put that into the bill. It was passed. It became law. It was not something that the Pentagon asked for. And the president must still implement the regulations on how that works in what's called the Manual for Courts-Martial, and that's not been done yet. A lot of folks in the Pentagon are trying to figure out how much of the military code should be applicable to civilian contractors.
BLOCK: What about under Iraqi law? Can the Iraqis prosecute if indeed were found that a crime had been committed here?
Prof. SILLIMAN: Before the sovereign state of Iraq came into being, of course, we had the Coalition Provisional Authority that was in charge of affairs in Baghdad. And an order passed by the CPA in early 2004 exempted civilian contractors in Iraq from the jurisdiction of the Iraqi courts. I think the United States will argue that that still applies, although the Iraqis might try to come back and say, well, we're a sovereign nation now. We have jurisdiction.
BLOCK: And how would that get resolved?
Prof. SILLIMAN: It's going to be a diplomatic matter. The secretary of state obviously is going to tell the Iraqis that we will investigate if a crime has been committed. We have the vehicle to bring them to prosecution. I just do not see the United States government allowing U.S. nationals working for the U.S. government to go before the Iraqi courts because once you start down that path, then the next thing is they'll want jurisdiction over our military personnel as well. And that's just not about to happen.
BLOCK: Professor Scott Silliman is a former Air Force judge advocate. He heads Duke Law School's Center on Law, Ethics and National Security. Professor Silliman, thanks very much.
Prof. SILLIMAN: It's been a pleasure to be with you, Melissa.