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Whoever said America was a country of laws may not have anticipated the way Americans would work in Iraq. Iraqi rules do not apply to contractors like Blackwater USA, and in some cases American law may not either.
Yesterday, the House voted to change that, saying U.S. criminal statutes should cover contractors. It's still not clear, though, what if any laws apply to past cases in which Blackwater allegedly killed civilians.
NPR's Dina Temple-Raston reports.
DINA TEMPLE-RASTON: Iraq's national security advisor, Muwafaq al-Rubaie, was in Washington this week and was asked about Blackwater USA and the problem of holding security contractors accountable for what they do in his country.
Mr. MUWAFAQ AL-RUBAIE (National Security Adviser, Iraq): Who are they accountable, these? If they are Americans, okay, they are accountable in America, and they will be tried in America. But if they are South African working for Blackwater or they are Koreans, which law they are under?
TEMPLE-RASTON: The company that has come to personify that problem is Blackwater USA. And the man most immediately in the legal crosshairs is a young former Army paratrooper named Andrew Moonen. He was working for Blackwater USA when he allegedly shot and killed a bodyguard of one of the Iraqi vice presidents. Under normal conditions, he could be tried in a local court. But the Coalition Provisional Authority, in the early days of the war, passed an order that protects civilian contractors like Moonen from prosecution in Iraqi courts.
Eugene Fidel is a military law expert.
Mr. EUGENE FIDEL (Military Law Expert): It may be that he falls nowhere. It may be that he falls between the stools. And the reason is, we seem to have an understanding with the Iraqis, at least so far, that our personnel would not be subject to Iraqi criminal law.
TEMPLE-RASTON: Since the shooting episode came to light, American officials have been exploring other legal avenues to hold them accountable. The problem has been that none of the alternatives available quite fits the Moonen situation. U.S. attorneys and judge advocates general have said that a legal argument could be made that military jurisdiction applies. Moonen's lawyer could argue that his client isn't subject to military law because he was working for the State Department. Experts also worry about trying a civilian in a military court.
Mr. FIDEL: In the 1950s, there were a number of instances where civilians of one kind or another were prosecuted in courts martial, and the Supreme Court had a lot of trouble with that.
TEMPLE-RASTON: The most famous case is one called Reid vs. Covert. In that case, a military tribunal convicted Mrs. Covert of murdering her husband, who is in the military. The Supreme Court held that civilian wives and soldiers may not be tried by a military court. The concern in the Moonen case is that prosecutors would go through a military trial only to have the conviction overturned for the very same reason.
Jordan Paust is a former Army judge advocate.
Mr. JORDAN PAUST (Former Army Judge Advocate): We're just starting to see a lot of these problems concerning jurisdiction - who has jurisdiction to prosecute, especially if the Iraqis have lost control of their sovereignty.
TEMPLE-RASTON: Because of all these complications, experts said the likeliest scenario is that Moonen will end up in a U.S. federal court. His case has been referred to the U.S. attorney in Seattle, where Moonen now lives. Legal experts say the U.S. attorney is likely to try to get an indictment under the military extra-territorial jurisdiction act. Congress passed that law in 2000 so the U.S. could prosecute Defense Department employees for crimes committed abroad. Legal expert Eugene Fidel says even that is a risk because...
Mr. FIDEL: None of the options seemed to be foursquare, head on covering him.
TEMPLE-RASTON: The Moonen case is just the beginning. The FBI has dispatched a team to Iraq to investigate a September shootout involving Blackwater contractors. In that case, at least 11 Iraqis were killed. The Iraqi government has said it wants the people involved in the September episode to be tried in an Iraqi court.
Dina Temple-Raston, NPR News, Washington.
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