Immunity: Disastrous Decisions in 2007 Return to Haunt 2012

It was the 2007 Nisour Square Blackwater killings, not Wikileaks, that derailed plans for U.S. troops to stay on in Iraq.
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It Was the 2007 Nisour Square Blackwater Killings, Not Wikileaks, that Derailed Plans for U.S. Troops to Stay on in Iraq

Despite some creative speech making as Obama tries to take credit for "agreeing" to withdraw the last of America's occupying army from Iraq by the end of the year, Iraq's own version tells the true story: U.S. troops are leaving Iraq after more than eight years of war because Baghdad rejected American demands that the soldiers have immunity. Comments by Prime Minister Maliki make clear that it was Iraq who refused to let the military remain under American terms.

Why Iraq Said No

Why the Iraqis might not want to grant full immunity to every American soldier in Iraq come January 1, 2012 [they all do have immunity now, under the Bush-negotiated Status of Forces Agreement (SOFA) in place until midnight 12/31/2011] is not hard to guess, likely something to do with almost nine years of war and occupation, almost nine years of accidents and "collateral damage" and mistaken identities and all the sad rest. One incident singled out was detailed by the release of a diplomatic cable that alleged Iraqi civilians, including children, were killed in a 2006 raid by American troops rather than in an airstrike as the U.S. military initially reported. There is clearly far too much blood on American hands for Iraq to simply forgive and forget, what State Department spokesman Mark Toner described after the troop withdrawal announcement as the start of "a new chapter in our relationship" with Iraq.

But despite the long legacy of bloodshed which became frighteningly common place for many Iraqis, the refusal of immunity is more likely tied to one horrible, bad day in Nisour Square, where in 2007 Blackwater mercenaries hired by the State Department gunned down 14 Iraqis (some say it was 17) and wounded 20 more. Such killings occurred almost daily in Iraq, but what made this one tragically memorable is that despite almost overwhelming evidence that the victims were innocent, technicalities in U.S. law were used to prevent the shooters from being prosecuted. They walk free today. The system the U.S. wanted for its troops in 2012 did not work when tested. The process America promises in 2012 will protect Iraqis them failed them completely in 2007.

To begin, the American Embassy in Baghdad in 2007 produced a "spot report" claiming that Blackwater had come under fire from an "estimated 8-10 persons" who "fired from multiple nearby locations, with some aggressors dressed in civilian apparel and others in Iraqi Police uniforms. The team returned defensive fire." The report was on State Department Diplomatic Security letterhead, but was actually written by a Blackwater employee.

However, the U.S. Army's First Cavalry Division arrived at the Square moments after the shooting. They found no shell casings from AK-47s (the kind used by insurgents or the Iraqi police). The Cav concluded "It was obviously excessive. It was obviously wrong. The civilians that were fired upon, they didn't have any weapons to fire back. And none of the Iraqi police or any of the local security forces fired back at them." A later Iraqi government inquiry also concluded that Blackwater opened fire without provocation.

The Iraqi government revoked Blackwater's license to operate in Iraq the day after the massacre.

Blackwater, however, kept operating in Iraq without a license, under State Department contract, until 2009, two years later. Through its many name changes and corporate reshuffling, remnants of Blackwater continue to carry weapons in Iraq today.

Immediately following the shooting, State Department officials, for reasons never explained, offered limited immunity from U.S. Federal prosecution to the Blackwater mercs involved to compel them to make statements. At the time, State disagreed with other law enforcement officials that such actions might jeopardize prosecutions. That proved to be the money shot: the U.S. government obtained indictments against the contractors involved in the shooting. The case was then punted in court because it was not clear whether the indictments were based on immunized statements or other evidence. The D.C. Circuit court remanded the case, directing the government to show that it obtained sufficient evidence implicating the contractors prior to obtaining the immunized statements. Basically, since the State Department compelled the Blackwater guys to answer questions, the courts ultimately found they were denied their Fifth Amendment rights. Game over.

Immunity and the American Empire

Do soldiers garrisoning the American Empire in places like Germany, Korea and Japan have some form of immunity now? Yep, pretty much, they do. Here's how it works.

Virtually without exception, American military forces assigned abroad (at least those in place overtly) are covered under a country-specific Status of Forces Agreement, a SOFA. Each SOFA is negotiated between the U.S. and the "host" country, and covers things as mundane as the need for driving licenses and who pays local taxes to immunity from national laws. An American soldier covered by a SOFA typically cannot be held accountable under local law, or, if accountable, only under specified conditions and circumstances that typically offer the soldier U.S.-level rights protections. In many cases, s/he may be punished by the U.S. military for a crime, but not necessarily by the local government. The SOFA rules vary considerably from place to place, and can be as complex as any legal code. Most SOFAs are public documents available on the web, though some have a classified addendum.

A SOFA agreement is not unique to the U.S. military, though our overseas presence makes us the biggest user. Most NATO forces, as well as folks like Australian military abroad, exist under some sort of SOFA agreement. Though it can be misused and is often seen as unfair by host country people who are victims of soldier crimes and accidents, SOFA in its most benign form is not much more than a written agreement for the conditions under which a foreign military exists in another, sovereign, nation.

The theory behind all these rules is that the U.S. does not want to grant the host country the ability to arrest and prosecute its soldiers, especially for anything remotely in the line of duty. Accidents do happen, but the SOFA is supposed to prevent politically-charged arrests when, say, the host country party in power needs to look tough around election season.

Full immunity, what the U.S. wanted in Iraq, is at the extreme end of the SOFA scale: anything an American soldier would do in Iraq has a get-out-of-jail free card attached to it, whether it is a truly accidental weapon discharge or a violent rape of a young girl. The latter, on Okinawa in 1995, when three US service members gang raped a 12 year old, remains an impediment to changes in the U.S.-Japan SOFA even today, over fifteen years later, and even though the men were ultimately convicted in a local court and served sentences in a Japanese prison. A current alleged rape of a young woman by a soldier in Korea serves to highlight how contentious a SOFA agreement can be, even among friends. "I understand the U.S. wants to protect its soldiers from kangaroo courts overseas, but Koreans also have a right to safeguard their own citizens," said one Korean activist. "The perception among many here is that U.S. soldiers commit crimes and then run back to the protection of their base."

Back in Iraq

From the Iraqi point of view, the outcome of the Nisour Square Blackwater killings was pure evil. U.S. mercs murdered Iraqi civilians, and then the State Department and U.S. Courts, together, let them go unpunished. Nobody in Iraq, given the horrors perpetrated on them by the U.S., was ready to hear talk about "rights." The State Department thought they saved their own butts with a short-term solution of not taking responsibility for what their own guards did, but in the end likely contributed in large part to the deal breaker that will midwife the full withdrawal of U.S. troops from Iraq this New Year's Eve.

Meanwhile, the Army pull-out means that the State Department will need to hire 5000 mercenaries to protect itself in Iraq. Those mercs will be protected under existing international standards for diplomatic immunity, meaning they will be completely free from any prosecution under Iraqi law and unaffected by the existence or absence of any SOFA.

There it is, full circle. This damn war has just too much irony in it.

The views expressed here are solely those of the author in his private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the U.S. Government. The Department of State does not approve, endorse or authorize this article.

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