Politics & Policy

Waxman Blackwater Grandstanding

Make the contractor accountable, instead.

When Erik Prince, founder and CEO of BlackwaterUSA, was called to testify before the House Oversight and Government Reform committee Tuesday, it was not surprising he defended his company’s actions.

But Prince also had to work to correct misconceptions about Blackwater and other military contractors in Iraq. Prince again insisted that Blackwater is accountable to many codes, regulations and international treaties, including the Uniform Code of Military Justice (UCMJ). Publicly, the controversial North Carolina based company has been consistently outspoken about its adherence to these various codes.

Which is not to say that there aren’t legitimate inquiries that need to be made into contractor behavior; however, Blackwater can’t be expected to legally prosecute their own employees.

As such, House Oversight and Government Reform Committee Chairman Henry Waxman’s hearing turned into a mockery — attempting to lambaste Blackwater for the federal government’s own failure to provide clear legal avenues to hold contractors accountable.

Such was the case when Waxman assaulted Prince about a Blackwater guard who drunkenly shot and killed one of Iraqi Vice President Adel Abdul-Mahdi’s security guards.

Blackwater fired the employee and flew him back to the United States, then paid the guard’s family. Later, email conversations between Blackwater and the State Department were made public highlighting a discussion between Blackwater and the State Department over the size of the payment to the murdered guard’s family.

“It’s hard to read these e-mails,” Waxman commented, “and not come to the conclusion that the State Department is acting as Blackwater’s enabler.” However, if indeed the State Department is covering for Blackwater, it’s hard to see how Erik Prince should be taken to task for that.

Aside from firing and fining the individual employee as Blackwater did, Prince noted “We as a private organization can’t do anything more. We can’t flog him, we can’t incarcerate him,” said Prince. He further said he would be “happy” if there is further investigation into the Blackwater contractor and his crime.

To that end, Prince is actively encouraging further clarification of contractor rules in Iraq. The September 16 incident where Blackwater contractors killed eleven Iraqis brings up a question of legal jurisdiction that needs resolving: specifically, whether or not contractors operating with the State Department are subject to the same rules as military contractors performing security operations for the Defense Department.

Though U.S. attorneys and judge advocate generals have speculated that a legal argument could be made that military jurisdiction applies, they have been hesitant to bring cases against contractors working for the State Department using applicable authority granted under the UCMJ and the Military Extraterritorial Jurisdiction Act (MEJA). MEJA was enacted in 2000, “designed to extend Federal criminal jurisdiction over civilians accompanying the Armed Forces who commit serious offenses overseas when a host country does not exercise criminal jurisdiction.”

In his testimony Tuesday, Prince said he supports House Resolution 2740, sponsored by Rep. David Price (D., N.C.). The resolution would clarify MEJA on issues of jurisdiction regarding the State Department by revising the act to include not just contractors accompanying U.S. Armed Forces but all contractors “employed under a contract (or subcontract at any tier) awarded by any department or agency of the United States, where the work under such contract is carried out in a region outside the United States in which the Armed Forces are conducting a contingency operation.”

This legislation would resolve nearly all questions surrounding contractor accountability. Though Senator Lindsey Graham has already introduced legislation making contractors subject to the UCMJ, it isn’t entirely clear whether Graham’s legislation encompasses military contractors working with the State Department. Further, military justice can be arcane and could raise further legal quandaries if applied to private citizens. (To give an idea of its technicality, under the UCMJ contractors could be prosecuted for not having regulation haircuts and talking back to superior officers.)

Holding contractors accountable under MEJA is clearly the way to go, and simply passing H.R. 2740 would resolve nearly all questions regarding military contractor accountability. It would provide a clear path for military and civilian authorities to prosecute contractor wrongdoing.

But rather than substantively discussing these issues and what Congress can tangibly do about it, Waxman instead baselessly accused Blackwater of war profiteering because of the over a billion dollars in contracts Blackwater’s received from the U.S. government, “over half [of Blackwater’s contracts] were awarded without full and open competition.”

This is simply not true — Blackwater’s services are on the GSA schedule which “establishes long-term government-wide contracts with firms to provide authorized ordering offices with access to millions of services and products that they may order from GSA Schedule contractors.” Further, there are only a select few private military companies that have the capabilities to perform complex security missions in an environment as challenging in Iraq. There is not a robust market of companies bidding on these contracts. (Though it’s worth noting Blackwater is one of three contractors employed for security missions with the State Department, and there might be upwards of hundreds working for the Defense Department.)

To the extent there are small companies bidding on these contracts — it’s a problem. When I interviewed Prince for The Weekly Standard last year, he bemoaned the entrance of “two guys and a laptop” companies into the government contracting market, start-ups that don’t have the training and equipment and are particularly unqualified to carry out security missions.

Waxman also blindsided Blackwater at the hearing by publicly releasing without notice a 15-page memo detailing charges against the company just prior to the hearing. Congress Daily’s Daniel Friedman reported that Republicans on the committee felt “sandbagged” by the maneuver, which cast the tone of the hearing in an unnecessarily negative light from the outset. Obviously, this kind of tactic is hardly fair to Blackwater either.

The ongoing investigation into Blackwater and its conduct in Iraq should proceed. But until the facts are determined, the most positive thing Congress can do is ensure military contractors may easily and reliably be held accountable under MEJA by passing H.R. 2470.

In the meantime, Waxman’s shameless congressional grandstanding at Tuesday’s hearing should be vigorously condemned as unfairly polluting the debate around private contractors.

— Mark Hemingway is an NRO staff reporter.

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