United States v. Slough (Blackwater guards indictment); forthcoming scholarship

1. United States v. Slough (D.D.C.  No. cr-08-360)

The indictment in this case, charging five Blackwater security guards with killing 14 unarmed civilians during an incident at Nisur Square in Baghdad in September 2007, is posted here: http://www.usdoj.gov/opa/documents/grandjury.pdf

An information filed against a sixth Blackwater guard, Jeremy Ridgeway, is posted here: http://www.usdoj.gov/opa/documents/us-v-ridgeway2.pdf

Ridgeway has pled guilty to certain charges.  His factual proffer is here: http://www.usdoj.gov/opa/documents/us-v-ridgeway.pdf

Details from DOJ’s press release appear below.  I have highlighted the passages describing DOJ’s jurisdictional theory.  In brief, the claim is that the contractors are subject to the Military Extraterritorial Jurisdiction Act (MEJA) because they were providing services in support of DOD’s mission, though their contract was with the State Department.  Whether MEJA applies in this circumstance no doubt will be the focus of considerable litigation going forward.

A 35-count indictment was unsealed today in the District of Columbia charging five Blackwater security guards with voluntary manslaughter, attempt to commit manslaughter, and weapons violations for their alleged roles in the Sept.16, 2007, shooting at Nisur Square in Baghdad, Iraq.    The defendants are charged with killing 14 unarmed civilians and wounding 20 other individuals.

In addition, a sixth Blackwater security guard pleaded guilty on Dec. 5, 2008, to charges of voluntary manslaughter and attempt to commit manslaughter for his role in the Sept. 16, 2007, shooting at Nisur Square. This guilty plea was also unsealed today.

The indictment, which was returned under seal on Dec. 4, 2008, charges Paul A. Slough, age 29, of Keller, Texas; Nicholas A. Slatten, age 24, of Sparta, Tennessee; Evan S. Liberty, age 26, of Rochester, New Hampshire; Dustin L. Heard, age 27, of Maryville, Tennessee; and Donald W. Ball, age 26, of West Valley City, Utah.   Each of the defendants is charged with 14 counts of voluntary manslaughter, 20 counts of attempt to commit manslaughter, and one count of using and discharging a firearm during and in relation to a crime of violence.

The defendants, who surrendered to federal authorities this morning in Utah, are scheduled to appear today in federal court in Salt Lake City at 1:30 pm (Mountain Time). If convicted of the charges against them, the defendants face a potential maximum sentence of ten years imprisonment for each count of manslaughter, seven years of imprisonment for each count of attempt to commit manslaughter, and a mandatory minimum imprisonment of 30 years for the firearms count.

The indictment represents the first prosecution under the Military Extraterritorial Jurisdiction Act (MEJA) to be filed against non-Defense Department private contractors, which was not possible prior to the 2004 amendments to MEJA that specifically expanded the reach of MEJA to non-Defense Department contractors who provide services “in support of the mission of the Department of Defense overseas.”

According to the indictment, the defendants were all employed by the Armed Forces outside the United States — that is, the defendants were employed as independent contractors and employees of Blackwater Worldwide, a contractor of the Department of State, to provide personal security services related to supporting the mission of the Department of Defense in the Republic of Iraq, within the meaning of MEJA.

All events alleged in the indictment took place outside of the jurisdiction of any particular State or district and within the venue of the U.S. District Court for the District of Columbia, as provided by 18 U.S.C. § 3238.

Counts 1-14 of the indictment charge the defendants with committing voluntary manslaughter by killing the following individuals: 1) Amed Haithem Ahmed Al Rubia’y, 2) Mahassin Mohssen Kadhum Al-Khazali, 3) Osama Fadhil Abbas, 4) Ali Mohammed Hafedh Abdul Razzaq, 5) Mohamed Abbas Mahmoud, 6) Qasim Mohamed Abbas Mahmoud, 7) Sa’adi Ali Abbas Alkarkh, 8) Mushtaq Karim Abd Al-Razzaq, 9) Ghaniyah Hassan Ali, 10) Ibrahim Abid Ayash, 11) Hamoud Sa’eed Abttan, 12) Uday Ismail Ibrahiem, 13) Mahdi Sahib Nasir, and 14) Ali Khalil Abdul Hussein.

Counts 15 through 34 of the indictment charge the defendants with attempting to commit manslaughter by attempting to kill the following 20 additional individuals who were wounded as a result of the shooting: 15) Majed Salman Abdel Kareem Al-Gharbawi; 16) Jennan Hafidh Abid al-Razzaq; 17) Yasmin Abdul Kidr Salhe; 18) Mohanad Wadhnah; 19) Haydar Ahmad Rabie Hussain Al-Khafaji; 20) Hassan Jaber Salman; 21) Farid Walid Hasoun Al-Kasab; 22) Abdul Amir Raheem Jihan Yasser; 23) Wisam Raheem Fliah Hasan Al-Miri; 24) Talib Mutluk Diwan; 25) Adel Jaber Sham’ma Al-Jadiri; 26) Nasir Hamzah Latif Al-Rikabi; 27) Mahdi Abid Khider Abbas Al-Faraji; 28) Abdul Wahab Abdul Qadar Al-Qalamchi; 29) Bara Sadoon Ismail Al-Ani; 30) Sami Hawa Hamud Al-Sabahin; 31) Fawziyyah Aliwi Hassoon; 32) Ali Hadi Naji Al-Rubaie; 33) Alah Majeed Sghair Zaidi; and 34) Jassim Mohammad Hashim.

Count 35 of the indictment charges the defendants with knowingly using and discharging firearms, that is, an SR-25 sniper rifle; machine guns (M-4 assault rifles and M-240 machine guns); and destructive devices (M-203 grenade launchers and grenades), during and in relation to a crime of violence for which each of them may be prosecuted in a court of the United States.

Also announced today was the unsealing of a guilty plea by Jeremy P. Ridgeway, age 35, of California.   On Dec. 5, 2008, Ridgeway pleaded guilty in the District of Columbia before U.S. District Judge Ricardo Urbina to a superseding criminal information charging him with voluntary manslaughter and attempt to commit manslaughter for his role in the September 16, 2007, shooting at Nisur Square.   A sentencing date has not been set by the court.

URL for the press release: Five Blackwater Employees Indicted on Manslaughter and Weapons Charges for Fatal Nisur Square Shooting in Iraq

2. Forthcoming Scholarship

“The Legal Regime Applicable to Use of Lethal Force When Operating Under a United Nations Security Council Chapter VII Mandate Authorising All Necessary Means”

Journal of Conflict and Security Law, Vol. 12, Issue 3, pp. 389-417, 2007

ROB MCLAUGHLIN, affiliation not provided to SSRN

This article examines the issue of authorisation to use of lethal force under a UN Security Council Chapter VII all necessary means resolution. Because UN-mandated or endorsed forces are regularly confronted by complex operational environments of mixed – often ambiguous – legal nature, it is essential that both the international and domestic legal implications and consequences of the use of lethal force are considered when planning and executing such operations. This is important for a number of reasons – not least among them being the legal protections and certainties that individual UN force members are entitled to expect are correctly reflected in their Rules of Engagement (RoE). Through an examination of the scope of SC Chapter VII powers generally – with particular emphasis on the human rights and IHL dimensions of the use of lethal force – the analysis arrives at the conclusion that there are two use of force paradigms governing UN Chapter VII all necessary means mandates. The first is the law enforcement paradigm, which essentially countenances the use of lethal force within the limitations of self-defence. The second is the armed conflict paradigm, where use of lethal force is permitted in wider circumstances. From this point, the article examines which paradigm is at play in a number of specific SC Chapter VII all necessary means mandates, noting that the default position appears to be the law enforcement paradigm. The analysis then concludes by arguing that, for individual UN force members, the consequences and implications of this characterisation are ultimately a domestic legal issue, using one particular domestic legal jurisdiction – Australia – as an example.

“Former Presidents and Executive Privilege”

LAURENT SACHAROFF, Temple University Beasley School of Law
Email: lsacharoff@yahoo.com

May a new President review the executive privilege assertions of a previous President and, if appropriate, overturn them? This question has received little scholarly attention but has become important as a new President Barack Obama is poised to take over the White House after eight years of aggressive assertions of executive privilege by President George W. Bush. I argue that a new President may review previous assertions of executive privilege and should disclose the previously withheld information if to do so would be in the public interest. This follows because executive privilege is not personal to any individual President but rather may only be asserted in the public interest. In addition, executive privilege arises from a President’s Article II powers; when a new President arrives, she enjoys plenary Article II powers, including the right to assert or waive executive privilege. I conclude that a new President not only can but should review previous assertions of executive privilege vigorously as a check that supplements the checks and balances of Congress, especially since as a practical matter Congress cannot peer behind the curtain to determine whether a particular President has abused the privilege to hide evidence of wrongdoing in his administration.

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