Center on the Administration of Criminal Law files amicus brief in Blackwater case

Law School's Center on the Administration of Criminal Law files amicus brief in Blackwater case

January 28, 2009

The Law School's Center on the Administration of Criminal Law filed an amicus curiae brief on January 27 in the United States District Court for the District of Columbia. The brief supports the U.S. government’s prosecution of five former Blackwater Worldwide security guards who are charged with voluntary manslaughter and other crimes stemming from their involvement in a 2007 shooting incident in a Baghdad square in which they are accused of killing 14 unarmed civilians.

The brief disputes the defendants’ argument that the relevant version of the Military Extraterritorial Jurisdiction Act (MEJA) does not apply to them. MEJA confers federal jurisdiction over contractors of any federal agency who commit serious crimes overseas to the extent their employment relates to supporting the mission of the Department of Defense overseas. Defendants contend that they are not covered by this statute and cannot be prosecuted for any crimes they allegedly committed because they were employed by the Department of State, which they say has its own distinct mission.

“The case presents an important issue of first impression regarding the scope of federal prosecutors’ extra-territorial power over private contractors who operate abroad in war zones,” said Anthony Barkow, who is the center’s executive director and who was a federal prosecutor for 12 years. “Congress intended private contractors who commit crimes while supporting the mission of the Department of Defense to be subject to United States criminal jurisdiction. The center seeks to preserve the government’s ability to exercise its prosecutorial power to the full extent contemplated and permitted by Congress in this context.”

The amicus brief argues that it cannot be seriously disputed that the mission of the U.S. military in Iraq is to establish and maintain a secure environment and to promote relief and reconstruction efforts and that defendants were employed to support this mission by protecting U.S. embassy personnel, who themselves advance the U.S. military mission in Iraq. Further, MEJA’s enactment and legislative history confirm Congress’ intent to confer jurisdiction over contractors like defendants. According to the brief, there is no possibility that defendants were surprised to learn that firing upon and killing unarmed civilians is potentially criminal and that they could be prosecuted in U.S. courts when they were immune from prosecution in Iraqi courts, and thus they had sufficient advance notice that they would be prosecuted for such conduct.

The brief is the first the center has filed on behalf of the government. The center’s litigation practice concentrates on cases in which the exercise of prosecutorial discretion raises significant substantive legal issues. In addition to filing briefs on behalf of defendants when prosecutors act over-aggressively, the center also defends exercises of prosecutorial or governmental discretion from unfounded criticism, when appropriate, where the discretionary decisions comported with applicable law and standard practices and are consistent with law enforcement priorities.

Barkow prepared the brief in partnership with the law firm of Akin Gump Strauss Hauer & Feld.