by Jeremy Scahill

Last week in Currituck County, N.C., Superior Court Judge Russell Duke presided over the final step in securing the first criminal conviction stemming from the deadly actions of Blackwater Worldwide, the Bush administration's favorite mercenary company. Lest you think you missed some earth-shifting, breaking news, hold on a moment. The "criminals" in question were not the armed thugs who gunned down 17 Iraqi civilians and wounded more than 20 others in Baghdad's Nisour Square last September. They were seven nonviolent activists who had the audacity to stage a demonstration at the gates of Blackwater's 7,000-acre private military base in North Carolina to protest the actions of mercenaries acting with impunity -- and apparent immunity -- in their names and those of every American.

The arrest of the activists and the subsequent five days they spent locked up in jail is more punishment than any Blackwater mercenaries have received for their deadly actions against Iraqi civilians. "The courts pretend that adherence to the law is what makes for an orderly and peaceable world," said Steve Baggarly, one of the protest organizers. "In fact, U.S. law and courts stand idly by while the U.S. military and private armies like Blackwater have killed, maimed, brutalized and destroyed the livelihoods of hundreds of thousands of Iraqis."

A month after the Nisour Square massacre, on Oct. 20, a group of about 50 activists gathered outside Blackwater's gates in Moyock, N.C. There, they reenacted the Nisour Square shooting and staged a "die-in," involving a vehicle painted with bullet marks and blood. The activists stained their clothing with fake blood and dramatized the deadly shooting spree. Some of the demonstrators marked Blackwater's large welcome sign -- with the company's bear claw in a sniper scope logo -- with red hand prints. The demonstrators believed these "would be a much more appropriate logo for Blackwater," according to Baggarly. "We're all responsible for what is happening in Iraq. We all have bloody hands." It took only moments for the local police to respond to the protest, the first ever at Blackwater's headquarters. In the end, seven were arrested.

The symbolism was stark: Re-enact a Blackwater massacre, go to jail. Commit a massacre, walk around freely and perhaps never go to jail. All seven were charged with criminal trespassing, six of them with an additional charge of resisting arrest and one with another charge of injury to real property. "We feel like Blackwater is trespassing in Iraq," Baggarly later said. "And as for injuring property, they injure men, women and children every day." The activists were jailed for five days and eventually released pending trial.

When their day in court arrived, on Dec. 5, the activists intended to put Blackwater on trial, something the Justice Department, the military and the courts have systematically failed to do. Their action at Blackwater, the activists said, was in response to war crimes, the killing of civilians and the fact that no legal system -- civilian or military -- was holding Blackwater responsible. The Nisour Square massacre, they said, "is the Iraq war in microcosm."

But District Court Judge Edgar Barnes would have none of it. So outraged was he at Baggarly, the first of the defendants to appear before him that day, that the judge cleared the court following his conviction. No spectators, no family members, no journalists, no defense witnesses remained. The other six activists were tried in total secrecy -- well, secret to everyone except the prosecutors, sheriffs, government witnesses and one Blackwater official. Judge Barnes swiftly tried the remaining six activists behind closed doors and convicted them all. It was as though Currituck, N.C., became Gitmo for a day.

It's not unusual for a judge to clear a courtroom when there is a disruption by the public. Nor is it rare for judges to try to prevent activists from turning the tables and attempting to put the government -- or in this case a mercenary company -- on trial. But witnesses that day report that there was no disruption -- and the defendants say they were immediately cut off when they strayed from the narrow scope of the trespass charge to discuss Blackwater's actions or the war. So why clear the courtroom? That may be a question for Judge Barnes in the end, but it's hard not to view his conduct through the same veil of secrecy that shrouds all of Blackwater's actions -- and the seemingly endless lengths to which the Bush administration will go to protect Blackwater.

That was certainly how the activists saw it. "He didn't want people influenced by our message," Baggarly said. "There have been hundreds of thousands of civilian casualties in Iraq. If we're going to speak about that, nobody is allowed to hear it."

The North Carolina chapter of the ACLU quickly stepped in, saying it knew of no similar action in any previous criminal trials in the state. "It's a clear violation of constitutional rights, not only of the defendants but the press and public," said Katy Parker, the group's legal director. "They have a right to a public trial, so any trial that goes on behind closed doors is a farce." She added, "We are very concerned about this reported disrespect for the laws of our land by a member of the judiciary, especially in a controversial and politically laden case such as this." The ACLU filed a complaint against Barnes with the North Carolina Judicial Standards Commission, asking it to investigate him.

The activists appealed their convictions and were back in court last week, on Jan. 24, in front of Superior Court Judge Russell Duke. Unlike Judge Barnes, Duke allowed the defendants some freedom of speech and graciously decided to let the public witness the daylong trial. In his statement before the court, Baggarly recalled the story of one of the Nisour Square victims he and his fellow activists attempted to dramatize in their protest: "Mohammed Hafiz was driving four children when Blackwater mercenaries riddled the car with bullets. His ten-year-old son Ali was shot in the head. Mohammed had to gather up pieces of the child's skull and brains for the burial. During one point in the massacre, Blackwater operatives concentrated fire on a passenger bus. A small boy fled the bus in terror and was shot down as was his mother who ran after him."

The defendents said that they believed no court would hold Blackwater responsible for these killings and that, by committing civil disobedience on the company's private military base that day, they were guided by higher principles, citing the U.S. Constitution and the Bible. "U.S. law has immunized Blackwater, both in Iraq and at home, allowing it unrestricted license to kill and a five-year reign of terror," said Baggarly. The activists invoked the tradition of Martin Luther King Jr., Gandhi and the conveners of the Boston Tea Party. "'Made in the U.S.A.' is written all over those bullets that are flying all over Baghdad," one of the activists, Bill Streit, told the judge. "We're sick at heart about that."

Rather than ignore or dismiss their motivations, Judge Duke engaged the defendents in a theological discussion, challenging their Biblical interpretation and, at one point, admonishing the activists, many of whom are members of the Catholic Worker movement. "I've always thought that if you're going to be a follower of Jesus or someone who appreciates the Constitution, you can't select the portions that you like and disregard the rest," he said. The fact that the hearing was held at the same moment that the country was remembering the legacy of MLK, who called on his supporters to break unjust laws that violated the rights of others, seemed to be lost on Judge Duke. Perhaps he should have read Dr. King's "Letter from a Birmingham Jail," in which he wrote to other clergy accusing him of political extremism:
"[T]here are two types of laws: just and unjust ... One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all.' ... We should never forget that everything Adolf Hitler did in Germany was 'legal' ... Any law that degrades human personality is unjust ... I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."
It was in this tradition that those seven Americans found themselves engaging in nonviolent civil disobedience at Blackwater's gates last October and the very reason they were before Judge Duke last week.

Whether this mattered to him or not, Judge Duke's words were interesting, given the religious fanaticism and avowed patriotism of Blackwater's owner, Erik Prince. Like the "Blackwater 7," Prince considers himself a dedicated Christian and professes his love of country. How would Prince answer the judge if faced with a trial for the actions of his Blackwater killers in Iraq? How would he reconcile the killing of innocents by his men with the teachings of Jesus? What would his moral defense sound like?

The sad reality in this country right now -- as it was in Dr. King's day -- is that those who really belong before judges are not. Prosecutions are sought and secured for activists standing against killing and injustice and not for those meting it out. In the end, Judge Duke sentenced the activists to time served. It was the lightest sentence he could have issued -- but a far greater one than any Blackwater mercenary has faced for killing an Iraqi.

For its part, Blackwater issued a statement that would be funny if it wasn't so lethally ironic. "Many of the extraordinary professionals currently working for Blackwater are veterans who served their country in support of -- among other things -- the right to free speech and to peacefully protest in accordance with the law," said Blackwater spokesperson Anne Tyrrell. "We respect every person's right to speak out in support of his or her beliefs, but if laws are violated, it is the court system's responsibility to hold them accountable."

Tyrrell is right about one thing: The courts should hold the violators of laws accountable. But is that Blackwater's true position on its own conduct? Is that the Bush administration's position? No. Time and again, Blackwater and the White House have fought against having meaningful sanctions applied to mercenary forces. In fact, while the trial of the "Blackwater 7" was under way, last week the Bush administration was fighting once again to ensure continued immunity for Blackwater and other mercenary firms in Iraq. If we really were a nation of laws, there would be a lot of Blackwater mercenaries behind bars right now facing stiffer penalties than five days in jail. And these men would hardly be prisoners of conscience like the activists who protested Blackwater's lethal actions in Iraq.

In the end, before Judge Duke sent the activists home, he told them, "We're not here about what's happening in Iraq." Tragically for the U.S. Constitution and deadly for Iraqi civilians, when it comes to Blackwater and other merchants of death, this has been true of the American justice system for five years too long.

Jeremy Scahill, an independent journalist who reports frequently for the national radio and TV program Democracy Now!, has spent extensive time reporting from Iraq and Yugoslavia. He is currently a Puffin Writing Fellow at The Nation Institute. Scahill is the author of Blackwater: The Rise of the World's Most Powerful Mercenary Army.
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