Over the past few days, there has been quite a buzz on listserves
frequented by private security contractors and industry representatives
over the recent "arrest" of five US contractors by Iraqi forces in
Baghdad. Over the past six years of occupation, contractors have become
accustomed to operating in a zone of legal immunity and impunity
(especially when it comes to the authority of the Iraqi judicial
system). If Iraq were to really start asserting its authority over
crimes committed by private forces in Baghdad, it would create a very
tense situation between the Obama administration and the corporate
shadow army on which his foreign policies in Iraq and Afghanistan
depend. Bush had a simple way of dealing with this issue: he banned
Iraqi courts from having jurisdiction (through Bremer's Order 17) and
worked with companies to facilitate the flight from justice of murder
suspects wanted by the Iraqis.
This recent case of the five US
contractors could well become a major test on how Obama's
administration comes down on the broader issue of contractor
accountability and, ultimately, the sovereignty of the Iraqi judicial
Over the past day, new information is coming out of
Baghdad regarding the arrest of the five men in connection with the
death of another contractor. On May 22, James Owen Kitterman was found
stabbed to death in Baghdad. He was president of Janus Construction, a
company which Kitterman started last year, though he had worked in Iraq
from the very beginning of the occupation.
When the story was initially reported, The New York Times,
citing unnamed Iraqi Interior Ministry spokespeople, alleged last
weekend that the five men were "detained in Baghdad in connection with
the killing." The case was being portrayed as evidence of Iraqi
sovereignty and an indication that the era of immunity for US
contractors in Iraq was over:
The suspects were arrested by an Iraqi force with American
backing, according to an embassy official, who insisted on anonymity
because of the delicacy of the case. A statement issued by the State
Department said that "local representatives from the F.B.I. were
present during the search" that led to the arrests.
An F.B.I. official said the agency would defer to Iraqi authorities in the case,
but would provide low-key assistance if requested. The official, who
spoke on condition of anonymity because the investigation was ongoing,
said that the case could be a test of Iraq's nascent judicial
system and of new arrangements between Iraq and the United States
governing contractors' legal status.
Now, however, a different narrative is emerging in the Times,
which has the US and Iraqi authorities providing different versions of
why the men were arrested. New details are also coming to light about
the identities of the men:
Four of them worked as security contractors for Corporate
Training Unlimited; the founder and chairman of the company, Donald
Feeney Jr., 55, and his son Donald Feeney III, 31, were among the
detainees. The other man being held worked for another contracting
Iraqi and American officials have been working together
on the investigation but give different accounts of why the men were
"The five were not arrested on suspicion of murder
but were detained on an unrelated matter," said James Fennell, a
spokesman for the United States Embassy. "The search that took
place was part of the investigation into the Kitterman homicide, but at
the time Iraqi law enforcement came upon possible evidence of an
He did not say what the evidence was.
Gen. Abdul Karim Khalaf, a spokesman for the Interior Ministry, said
unequivocally that the men were arrested on suspicion of murder.
Feeney, Donald Feeney Jr.'s younger son, said in a phone interview that
the authorities had confiscated weapons, probably while checking for
proper registration. But he also said that the group's detention was
directly related to the murder investigation and that a resolution
should come in the next few days.
"We expect them to be released soon with no charges filed," Mr. Feeney said.
How this situation is handled will be very interesting to watch. If
the US does allow these men to be prosecuted in an Iraqi court and
potentially sentenced to prison or the death penalty, it will send
extreme shock waves through the contractor community and present a very
complicated situation for President Obama, who continues to rely very
very heavily on these private forces to maintain the US occupation of
Iraq and increasingly, by the day, the US operations in Afghanistan.
There will certainly be an argument by defense lawyers (if it gets
that far) that these five men should be prosecuted in US courts or
potentially under the Uniform Code of Military Justice. While the
outcome of this case will be an important development to monitor, the
real test of how the US views contractor accountability will be when an
armed US contractor kills an Iraqi civilian and Iraq attempts to arrest
and prosecute that individual. Would that ever be allowed to happen?
US Justice Department has moved to prosecute some contractors,
including five Blackwater men at the center of the September 2007
Nisour Square shooting in Baghdad, but there are scores of incidents
that have (thus far) gone unprosecuted. Instead, victims' families have
sought to sue companies and contractors in US civil courts in an effort
to win justice.