WASHINGTON - The Pentagon wrote in 2007 that Blackwater Worldwide contractors in Iraq are not subject to U.S. civilian criminal laws. That position undercuts the Justice Department's effort to prosecute five Blackwater security guards for manslaughter.
The letter highlights the uncertainty prosecutors face in bringing charges against contractors involved in a September 2007 shooting that left 17 Iraqis dead in a Baghdad intersection. Iraqis are closely watching how the U.S. responds to the shooting, which inflamed anti-American sentiment abroad.
Defense contractors can be prosecuted in U.S. courts for crimes committed overseas, but because of a legal loophole, contractors for other agencies can only face charges if their work assignments supported the Defense Department.
Blackwater works for the State Department. The largest security contractor in Iraq, the company guards U.S. diplomats. Five of its guards face manslaughter and weapons charges for a shooting that prosecutors say was an unprovoked attack on civilians.
Federal prosecutors in Washington are trying to persuade a judge to hear the case. They say the Defense Department mission and the State Department mission are essentially the same: creating a stable, self-governing Iraq.
When Blackwater guards protected State Department diplomats, prosecutors told a federal judge last week, they were supporting the Defense Department's mission. By protecting diplomats, prosecutors said, Blackwater freed up Pentagon resources.
But in December 2007, the Defense Department disagreed. In a letter to Rep. David Price, D-N.C., Deputy Secretary of Defense Gordon England explained how the military handles allegations against contractors.
"I am informed that the Blackwater USA private security contractors working under a Department of State contract were not engaged in employment in support of the DOD mission," England wrote in the letter, a copy of which was provided by Price's office.
Thus, England wrote, federal prosecutors don't have jurisdiction to charge the Blackwater guards. He was writing in response to a letter from Price, who has long maintained that the loophole in the law should be closed.
Defense Department spokesman Chris Isleib said Monday that the views in the letter remain the view of the Defense Department.
Justice Department spokesman Dean Boyd disagreed.
"The position taken by the Justice Department in the Blackwater prosecution is the position of the U.S. government," Boyd said.
Whether Blackwater is covered by what's known as the Military Extraterritorial Jurisdiction Act remains a matter of some debate. Blackwater founder and chief executive Erik Prince said in an interview with The Associated Press that he believed his security guards were covered and could be prosecuted in criminal courts.
Paul Cox, a spokesman for Price, said the congressman believes the courts should settle the question, regardless of England's letter.
U.S. District Judge Ricardo Urbina will decide whether the case should go forward. The five guards have asked that the case be thrown out.
The State Department said Friday it would not renew Blackwater's contract to protect American diplomats in Iraq when it expires in May. The announcement followed the Iraqi government's decision to deny Blackwater a license to operate.