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The Nation

Judge Refuses to Dismiss War Crimes Case Against Blackwater

Jeremy Scahill

An Iraqi traffic police officer inspects a car that a Blackwater Worldwide security detail is suspected of destroying as part of unprovoked attack in Nisoor Square in Baghdad. Guards from the private security contractor are charged with killing 14 unarmed Iraqi civilians and wounding 20 others in the 2007 incident. (2007 Photo By Khalid Mohammed -- Associated Press)

On Wednesday, a federal judge rejected
a series of arguments by lawyers for the mercenary firm formerly known
as Blackwater seeking to dismiss five high-stakes war crimes cases
brought by Iraqi victims against both the company and its owner, Erik
Prince. At the same time, Judge TS Ellis III sent the Iraqis' lawyers
back to the legal drawing board to amend and refile their cases, saying
that the Iraqi plaintiffs need to provide more specific details on the
alleged crimes before a final decision can be made on whether or not
the lawsuits will proceed.

"We were very pleased with the ruling," says Susan Burke, the lead attorney for the Iraqis. Burke, who filed the lawsuits in cooperation with the Center for Constitutional Rights,
is now preparing to re-file the suits. Blackwater's spokesperson Stacy
DeLuke said, "We are confident that [the plaintiffs] will not be able
to meet the high standard specified in Judge Ellis' opinion."

Ellis's ruling was not necessarily a response to faulty pleadings by
the Iraqis' lawyers, but rather appears to be the result of a Supreme
Court decision that came down after the Blackwater cases were
originally filed. In a 5-4 ruling in May 2009 in Ashcroft v. Iqbal,
the court reversed decades of case law and imposed much more stringent
standards for plaintiffs' to document facts before going to trial.
According to Ellis's ruling, which cites Iqbal, the Iraqis must now file complaints that meet these new standards.

Judge Ellis, a Reagan appointee with a mixed record
on national security issues, rejected several of the central arguments
Blackwater made in its motion to dismiss, namely the company's
contention that it cannot be sued by the Iraqis under US law and that
the company should not be subjected to potential punitive damages in
the cases. The Iraqi victims brought their suits under the Alien Tort Statute,
which allows for litigation in US courts for violations of fundamental
human rights committed overseas by individuals or corporations with a
US presence. Ellis said that Blackwater's argument that it cannot be
sued under the ATS is "unavailing," adding that corporations and
individuals can both be held responsible for crimes and torts. He said
bluntly that "claims alleging direct corporate liability for war
crimes" are legitimate under the statute.

Ellis also rejected Blackwater's argument that "conduct constitutes
a war crime only if it is perpetrated in furtherance of a 'military
objective' rather than for economic or ideological reasons." Ellis said
that under Blackwater's logic "it is arguable that nobody who receives
a paycheck would ever be liable for war crimes. Moreover, so narrow is
the scope of [Blackwater's] standard that it would exclude murders of
civilians committed by soldiers where there was no legitimate 'military
objective' for committing the murders."

"What is important here is that the judge is saying that violations
of war crimes can be committed by private people or corporations," says
Michael Ratner, president of the Center for Constitutional Rights. He
said Ellis's ruling is "an affirmation of the precedent set by CCR
thirty years ago" when it brought the first successful Alien Tort suit in 200 years
"that those who engage in violations of fundamental human rights abroad
can be held liable in the US." Ellis's ruling, he says, "is sympathetic
to the idea that the Blackwater case is an appropriate use of the law."

But Ellis also ruled that the Iraqi plaintiffs failed to provide
sufficient specific details linking Blackwater's owner Erik Prince to
the alleged murders and other crimes in Iraq. In order for the case to
proceed against Prince, Ellis wrote, "the complaints must state facts
that would allow a trier of fact plausibly to infer that Prince
intentionally killed or inflicted serious bodily harm on innocent
civilians during an armed conflict and in the context of and in
association with that armed conflict." The plaintiffs, Ellis ruled,
"have failed to meet this burden."

In a hearing on August 28, Burke said that she has evidence that Prince
ordered or directed the killings of innocent Iraqis and at that time
asked Judge Ellis permission to later amend her cases if Ellis ruled
that, in light of the Iqbal
decision, such information was necessary for the cases to proceed. In
his ruling, Ellis granted Burke's request in four of the five cases. In
one case, involving the alleged murder of a bodyguard for the Iraqi
vice president by a drunken Blackwater operative, Andrew Moonen, on
Christmas Eve 2006 inside the Green Zone, Ellis found that there was
insufficient evidence to suggest Prince "intentionally killed" the
bodyguard or that his "conduct proximately caused the decedent's


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In the four other cases, which include 18 Iraqi civilians allegedly
killed by Blackwater, Ellis ruled that Burke could refile her claim
with more details about Prince's alleged involvement and the role of
the Blackwater corporation in the killings. Ellis found that the cases
"could be amended to add factual allegations that would permit
plausible inferences that Prince and Xe [Blackwater] defendants ordered
killings of innocent Iraqi civilians... and that defendants' conduct
proximately caused the injuries or deaths to plaintiffs."

Ellis rejected Burke's allegation that Blackwater engaged in summary
executions, saying that under the law such classification of killings
"require[s] state action, and none is alleged here." Blackwater also
made an argument that the cases should have been tried in Iraq--or that
the Iraqis' lawyers should have exhausted that possibility before
filing their cases in US courts. Ellis shot down that argument and
pointed out that Blackwater's own lawyers admitted that under the Paul
Bremer-era Order 17 in Iraq, Blackwater would have immunity for its
crimes under Iraqi law. Ellis also rejected Blackwater's claim that
punitive damages are not allowed in these types of cases. As Ellis
wrote, Blackwater's lawyers "offer no support" for this argument "in
the case law or from recognized international treatises."

One of the central thrusts of the Iraqis' suits against Blackwater
is that Erik Prince is the head of an organized crime syndicate as
defined by the Racketeer Influenced and Corrupt Organizations Act. RICO
is a federal statute permitting private parties to seek redress from
criminal enterprises who damage their property. Burke and CCR decided
to sue Prince and his companies directly rather than his individual
employees because they say Prince "wholly owns and controls this
enterprise." They allege that Prince directed murders of Iraqi
civilians from Blackwater's headquarters in Virginia and North
Carolina. Ellis dismissed the claims that the Iraqis have standing
under the RICO Act, but ruled that they can file an amended complaint
that "Prince ordered or directed the killings allegedly committed in
Iraq from within the United States, and that such conduct proximately
caused the damage allegedly suffered by the RICO plaintiffs." In one of
the cases, Ellis ruled that the four-year statute of limitations had
expired for a RICO claim.

On August 3, lawyers for the Iraqis submitted two sworn declarations
from former Blackwater employees alleging that Prince may have murdered
or facilitated the murder of individuals who were cooperating with
federal authorities investigating the company. One former employee
alleged that Prince "views himself as a Christian crusader tasked with
eliminating Muslims and the Islamic faith from the globe," and that
Prince's companies "encouraged and rewarded the destruction of Iraqi
life." What role, if any, these allegations will play in the amended
complaints is unclear, but Burke insists she has evidence to back up
all of her allegations.

Burke's case is also bolstered by the evidence the US government will
present in its criminal case against Blackwater forces. On September 7,
federal prosecutors in Washington, DC, submitted papers
in the criminal case against five Blackwater operatives for their
alleged role in the 2007 Nisour Square shooting in Baghdad that killed
17 Iraqi civilians and wounded more than 20 others. Burke is
representing many of these families in her civil case. Blackwater
forces "fired at innocent Iraqis not because they actually believed
that they were in imminent danger of serious bodily injury and actually
believed that they had no alternative to the use of deadly force, but
rather that they fired at innocent Iraqi civilians because of their
hostility toward Iraqis and their grave indifference to the harm that
their actions would cause," the acting US Attorney in DC, Channing
Phillips, alleges in court papers submitted by Kenneth C. Kohl, the
lead prosecutor on this case. "[T]he defendants specifically intended
to kill or seriously injure the Iraqi civilians that they fired upon at
[Nisour] Square." The government also alleges that one Blackwater
operative "wanted to kill as many Iraqis as he could as 'payback for
9/11,' and he repeatedly boasted about the number of Iraqis he had
shot," while "several of the defendants had harbored a deep hostility
toward Iraqi civilians which they demonstrated in words and deeds."

In its motion to dismiss, Blackwater also argued that to allow the
company to be sued for alleged crimes in a war zone would violate the
rights of the president of the United States under the "political
question doctrine" to not have a "second-guessing of the battlefield
decisions of the U.S. government." Ellis rejected that outright and
noted: "The United States has appeared as an interested party and
argues that if defendants committed the alleged conduct, they were not
acting as employees of the United States when they did so. Moreover,
the government states that its contracts with defendants 'provided for
multiple layers of [Xe defendants'] management to oversee the
day-to-day operations' of its employees and that the employees were
under the direct supervision of Xe defendants' management when the
alleged conduct occurred."

Judge Ellis's ruling only relates to the charges that Blackwater and
Prince violated federal laws and not to the additional allegations that
they also violated state laws. Even if Judge Ellis ultimately rejects
all of the federal arguments made by Burke and CCR, which is a big if,
the cases can still proceed under "common law," as has happened in
other torture and war crimes cases. Ellis has not yet ruled on those

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