Judge Tosses Lawsuits Against Blackwater, Now Xe.
Judge Refuses to Dismiss War Crimes Case Against Blackwater.
They sound like totally different, opposite stories, but they’re about the same decision, passed down Wednesday.
The entire AP article:
WASHINGTON — A federal judge on Wednesday tossed out a series of lawsuits filed by alleged Iraqi victims of the contractor once known as Blackwater USA, but is allowing the plaintiffs to refile their claims.
In a 56-page ruling Wednesday, U.S. District Judge T.S. Ellis III in Alexandria, Va., dismissed claims filed by 64 plaintiffs — including the estates of 19 people who died — who says Blackwater employees engaged in indiscriminate killings and beatings. The lawsuits also claim the company, now known as Xe, “fostered a culture of lawlessness” while it held a State Department contract to protect U.S. diplomats in Iraq.
Ellis is allowing most of the plaintiffs to refile, but only if they will be able to prove that employees engaged in intentional killings and beatings. He said a pattern of recklessness or a culture of lawlessness is not enough to sustain an allegation of war crimes under the federal law that governs the issue, the Alien Tort Statute.
Xe’s lawyers had argued that the lawsuits should be dismissed under any circumstances because the allegations involve political questions that cannot be resolved by the judiciary and because private entities cannot be sued under the Alien Tort Statute. Ellis rejected those arguments.
Both sides said they were pleased with the ruling. Plaintiffs’ lawyer Susan Burke said she will refile. She has said in previous hearings that she will be able to prove that Blackwater’s actions were intentional, not just reckless.
Xe spokeswoman Stacy DeLuke said in a statement that “we are confident that they (plaintiffs) will not be able to meet the high standard specified in Judge Ellis’ opinion.”
The ruling comes as a federal judge in Washington is considering what evidence to allow in a criminal prosecution of five Blackwater security guards accused of killing 14 unarmed Iraqi civilians in Baghdad in September 2007.
From The Nation‘s article:
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 T.S. 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’s 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’ documentation of 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.”
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.
I’m going to guess that they would have liked this tried in Iraq for one or both of two reasons: 1) Iraqi courts might have ruled they owed a few thousand dollars per dead Iraqi, and/or 2) Iraqi courts might have ruled that Blackwater wasn’t responsible for the actions of its employees. The latter reason is why Blackwater/Xe is arguing that another lawsuit against them, brought by the widows of three American servicemen’s widows, should be held in Afghanistan.
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.
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 seventeen Iraqi civilians and wounded more than twenty 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.”