Blackwater Lawsuit Update

CBS news is rerunning the story of the Blackwater pilots who flew into a mountain, and the widows’ lawsuit against the firm.

But as we reported last February, it was an accident that never should have happened and you would not be hearing about it now if it weren’t for his widow, herself a former high-ranking Army officer, who waged a five-year battle against one of the military’s most important contractors.

Col. McMahon was no ordinary widow and in her mind her husband was the victim of Blackwater. Until her retirement a few months ago, the West Point graduate and former helicopter pilot seemed to be a future candidate for general, but her life changed when her husband and West Point classmate was killed on a routine flight back to his cavalry squadron in western Afghanistan.

And while still on active duty, she decided to sue Blackwater’s aviation subsidiary for flagrant safety violations and reckless disregard for human life.

You may remember this quote:

“I swear to God they wouldn’t pay me if they knew how much fun this was,” Captain English said on the recording.

English and his co-captain, Butch Hammer, had only been in Afghanistan for 13 days, and neither one of them had ever flown the route between Bagram and Farah. And their inexperience showed: they didn’t file a flight plan, and instead of taking the easier route to the southwest with lower mountains, they set off to the north and never seemed to get their bearings.

“I hope I’m going in the right valley,” English said on the voice recording.

Flight mechanic Mel Rowe voiced his concern early on. “I don’t know what we’re going to see, we don’t normally go this route,” Rowe said.

To make matters worse, the Blackwater operations center in Bagram didn’t have the equipment necessary to track the flight. So once it left the air base, the company had no idea where its plane was. But the crew seemed unperturbed.

“You’re an X-wing fighter. Star Wars man,” co-Captain Butch Hammer said to Noel English.

“Damn right. This is fun,” English replied.

Jeanette McMahon says that she and the other widows probably would never have filed the lawsuit if Blackwater or its aviation wing had shown some remorse.

McMahon told Kroft no one from Blackwater ever called her to express their condolences. “Never. They took absolutely no responsibility. I mean, if they had come out with open arms and said, ‘We are responsible. We are so sorry.’ That point never really came across,” she said.

Can’t expect God’s Own Contractors to apologize for anything.

And here comes the part I have always found ironic, and so appropriate for this blog:

Neither Blackwater nor Presidential Airways would give us an interview. But court records show they tried to get the lawsuit dismissed on the grounds that they were part of the military and immunized from civil lawsuits.

They also claimed there was no actual proof of what caused the crash, and even asked that the case be tried under Islamic law because the crash occurred in Afghanistan.
Under Islamic law companies are not liable for the actions of their employees.

Blackwater CEO Erik Prince, of course, is an evangelical Christian. The following allegation has been made against him by a former employee:

The former employee also alleges 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.”

To that end, Mr. Prince intentionally deployed to Iraq certain men who shared his vision of Christian supremacy, knowing and wanting these men to take every available opportunity to murder Iraqis. Many of these men used call signs based on the Knights of the Templar, the warriors who fought the Crusades.

Mr. Prince operated his companies in a manner that encouraged and rewarded the destruction of Iraqi life. For example, Mr. Prince’s executives would openly speak about going over to Iraq to “lay Hajiis out on cardboard.” Going to Iraq to shoot and kill Iraqis was viewed as a sport or game. Mr. Prince’s employees openly and consistently used racist and derogatory terms for Iraqis and other Arabs, such as “ragheads” or “hajiis.”

From here.

And this site, Truth or Treason, has some facts and some speculation about Prince’s exact religious beliefs.

Good or Bad News About Lawsuit Against Blackwater

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.

Sweet.

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.”

Iraq Update

A couple things in the papers caught my eye. From the LA Times, Iraqi Refugees Find U.S. Life Not What they Expected:

Her husband had disappeared in the war. Her request to settle in Jordan had been denied. Now an advisor from the International Organization for Migration was telling her no U.S. firm would recognize her law degree or her nearly two decades of experience.

In a month, the 51-year-old woman was due to leave for Portland, Ore. In the hushed room, she protested helplessly, “I am a lawyer. What else can I do?”

Two of Shifa’s brothers were shot to death in the streets. In May 2005, gunmen in a speeding car seized her husband as he left for work at an electronics import firm. Shifa watched from a window. It was the last time she saw him.

To pay a $150,000 ransom, she sold the new home they had been building. But she did not get her husband back. She spent months scouring police stations, hospitals and morgues, studying hundreds of pictures of corpses, battered, burned and riddled with drill holes.

“I even went to the trash dump to see if his body was there,” she said.

Six years of war have produced an estimated 2 million Iraqi refugees. Jordan and other neighboring countries have been overwhelmed. Refugee advocates have long pressed the United States to take in a greater share.

This year, the U.S. has pledged to admit 17,000 Iraqis, a huge increase over the 202 permitted in 2006.

Anyway, it’s a good article. It’s nice to keep up to speed on the story that’s hardly covered in the news anymore.

I particularly liked this letter to the editor in the Washington Post, probably mostly because it agrees with what I’ve been saying all along:

I find reporting in The Post on Iraq generally balanced and of high quality, but occasionally it disappoints. The Aug. 20 front-page article “Iraq Carnage Shows Sectarian War Goes On” was misleading.

It is true that in 2006, al-Qaeda and other Sunni extremists came close to igniting a sectarian war in Iraq, but they failed. Their failure — and the failure of all extremists in Iraq — was due in large measure to the revulsion they faced from society at large.

Iraq has moved on, but the terrorists haven’t. They demonstrated last week that they can kill, maim and cause destruction. But they have singularly failed to cause “sectarian war.” There is no evidence that any such war is possible in Iraq. That is because Iraq’s communities are both aware of the dangers of such a war and because it goes against their values and traditions.

Explaining such wanton violence as we saw last Wednesday in terms of sectarian conflict is easy, but it is wrong, based on a superficial, one-dimensional understanding of the struggles going on in Iraq. Shiites were not the only ones to fall victim, but Sunnis, working side by side with their Shiite colleagues, were equally targeted and fell victim.

In addition, when referring to the Iraqi government, journalists need not always attach the prefix “Shiite-dominated.” We Iraqis find this offensive. Why not use the name “National Unity Government,” the name that the Iraqi government actually goes by, instead?

The bottom line is that the Iraqi people, by virtue of their sheer resilience and traditional values, will confound both the terrorists and the writers of “sectarian war” scenarios.

SAMIR SUMAIDA’IE
Ambassador
Embassy of Iraq
Washington

And thirdly, this non-strictly-Iraq-focused blurb on Alternet about Blackwater cum Xe:

Scahill, who has written a popular book about Blackwater, had scathing comments about the organization, calling it “Erik Prince’s Christian supremacist fighting force to eliminate Muslims and destroy Islam globally, and then they bill taxpayers again for this killing that they’re doing and they’re not held to the same standard as soldiers.”

“There are Iraqi and Afghan people that are forced to face down against them, when, I’m sorry, the U.S. Congress does nothing to stop it,” he continued, “and journalists have done nothing to hold the White House accountable now, Chuck, or under Bush. This has not been an issue and yet it constitutes more than half of the fighting force in Afghanistan.”

Scahill singled out Todd, a fellow panelist on HBO’s “Real Time With Bill Maher”, for not taking the issue more seriously. “Chuck, you called it political cat-nip to talk about the CIA and Cheney’s role in this, because it distracts from the important issues,” he said. “This is a central issue and you called it cable cat-nip.”

Bits and Pieces

I’m having trouble coming up with a coherent post again. Here are a few odds and ends.

1- An Israeli tourism map used in advertisements in the London Underground was eventually pulled after complaints.

The Israel Government Tourism Office is withdrawing a series of posters displayed in London Underground stations featuring a map that treats the occupied territories as part of Israel, after the advertisements were referred to the Advertising Standards Authority.

The yellow map makes no distinction between Israel and the Golan Heights, the West Bank and Gaza.

2- There are no new developments in the lawsuit filed against Blackwater last year. I found this blogable because Eric Prince, Blackwater CEO, is a big Christianist who nevertheless deeply hopes that shariah law will decide this case. Why? Because shariah law will let his company entirely off the hook.

When asked to justify having a case involving an American company working for the U.S. government decided by Afghan law, Prince said: “Where did the crash occur? Afghanistan.”

3- And here’s a picture from Broken Picture Telephone that struck me as hilariously funny:

Turkey fails CIA entrance exam

4- And here’s a really neato picture of Sana’a, Yemen.

Islamic Law A-Okay Says Christianist Businessman

Eric Prince is the founder and sole owner of Blackwater Worldwide, formerly Blackwater USA. He has donated hundreds of thousands of dollars to Christianist and Republican causes. Ordinarily, people who support those two things disapprove of Islam and Islamic law.
However, since Mr Prince’s company, Presidential Airways, is being sued by the widows of three American servicemen who died in a crash of that company’s aircraft in Afghanistan, he wants the case tried under Afghanistan’s legal system, based on Shariah (Islamic) law. Because it would let his company, which has been determined to be at fault in the accident, off the hook.

To defend itself against a lawsuit by the widows of three American soldiers who died on one of its planes in Afghanistan, a sister company of the private military firm Blackwater has asked a federal court to decide the case using the Islamic law known as Shari’a.
The lawsuit “is governed by the law of Afghanistan,” Presidential Airways argued in a Florida federal court. “Afghan law is largely religion-based and evidences a strong concern for ensuring moral responsibility, and deterring violations of obligations within its borders.”

If the judge agrees, it would essentially end the lawsuit over a botched flight supporting the U.S. military. Shari’a law does not hold a company responsible for the actions of employees performed within the course of their work.

From another article:

When asked to justify having a case involving an American company working for the U.S. government decided by Afghan law, Prince said: “Where did the crash occur? Afghanistan.”

In a motion filed in April, Blackwater attorneys said “the policy interest of Afghanistan must be considered as it is undisputed that is the place where the injuries occurred. Further, the alleged negligent conduct, from the planning and scheduling of the accident mission to the alleged operation errors, took place in Afghanistan.”

Lawyers for the women say the case was properly filed in Florida because that is where the defendants did business at the time of the crash. Presidential Airways was based in Melbourne, Fla., at the time.

Presidential Airways earlier had argued the lawsuit should be dismissed under the legal doctrine that soldiers cannot sue the government. Presidential Airways was under contract with the U.S. military to fly cargo and personnel around Afghanistan.

But a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta refused to dismiss the lawsuit on that basis in October.

The National Transportation Safety Board has blamed the crash on Presidential Airways, saying it failed to ensure that its crews followed company policy and Pentagon and Federal Aviation Administration safety regulations and for its “failure to require its flight crews to file and fly a defined route.”

All bolding mine.

Update: I just found this CNN article from Oct of 2007 that included this:

A 2004 crash that killed everyone on board — three crew members and three U.S. troops — was caused by pilots from a Blackwater plane taking a low-level run through a mountain canyon in Afghanistan, testimony revealed Tuesday.

I swear to God, they wouldn’t pay me if they knew how much fun this was,” the doomed plane’s cockpit voice recorder captured the pilot saying shortly before the November 27, 2004, crash.

“You’re an X-wing fighter Star Wars man,” an NTSB report quoted the plane’s co-pilot, Loren Hammer, saying during the flight — a reference to the dizzying battle in the 1977 film.

“You’re [expletive] right. This is fun,” the pilot, Noel English, responded.

About eight minutes later, the plane slammed into the wall of the canyon, which was flanked by ridgelines that rose nearly a mile above surrounding terrain.

When an unidentified passenger asked about the plane’s route before the crash, flight mechanic Melvin Rowe told him, “I don’t know what we’re gonna see. We don’t normally go this route.”

English added, “All we want is to avoid seeing rock at 12 o’clock.”

Federal investigators found each should have been paired with a more experienced aviator, according to Rep. Henry Waxman, D-California. Waxman is chairman of the oversight committee, which is investigating Blackwater’s performance on more than $1 billion in U.S. government contracts since 2001.

He said a company e-mail stated the company had overlooked experience requirements “in favor of getting the requisite number of personnel on board to start up the contract.”

“The corporation hired inexperienced pilots. They sent them on a route they didn’t know about,” Waxman said. “It seems to me that it’s more than pilot error. There ought to be corporate responsibility, and Blackwater was the corporation involved.”

Prince said investigators concluded the crash in Afghanistan was not due to corporate error, but pilot error. He rejected Waxman’s contention that the pilots “acted like cowboys.”