Counterinsurgency Injustice

To those outraged by U.S. District Judge Ricardo Urbina’s dismissal of criminal charges against Blackwater for killing 17 Iraqi civilians, try finding solace in the fact that the case will be appealed. Though the previous case rested on a legal foundation, however shaky, a new case could transcend the US legal system.

So long as Iraqis keep venting like they are.

Shortly after the announcement Ali al-Dabbagh, the Iraqi government spokesman, released a statement saying, "The Iraqi government will follow up on this issue in strength and resolution to bring those murderers of Blackwater to accountability in order to return the rights of Iraqi people who are the victims of this crime."

But since a negative reaction to the dismissed case was known beforehand, a repeat offense is certainly possible. If appealing to “justice,” friendly alliances, and human rights wasn’t persuasive enough, America should hold up a mirror and focus on itself. Any means to get the message through.

Blackwater’s perceived immunity does injustice to US counterinsurgency operations worldwide and underscores the necessary inclusion of the judicial dimension.

Iraqi human rights minister, Wejdan Mikhail, was "astonished" by the US move and lamented, “There was so much work done to prosecute these people and to take this case into court and I don't understand why the judge took this decision.”

But to be fair Judge Urbina isn’t the problem, instead an unwitting failure in President Obama’s strategy to engage Muslims and counter Islamic militants. Urbina was presented with compromised testimony built on prosecution blunders possibly encouraged by the Bush administration. Even if true Obama still had a year to intervene in the flawed process, extraordinary as that step would've been.

Now he’ll have to speak out during the appeal process, a dangerous political move at home, or risk losing respect in the Muslim world.

"The message is these people are protected by the American administration," said Kurdish lawmaker Mahmoud Othman. "These people were backed by the State Department... We are entering the new year with a bad message. People won't be satisfied on the political or popular level."

“The Iraqi government regrets and is disappointed by the U.S. court's decision,” Dabbagh said in one of many telephone interviews of his day. “The investigations carried out by the specialized Iraqi authorities confirmed with no doubt that the guards of Blackwater company have committed a criminal murder act and they have violated the combat environment rule to use force while there was no threat against them.”

So Iraqis are outraged, big deal. But America isn’t withdrawing its main force from Iraq for another two years and plans to leave a substantial residual force - possibly 50,000 troops - behind. A legal case that should have been included within Iraq’s overall counterinsurgency was allowed to operate independently. Not surprisingly US troops have been put in danger.

This single event may not prove cataclysmic; Blackwater’s shooting was followed by a general de-escalation of violence in 2008. But self-inflicted wounds to US perception are unacceptable in a global war where efficient counterinsurgency is the grand prize. Today's ruling has created enormous friction, as Clauswitze would say.

Saad al-Muttalibi, an adviser to the Iraqi council of ministers, said the issue would complicate relations between Iraq and the United States: "This matter will be appealed in the American court and if not resolved correctly, this will definitely add another strain on the relationship between Iraq and the United States."

General Ray Odierno, commander of US forces in Iraq, agreed that the court's decision could spawn local resentment against US troops and other security firms operating in the country. Reuters quoted him as saying, "Of course we're upset when we believe that people might have caused a crime and they are not held accountable. I worry about it because clearly there were innocent people killed in this attack.”

Yet Odierno still felt compelled to obey his superiors even if he disagrees, backtracking, “Of course people are not going to like it, because they believe that these individuals conducted some violence and should be punished for it, but the bottom line is, using the rule of law, the evidence is not there.”

al-Muttalibi directly attacks this logic; counterinsurgency could care less about “American legality.” These Blackwater guards admitted to the crimes they committed, causing the case to be dismissed on purely legal grounds. This may be well and good in a vacuum, and Urbina can’t be faulted for ignorance, but his ruling is a direct contradiction to counterinsurgency.

Population is the prize and perception can mean everything in a foreign land.

“The legality or the procedures of the court case should not stop the criminals from facing justice and receiving a just sentence,” said al-Muttalibi. "This is very bad for the overall look of the United States outside its borders. It's very important for the Americans to realize that this will work against their interests in Iraq and other places."

Pakistan, for instance, where Blackwater rumors already have the country on edge. Again, the perception is one of Blackwater hovering above the law - US, international, Iraqi, or Pakistani, it doesn't matter. What good is this perception supposed to do for Obama?

Executive and Congressional oversight must establish a legal framework for private contractors in US war-zones; rulings like Urbina's must be decided within a counterinsurgency, not outside. America cannot keep fostering the impression that those it employs, soldier or civilian, are above the law, which leads to the theory that America deliberately uses private contractors to subvert the law in foreign countries.

“They came and they went, as they should have," said Rihab Abdul Karim, whose nephew was killed in Nissour Square. "They were arrogant with the power they had. They thought they answered to no one. And with this verdict, maybe they were right."

But described thus far, a legal system to handle private contractors employed in US war-zones assumes a passive role, correcting injustices as they occur. In theory, punishment will take on a proactive counterinsurgency role by stopping crimes from occurring in the first place, preventing local resentment at its source.

If Iraqis and Americans are feeling like Blackwater is invincible, how is Blackwater feeling? One must assume its members will lie low, at least for now, rather than test their new found Teflon with the case subject to appeal and so fresh in memory. But in the back of their minds they must realize how large their room for error is, and this feeling will spread to other private contractors.

And why not? They don't take the fall when they get caught anyway - that's America's problem. Just observe the behavior in Kabul and Karachi, where US security guards act without any fear of local law enforcement, knowing full well that US embassy officials will bail them out of trouble.

Any such notion must be forever washed away by delivering due punishment to those who commit crimes in foreign countries. Retrying the Blackwater guards would be a good start, but the case is likely too tainted at this point. That means Obama must come down hard on the next incident to set a precedent for his surge in Afghanistan and Pakistan, Yemen, or wherever he sends PMC’s next.

They aren’t above the law, nor can they be allowed to hijack America's image in the Muslim world or strain relations with individual countries where US troops operate.

This is proper counterinsurgency, not yesterday's injustice.