A 6th Amendment question
It's reported that the US will indict the Blackwater folks involved in the shooting in Iraq.
I think I see one problem. The 6th Amendment says a federal criminal jury must be by "an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law..."
I can't determine in what State and district Iraq is located.
In cases such as that of Noriega, I believe conspiracy was alleged, and they could pin down some coconspirators somewhere in the U.S.. But here it's a straightforward homicide charge.
UPDATE: No idea how the UCMJ deals with the issue. The 6th Amendment has no military exception. The only such is in the 5th Amendment's grand jury requirement, which says it doesn't apply to the military or to militia during a call-up.
How does the Uniform Code of Military Justice get around that? Certainly military personnel are prosecuted for crimes that that occur on foreign soil.
Posted by: Michael at December 5, 2008 08:43 AM
Interesting question. How did the feds try people in the territories? Or in Puerto Rico?
And from the article:
"To prosecute, authorities must argue that the guards can be charged under a law meant to cover soldiers and military contractors. Since Blackwater works for the State Department, not the military, it's unclear whether that law applies to its guards."
Posted by: jnheath at December 5, 2008 08:47 AM
For the sake of peace in the political world these guys will be convicted guilty or not. The government will spare no expense or let the law get in their way to do so.
Posted by: Jim K at December 5, 2008 09:15 AM
INAL, but I think they just need to find a jury pool of US Citizens who are/were in Iraq.
Posted by: Madrocketscientist at December 5, 2008 09:36 AM
For military personnel and most DOD folks overseas, there is a Status of Forces agreement that covers how those things are handled between the command and the host government.
A quick and dirty rule, for crimes that are uniquely military, e.g AWOL or cowardice under fire, the Commander breaks out the Manual for Courts-Martial and goes from there.
For crimes committed by military folks against military folks on military property, again it is the UCMJ that rules.
When crimes are committed by uniformed military folks against locals, the agreement says who gets first crack. For DOD civilians or dependents, they could just get sent home if the locals felt magnamimous, or they could rot in local dungeons if the politics dictate.
Posted by: Emil at December 5, 2008 11:12 AM
Until just recently (if it's even been approved) there was NO SOFA in Iraq.
And a pool of US citizens who have been to Iraq can hardly be called 'impartial' - by either side.
This prosecution is total BS....
Posted by: Flighterdoc at December 5, 2008 12:09 PM
PMI firms are not subject to the UCMJ.
Posted by: Marcus Poulin at December 5, 2008 12:15 PM
When an American citizen commits a violation of American law while not in America, surely there is a standard rule about where the trial is held when the accused is extradited back to the US. My guess would be Washington D.C. An example of this might be when an American with a top secret clearance gives secret information to the enemy while on vacation over seas. If the information was stolen then the accused might be charged in the district where it was stolen, but if it was obtained legally as part of his job then the entire crime might have been committed at the location where the info was handed over.
In this case however it may not be a violation of US law at all. It has been my understanding that murder is crime prosecuted by the country you're in or by the state government if you're in the US, but not by the US federal government (unless it's the murder of a federal government employee). In this case I'd guess the U.S. government can extradite the accused to Iraq if it wants to. If the US decides to then they may offer the accused the opportunity to have their cases tried in the US at whatever location the US government wants, and the accused might just have a take it or leave it option to have it tried wherever the US wants, or in Iraq. Surely the accused would willingly accept any location in the US rather than be extradited back to Iraq.
Could the accused challenge extradition to Iraq? I have no idea.
Posted by: Critic at December 5, 2008 01:36 PM
Wikipedia says "Typically, under United States law 18 U.S.C. § 3184 extradition may be granted only pursuant to a treaty.". But it lists a treaty we have with Iraq from 1934. I don't know if that treaty is still in effect.
Posted by: Critic at December 5, 2008 01:53 PM
There is more than one problem with this. Who are you going to believe as witnesses and who is going to judge. If they are to be tried in Iraq (with Iraq court and Iraqi citizens), I would guess to say they will be convicted. If tried in US with US court and US witnesses, they would probably get off.
I agree with FLIGHTERDOC, this prosecution is only as good as where it is held, and therefore makes it bullsh#t.
Posted by: Tom at December 5, 2008 03:38 PM
MEJA (the Military Extraterritorial Jurisdiction Act of 2000; 18 U.S.C. § 3261 et seq.) applies to felony-level offenses committed by persons employed by or accompanying the Armed Forces outside the United States. The jurisdiction applies worldwide, not just within Iraq or Afghanistan.
U.S. Federal district court jurisdiction was further extended in 2001 by the PATRIOT ACT amendment to the definition of “Special Maritime and Territorial Jurisdiction of the United States,” but in doing so excluded those persons who would be subject to MEJA jurisdiction. Section 1088 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375, October 28, 2004), amended MEJA and extended its jurisdiction to cover employees and contractors of other U.S. Government agencies and provisional authorities outside the United States, but only to the extent such employment related to supporting the mission of the Department of Defense overseas.
Throughout, MEJA jurisdiction does not apply to persons who are nationals or ordinarily residents of the host nation in which the crime is committed.
[Just for fun, note that when the British charge someone with a crime committed outside the UK, the charge reads something like "that [the accused] did feloniously, etc. commit the abominable and detestable crime against nature in the Republic of Afghanistan in the County of Middlesex..." so that the accused can be tried in the Central Criminal Court (the Old Bailey) which has jurisdiction over the City of London and the County of Middlesex (greater London). Under UK law, every place in the world is within the County of Middlesex if the Attorney General determines to prosecute someone for a crime committed there.]
Posted by: Mark Seecof at December 5, 2008 03:53 PM
I dont know if these guys are guilty of a crime or not. What I do know is they were hired as bodyguards for and by the US State Dept. not the military. According to various reports they are the preferred group for such work and have never lost a client because of their do what it takes attitude. If they are convicted of anything, future diplomat protection could get very dicey!
Posted by: Joe at December 5, 2008 06:06 PM
My layman's understanding is that through an interaction of legislation and court decisions, military contractors are not covered by the UCMJ, or at least were not covered at the time of the shooting. They used to be covered by UCMJ, and may be again, but there was a gap in coverage. It was also determined that Iraq did not have jurisdiction, for reasons I'm not clear on. The US has, properly I believe, not signed on to recent world court initiatives. Unless US contractors in a war zone are effectively immune to any prosecution for any crime whatsoever, that leaves US criminal law by default.
I agree its a suboptimal solution, but I follow the logic behind it. I'd rather these guys face a day in court than walk only because no one in the world has jurisdiction for them allegedly shooting civilians. That the solution appears unconstitutional is a real challenge, though.
Posted by: Dave at December 5, 2008 11:26 PM
My hunch is the 6th well be whatever the federal judge wants it to be. I believe more than a few cases the USSC has made rulings on the 10th and the 16th that are not allowed to be noted in court by federal judges. This even goes for the 2nd, which is very clear with the last four words.
Any more I believe the Constitution has giving the citizens time. What we do with that time is up to us.
Posted by: avgJoe at December 8, 2008 07:31 AM
How about the BS charge that they used Machine guns in the commision of a Felony. As if the crime had been commited in the US.
The shear stupidity of adding that charge speaks to the mindset and incompetance of the prosecuters.
The charges should be laughed out of court.
Posted by: Dan Hamilton at December 8, 2008 07:35 AM