June 23, 2014

Partner France Hoang Quoted in Law360: Blackwater Shooting Case To Determine MEJA Reach

Blackwater Case Tests DOJ Authority Over Contractors Abroad

By Erica Teichert

Law360, Washington (June 19, 2014, 4:43 PM ET) -- As the trial began this week in Washington federal court against four former Blackwater Worldwide contractors accused of killing 14 Iraqi citizens in Baghdad, experts say the case's outcome will ultimately impact theU.S. Department of Justice's ability to prosecute non-U.S. Department of Defensecontractors for offenses committed outside the country.

Under the Military Extraterritorial Jurisdiction Act, employees whose work internationally “relates to supporting the mission of the Department of Defense” and who violate U.S. law while abroad can be tried in the U.S. But the statute's language is ambiguous and doesn't provide criteria to determine when non-DOD contractors are supporting the agency's mission.

In the case at hand, the Blackwater security guards were employed by the U.S. Department of State to provide diplomatic security for U.S. embassy protectees in Baghdad, and they claim their presence in Iraq cannot fall under the scope of MEJA because there was a lack of coordination between the military's offensive strategy and the contractors' defensive mission.

One of the guards, Nicholas Slatten, is charged with first-degree murder, and his colleagues Paul Slough, Evan Liberty and Dustin Heard face voluntary manslaughter, attempted manslaughter and weapons charges stemming from a Sept. 16, 2007, shooting in Baghdad's Nisour Square that killed 14 Iraqi civilians and injured 18 more.

“They didn't take orders from the Department of Defense,” Brian Heberlig, counsel for Slatten, told the jury Wednesday. “They didn't conduct missions to attack or capture insurgents.”

According to Francis Hoang of Fluet Huber & Hoang PLLC, Congress likely meant for MEJA to be interpreted broadly, but its intent is clouded with ambiguity, thanks to the “supporting the mission of the Department of Defense” language. DOD contractors fall under the scope of MEJA regardless of the Blackwater case's outcome, but the jurisdictional questions could have an impact on non-DOD contractors with extraterritorial operations.

“The war is more complex now in a place like Iraq or Afghanistan,” Hoang told Law360. “It requires more than the boots on the ground. They're not just soldier's boots. It's [U.S. Agency for International Development] and other federal agencies. Those agencies have federal contractors.”

But the government and the defendants have little case law to rely on as they promote their own interpretations of MEJA since the statute has been used in the past to prosecute civilian contractors who downloaded child pornography or committed similar offenses, rather than to prosecute murder or manslaughter charges. This is also the first time the statute has been exercised to charge a non-DOD contractor.

“Either way, it's going to have an impact,” Hoang said.

Although the DOJ's broad interpretation could bring contractors with several federal agencies under MEJA's wing, South Texas College of Law professor Geoffrey S. Corn said that a blanket jurisdictional statute could benefit non-DOD contractors in the long run.

“I think it's actually a good thing,” Corn told Law360. “Contractors should assume if they or their personnel are in serious criminal misconduct that a U.S. attorney will in fact have jurisdiction to investigate and pursue a charge against them. That should increase the discipline, the professionalism of those individuals, just like we expect for military personnel.”

MEJA likely won't cause contractors to drastically change their practices, but Corn said it could add elements to contract negotiations and boost employee training practices.

“If I were negotiating a contract knowing that I might be subject to criminal prosecution, I might negotiate for the government to provide legal counsel for my people if they got in trouble,” he said. “But ultimately what it should do is it should send a message to contractors and the people administering those contracts that they have an obligation to prepare their people to follow the law in these environments, just like a soldier is prepared.”

But the Blackwater guards still maintain there's no way the government can prove that State Department security contractors support the DOD mission as the agency provides protection for U.S. diplomats in other foreign countries without military operations.

“We shouldn't even be here,” Heard's attorney David Schertler said.

If the security guards prevail on the jurisdictional question, Hoang predicted there would be movement in the courts and Congress to close the widened prosecutorial gap.

“If MEJA is not interpreted broadly, I expect there will be follow-up in the legislative and judicial and maybe even executive branch to clarify what MEJA means,” Hoang said.

--Editing by Kat Laskowski and Christine Chun.

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