The New York Times story is getting the buzz:
The helicopter was hovering over a Baghdad checkpoint into the Green Zone, one typically crowded with cars, Iraqi civilians and United States military personnel.
Suddenly, on that May day in 2005, the copter dropped CS gas, a riot-control substance the American military in Iraq can use only under the strictest conditions and with the approval of top military commanders. An armored vehicle on the ground also released the gas, temporarily blinding drivers, passers-by and at least 10 American soldiers operating the checkpoint.
“This was decidedly uncool and very, very dangerous,” Capt. Kincy Clark of the Army, the senior officer at the scene, wrote later that day. “It’s not a good thing to cause soldiers who are standing guard against car bombs, snipers and suicide bombers to cover their faces, choke, cough and otherwise degrade our awareness.”
Both the helicopter and the vehicle involved in the incident at the Assassins’ Gate checkpoint were not from the United States military, but were part of a convoy operated by Blackwater Worldwide, the private security contractor that is under scrutiny for its role in a series of violent episodes in Iraq, including a September shooting in downtown Baghdad that left 17 Iraqis dead.
Scott L. Silliman, the executive director of the Center on Law, Ethics and National Security at the Duke University School of Law, points out that this once again gets into Blackwater’s legal gray areas, what I like to refer to as legal mud. As I’ve previously written, that legal mud may even get Blackwater off the hook for last year’s massacre of seventeen Iraqi civilians. As the Washington Post reported, in November:
FBI investigators have reportedly concluded that the killing of 14 of the 17 civilians was unjustified under State Department rules on the use of force. But the case is muddied by the question of what laws, if any, apply to security contractors operating under military, State Department and civilian contracts.
If massacring civilians is one of those areas of legal mud, don’t expect any legal clarity for gassing American soldiers. The question, then, was whether laws applying to private contractors working for the Defense Department also apply to contractors working for the State Department. And although the military has brought charges against numerous official service personnel, they have brought none against private security contractors. Because whether or not mass murder is legal depends on who is doing the mass murdering, and for whom they work.