MELISSA GIAIMO
News Assistant
Dean Ken Starr of the Pepperdine University School of Law is representing Blackwater USA, a private military firm (PMF), in a suit filed by families of four Blackwater employees massacred in Iraq.
Blackwater is a PMF contracted by the the government to aid the “war on terror” in Iraq.
In March 2004 in Fallujah, four Blackwater employees were ambushed, their vehicle burned and their bodies mutilated and then were hanged over a bridge. In a lawsuit filed in January 2005 in the state court of North Carolina, the families of the victims sued Blackwater for violating its contractual obligation to provide their employees with the adequate personnel, armored vehicles and weapons to defend them properly when sent into Fallujah.
Starr made it clear that he is taking the case to resolve a question of jurisdiction between the state and federal courts.
“This is a case that involves a very narrow issue of judicial power: should a case be [tried] in state court or judicial court,” Starr said. “The issue is about the administration of justice not about the future of U.S. foreign policy.”
However, because of the controversy surrounding the government’s use of PMFs, not everybody approves of Starr’s decision to accept the case.
“Everyone … deserves legal representation,” said Dr. Robert Williams, associate professor of political science at Pepperdine and an expert in international law. “I would feel better, though, if Dean Starr weren’t the one providing that representation for Blackwater.”
Others note that the case has the potential to change U.S. policy in Iraq.
“This is not just a case about Congress’ intent and the matter of federal or state jurisdiction,” Williams said. “It’s a case about U.S. policy in Iraq.”
Starr would not comment on whether the government’s use of PMFs is appropriate.
“That’s a policy question and I’m not involved in that policy question,” said Starr.
Blackwater USA is one of 60 PMFs which together employ more than 20,000 personnel to carry out military operations in Iraq, according to Peter W. Singer, senior fellow and director of the Project on U.S. Relations with the Islamic World for the Saban Center for Middle East Policy. PMFs comprise the second largest force in Iraq. More than 647 private contractors died in Iraq between March 1, 2003, and Sept. 30, 2006, according to the Department of Labor.. But because private military contractors’ casualties do not appear on the Pentagon’s death toll lists, PMFs escape much public attention.
PMFs have played an important role in United States foreign policy since the 1990s, fulfilling roles previously reserved for the U.S. military, including combat, logistic and strategy services. PMFs allow the U.S. to sustain relatively lower troop numbers in Iraq. But if Blackwater loses the case, it may need to raise its prices to cover the cost of state lawsuits, and the government may no longer be able to rely on PMFs to help complete military tasks.
Because of the Bush Administration’s reliance on PMFs, someone in the Administration may have asked Starr to take the case, Williams said.
“Certainly, there are many in the [Bush] Administration who would like to see Blackwater represented as competently as possible,” Williams said. “The policy of using private contractors is being disputed in this case, and that policy is an important part of the Pentagon’s plan to stabilize Iraq.”
However, Starr rejects the suggestion of political motivation on his part. He said he is performing his duty of counsel for his firm Kirkland & Ellis and that his goal is to move the case from state to federal court. Starr sees it as his role to ensure that the case will be decided in the proper forum.
“Congress never intended for [the case] to go to the states,” Starr said.
Williams disagrees with Starr and believes the case belongs in state court, which has no cap on punitive damages.
“A move to federal court is going to dramatically weaken the chances of the families and the men who died to get anything like a just outcome,” Williams said.
Starr formally joined the case on Oct. 18. He lent his services as a Supreme Court expert by petitioning for a stay on the suit while preparing a writ of certiorari to move the case from state court to federal court. Chief Justice John Roberts denied Starr’s motion. The ruling reiterated the Fourth Circuit Court of Appeals’ decision in April to decline Blackwater’s appeal to move the case to federal court.
Because they operate outside of the command of the U.S. military and are not accountable to the Uniform Military Code of Justice, which governs soldiers’ behavior, some argue that the government should not use PMFs. These companies are governed by an ambiguous area of international law and some have received criticism for harsh treatment of Iraqis.
“The use of [PMFs] in combat is a serious problem from a legal standpoint and from a political standpoint,” Williams said. “Private contractors don’t wear a uniform and if they carry weapons in a war zone they have the same legal status as the insurgents we’re fighting.”
However, others believe PMFs perform a vital role in the war in Iraq.
“Having known people who work for Blackwater, it seems to me that [PMFs] do provide an important and good ancillary function to what the military is doing,” said John Napier, a first year student at Pepperdine’s School of Law.
Starr would not comment on whether the government’s use of PMFs is appropriate because he is exclusively concerned with the question of federal jurisdiction in regard to the case.
“He’s purposely saying that so he’s not taking a side,” said Kristi Matsunaka, a senior with a double major in international studies and political science at Pepperdine.
Matsunaka wishes that rather than defending Blackwater, Starr would help establish legal accountability for the PMFs.
However, Starr maintains that his role in the case only concerns “the vitally important question of our federal courts and our federal system.”
Starr says that he plans to file a writ of certiorari on or before Nov. 27 in the fight to move the case to federal court.
11-09-2006
