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Paul Kiel | October 31, 2007, 9:44AM

The State Department explores new frontiers of lawlessness.

Two days ago, the AP broke the story that the State Department had offered immunity to Blackwater guards for their statements following the September 16th Nisour Square shootings that left 17 Iraqi civilians dead.

The State Department didn't have an immediate reply to the story and seemed to be caught off guard. A "senior State Department official" told ABC that "If anyone gave such immunity it was done so without consulting senior leadership at State." Immunity? Who authorized such a thing?

But apparently such a move wasn't so unprecedented. In fact, it was "routine," reports the AP:

Limited immunity has been routinely offered to private security contractors involved in shootings in Iraq, State Department officials said Tuesday, denying such actions jeopardized criminal prosecution of Blackwater USA guards accused of killing 17 Iraqi civilians....

At the State Department, [State Department spokesman Sean] McCormack said "these kinds of issues are not new." He said Justice Department officials "can take steps to work around" any limited immunity agreements. "They provide limited protections that would not preclude a successful criminal prosecution," he said.

A second senior State Department official, speaking on condition of anonymity because of the ongoing inquiry, said the agency has for years required its security contractors to give written statements within hours of any so-called "use of deadly force" in Iraq.

Waivers granting a security worker limited immunity — by barring those statements in a criminal case against the worker — are a "routine part" of the investigations by the Bureau of Diplomatic Security, the official said.

So now the full scope of the lawlessness which State Department contractors in Iraq enjoy becomes clear. Not only do those contractors operate in a legal gray zone apparently beyond the reach of current law, but the State Department routinely offered immunity to guards involved in incidents in order to get their version of the story, making the prospect of prosecution all the more improbable.

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Paul Kiel | October 30, 2007, 9:53AM

With Rep. John Murtha (D-PA), what you see is what you get. He's the man who opined to The New York Times that "deal making is what Congress is all about" and called the Democrats' ethics reform bill "total crap."

And in today's profile in The Wall Street Journal, he's quoted telling an attendee at a fundraiser in Johnstown, his hometown, that bringing federal dollars there "is the whole goddamn reason I went to Washington."

And he's certainly done that:

Mr. Murtha has steered at least $600 million in earmarks to his district in the past four years, according to Taxpayers for Common Sense, a nonpartisan Washington group. The nonprofit group estimates he's sent $2 billion or more to the district since joining the appropriations committee....

His earmarks in the current bill are $166.5 million, more than any other House member, Taxpayers for Common Sense says. Mr. Murtha's spokesman did not dispute this year's total, but said without providing details that it is down by half from last year.

Of course, the important thing about those federal dollars (through defense appropriations) is that they go to his district -- certainly not whether the military wants or needs the programs that they fund. Murtha has proven something of a miracle worker, taking Johnstown from its low point in 1983 of 24% unemployment to its current healthy 5%. As John Wilke of the Journal puts it, "If John Murtha were a businessman, he'd be the biggest employer in this town." Wilke notes one Murtha-supported business in particular: "Another beneficiary: MTS Technologies, run by a man who got his start some 40 years ago shining shoes at Mr. Murtha's Johnstown Minute Car Wash."

You can take your pick as to which of Murtha's programs to pick on for waste or worthlessness, and Wilke chooses a few. But the recent firestorm over the National Drug Intelligence Center is a good case in point:

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Paul Kiel | October 29, 2007, 9:58AM

The doubts, the concerns, the reasons for pause about attorney general nominee Michael Mukasey are coming fast and furious from senators left and right these days.

It's been a steep descent from the heady days when Senate Judiciary Committee Chairman Patrick Leahy (D-VT) preceded Mukasey's confirmation hearings by saying, "I like him."

The tone seemed to first shift from one of friendly disagreement to frank disappointment with the question by Sen. Sheldon Whitehouse (D-RI): is waterboarding unconstitutional? When Mukasey couldn't give a straight answer, Whitehouse pronounced himself "very disappointed."

Mukasey's dodge was transparent. Waterboarding was unconstitutional if it rose to the level of torture. And as an explanation for that "massive hedge," as Whitehouse called it, he professed not to know "what's involved in the technique."

Five days later, the Democrats on the committee signed a joint letter to Mukasey, making sure that he knew what's involved, and demanded an answer to the question as to whether waterboarding is torture.

Then two days later, the doubts grew louder. Two key Democrats, Senate Judiciary Committee Chairman Patrick Leahy (D-VT ) and Sen. Dick Durbin (D-IL) both said publicly that their votes depended on Mukasey's answer to the waterboarding question.

Then it was Sen. John McCain (R-AZ) who saw an opening after Rudy Giuliani refused to call waterboarding torture ("It depends on who does it."). Most certainly it's torture, McCain said. When pressed, he stopped short of saying that he would oppose Mukasey's nomination if he didn't say the same, but he added to the chorus of those who professed to be interested in what Mukasey's answer to follow-up questions will be.

Yesterday, Sen. Lindsay Graham (R-SC) said that if Mukasey "does not believe that waterboarding is illegal, then that would really put doubts in my own mind."

Rep. Arlen Specter (R-PA) has also thrown in his lot of doubts and concerns.

So it would seem that virtually every senator on the judiciary committee, with the exception of its most conservative members, is eagerly awaiting Mukasey's answer on the waterboarding question -- an answer which he has already given. And given the contours of that answer, it's improbable that he will give any other.

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Paul Kiel | October 26, 2007, 9:46AM

If you're a corrupt pol looking for lessons in the Duke Cunningham story, you've found dozens. Don't make a bribe menu, first and foremost. But it's also probably not a good idea to shoot a video of your Hawaii vacation with your (alleged) briber.

Prosecutors entered the following 90-second video into evidence last week during the trial of Brent Wilkes. In it, you can see Wilkes, his nephew Joel Combs (who's testifying against his uncle), and Duke himself silently weaving in and out of coral reefs. And one diver, just to drive home who the trip was all about, is swimming around with a large rock with "DUKE" on it. You can see him in the image above handing it to the man himself.

Ah, the memories. Seth Hettena, the author of a book on Cunningham, Feasting on The Spoils, posted the video on his blog, where he's been covering the trial:

Duke lumbers into view at about the fifty second mark. And of course that's Wilkes at the end there, suddenly bursting out with "Bali Hai!" on the deck of the boat. This is the same guy known at his company for suddenly yelling "Boom shaka laka!" and "Yeah, baby!" when he got good news (like, say, Duke had delivered millions in earmarks). Not so hard to imagine.

This is the same 2003 trip, of course, where Wilkes treated Duke to prostitutes on two consecutive nights. At least they had the good sense not to add a "Goofing Around in A Hot Tub" section to the vacation video.

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Spencer Ackerman | October 25, 2007, 9:06AM

If Blackwater seems to have a bunker mentality, there are some ready explanations. First, the company has a lot to answer for. Second, it's got a relentless inquisitor on its heels. And not to be forgotten: in Iraq, at least, its employees (sorry, "independent contractors") actually live in a bunker.

Paul von Zielbauer and James Glanz of The New York Times provide a fascinating glimpse into the maze of stacked trailers that comprise Blackwater's Green-Zone compound. It says a lot that the compound is surrounded by 25-foot high concrete barriers topped with razor wire inside the safest place in Iraq: denizens liken it to a minimum security prison. Outside is the enemy. Not merely insurgents, infuriated Iraqis, and disdainful Iraqi government officials, but frustrated U.S. troops, unreliable diplomats and FBI inquisitors delving into the company's mistakes in last month's Nisour Square shootings.

The bunker mentality, however, may be dissipating. Some Blackwater officials were openly critical of the company's actions to the Times reporters:

“Some guys are thinking that it was not a good shoot, that it was not warranted,” said one Blackwater contractor, using military jargon for an episode that results in a wrongful death. “I don’t think there was criminal intent involved. I just think it was the application of the use of deadly force gone horribly wrong.”

He added, “To mitigate one threat, 17 people had to die?”

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Spencer Ackerman | October 24, 2007, 9:03AM

Seriously this time: Ambassador Patrick Kennedy has unveiled his recommendations on the State Department's relationship with security contractors DynCorp, Triple Canopy and Blackwater. They represent a step back from Defense Secretary Bob Gates' reported suggestion that the military take control of State's security contractors and instead emphasize greater oversight of the existing system.

The Washington Post reports that Kennedy concluded that there's no alternative to contracting security for U.S. diplomats. The military doesn't consider that mission "feasible or desirable," preferring to actually fight the war. That leaves bolstering oversight as the department's option -- something that's been sorely lacking, as Special Inspector General for Iraq Stuart Bowen found. Bowen released a report yesterday finding that only seventeen State Department officials oversee the hundreds of security contractors working on a billion-plus dollar contract to train the Iraqi police -- and, earlier this year, that oversight office consisted of a whopping two people.

As spoofed yesterday, Kennedy's recommendations do include cultural-awareness training. But more substantively -- and significantly for the contracting industry -- Kennedy recommended that State begin a dialogue with the Justice Department and Congress to clarify the legal rules under which contractors operate overseas. That contradicts both Blackwater CEO Erik Prince, who has repeatedly that he has a clear "understanding" of his company's legal responsibilities, and George W. Bush, who has threatened to veto a House measure passed earlier this month that allows alleged contractor misdeeds overseas to be tried in U.S. courts. "We don't see the clarity here," Kennedy told reporters.

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Spencer Ackerman | October 23, 2007, 9:10AM

Ambassador Patrick Kennedy has finally delivered his assessment of the State Department's relationship with security contractors in Iraq to Condoleezza Rice. Behind closed doors yesterday, the ambassador, who was tasked with making a comprehensive review of State's contractors following the Nisour Square shooting, told the secretary of state that there were serious problems "with virtually every aspect of the department’s security practices, especially in and around Baghdad, where Blackwater has responsibility," reports The New York Times.

Combined with today's report from Stuart Bowen, the special inspector general for Iraq reconstruction, that finds an "environment" conducive to waste and fraud in the oversight of DynCorp's $1.2 billion Iraq contract, it's easy to see why one State Department official told the paper that the department's contracting process is caught in "a perfect storm of bad events."

Among Kennedy's recommendations is to create a "special coordination center" with the U.S. military to ensure that contractor movements within a military commander's area of operations don't conflict with the commander's orders. It's unclear whether that means the military would actually control contractor operations, as Defense Secretary Bob Gates is reportedly considering, but it would move Blackwater, DynCorp and Triple Canopy contractors out of the exclusive control of the State Department for the first time. When Gates returns from his European trip, he and Rice will discuss the future of State contractors in Iraq.

In a great understatement, Kennedy also recommends closer coordination with the Iraqi ministries:

“They don’t have the right communications, they don’t have the right procedures in place, and you’ve got people operating on their own,” said one official who has been briefed on the report but who spoke on the condition of anonymity because it has not been released yet. “This is not up to the degree it should be.”

And, needless to say, they're also vulnerable to being murdered by drunken Blackwater contractors during rip-roaring Green Zone Christmas parties.

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Spencer Ackerman | October 22, 2007, 9:08AM

How did Blackwater end up guarding U.S. diplomats in Iraq? The answer's becoming clearer.

The Washington Post reported yesterday that the State Department, under the gun to create an embassy security staff after the Coalition Provisional Authority disbanded in June 2004, decided to stick with the CPA's Blackwater bodyguards, awarding the firm a no-bid contract. That much State Department logistics official William H. Moser told Congress earlier this month. But the Post supplies a wealth of detail about just how dependent State is on security contractors for conducting diplomacy in war zones.

State's diplomatic security service (DS) is too small to protect the hundreds of U.S. embassy personnel in Baghdad: only 1400 agents exist to operate in over 300 diplomatic offices domestically and abroad. That's just barely more than the 1000 or so Blackwater operatives in Iraq alone. Little wonder that last month, the company received another $112 million contract for Iraq security, which surges the number of Blackwater guards by over 200 and expands its helicopter fleet.

In previous conflicts -- Vietnam, for instance -- U.S. diplomats were guarded by U.S. soldiers. But the U.S. sent up to a half million troops during the Vietnam war, supplied by a draftee military. With the end of the draft and subsequent troop reductions, State had to turn to the dawning security-contractor industry, first hiring former industry leader DynCorp to protect Jean-Bertrand Aristide when the U.S. returned him to power in Haiti in 1994. Instead of expanding DS personnel or arguing that diplomatic security was a job for the U.S. military, State took the easier route of purchasing it on the (not always) open market. That was a choice that suited Defense Secretary Donald Rumsfeld well, as Rumsfeld believed the military had more important work to do. By 2002, Blackwater was on the ground in Afghanistan, guarding Hamid Karzai.

One lingering question is how Blackwater managed, in only 10 years of existence, to top former security-industry giants DynCorp and Triple Canopy in Iraq and elsewhere. Erik Prince, Blackwater's CEO, insists that the company hasn't benefited from his family's deep GOP connections. The piece doesn't exactly answer that question. But it does reveal that Blackwater has learned that sometimes it pays to get the competition on its side:

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Spencer Ackerman | October 19, 2007, 9:06AM

As expected, the Senate intelligence committee has passed its surveillance bill. Also as expected, retroactive legal immunity for telecommunications companies complying with President Bush's warrantless surveillance program is part of the bill. Not exactly as expected: it won't be the FISA Court that determines who complied with the program. It will be the attorney general:

The Senate bill would direct civil courts to dismiss lawsuits against telecommunications companies if the attorney general certifies that the company rendered assistance between Sept. 11, 2001, and Jan. 17, 2007, in response to a written request authorized by the president, to help detect or prevent an attack on the United States.

Suits also would be dismissed if the attorney general certifies that a company named in the case provided no assistance to the government. The public record would not reflect which certification was given to the court.

So you'll never know, if the Senate bill becomes law, if your phone company gave any communications material when the National Security Agency came calling without a warrant. Prediction: as of January 2009, Michael Mukasey can have any sinecure he likes with the telecom company of his choice. (Well, maybe not Qwest.)

In addition to the telecom provision, the bill also doesn't give the FISA Court any up-front role in foreign-targeted surveillance, unlike the Dems' now-stalled Restore Act in the House. It seems from this early report that the bill's major difference with the Protect America Act is that the FISA Court will have a larger role in reviewing the government's so-called minimization procedures -- that is, how NSA analysts redact identifying information of U.S. persons caught up in the surveillance web. For this, remarked Sen. Jay Rockefeller (D-WV), chairman of the intelligence committee, "FISA has a much larger role now."

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Spencer Ackerman | October 18, 2007, 9:23AM

If you liked the Protect America Act -- President Bush's sweeping revision to the Foreign Intelligence Surveillance Act signed into law in August -- you're going to love the soon-to-be-unveiled surveillance bill from the Senate intelligence committee. President Bush and Admiral Mike McConnell do, at least. A day after the White House made available to the committee "millions" of pages of material documenting how the telecommunications industry complied with warrantless requests for Americans' international communications after 9/11, the committee wrote into its bill a provision granting the industry retroactive immunity from customer lawsuits that the White House has long desired.

It's unclear what else the bill will contain. The House Democratic surveillance measure that Republicans blocked yesterday allowed for non-individualized court orders approving surveillance of targets "reasonably believed" to be outside the U.S. and possessing "foreign intelligence information," a provision that has divided civil libertarians. That measure is too restrictive to the Bush administration, which wants all foreign-directed surveillance outside the purview of the FISA Court, even in cases where foreigners call into the United States. Until the Senate bill is released today, it won't be clear whether there's a prior-review role for the court in foreign-directed surveillance.

But on the most contentious aspect of the debate -- retroactive legal immunity for telecommunications companies cooperating with the Bush administration -- the Senate has apparently justified the ACLU's worst fears. Here's what The Washington Post, citing congressional sources, reports about how the immunity will work:

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

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Spencer Ackerman | October 17, 2007, 9:15AM

It took a catastrophe that some say may ultimately prove "worse than Abu Ghraib," but finally the administration is thinking long and hard about oversight of security contractors in war zones. Bob Gates has a simple plan: put them under Defense Department control.

The New York Times reports this morning that the defense secretary, who shortly after the Nisour Square shootings pronounced himself dissatisfied with the apparent impunity exercised by private-security firms, wants a single, unified authority overseeing all security companies in Iraq and Afghanistan. It's not clear if the military would exercise command authority over security contractors -- something some ex-contractors support -- under Gates' nascent plan. But the State Department isn't so hot on relinquishing control over the contractors, like Blackwater, that guard its diplomats:

That idea is facing resistance from the State Department, which relies heavily for protection in Iraq on some 2,500 private guards, including more than 800 Blackwater contractors, to provide security for American diplomats in Baghdad. The State Department has said it should retain control over those guards, despite Blackwater’s role in a September shooting in Baghdad that exposed problems in the current oversight arrangements.

In practical terms, placing the private security guards who now work for the military, the State Department and other government agencies under a single authority would mean that those armed civilians would no longer have different bosses and different rules. Pentagon advisers say it would also allow better coordination between the security contractors and American military commanders, who have long complained that the contractors often operate independently.

Gates is still making up his mind over how changes in contractor oversight should work. One as-yet-unresolved issue is whether additional legal clarification is needed to ensure that contractors don't operate in legal black holes:

Some military commanders in Iraq favor using the Uniform Code of Military Justice, a system they know well and trust. Other Defense Department officials support the model being considered by Congress, which would make clear that the Military Extraterritorial Jurisdiction Act would extend federal law to civilians supporting military operations.

The Times reports that Gates and Rice haven't spoken about the issue yet, as Rice is traveling in the Middle East. But apparently Gates is prepared to make a strong push for total DOD control over contractors: the paper says he's willing to go to President Bush directly for a decision.

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Spencer Ackerman | October 16, 2007, 9:25AM

Just in time for this week's Senate intelligence committee's fight over telecom immunity: Verizon disclosed to three Democratic lawmakers that it turned over subscriber information, such as IP addresses or phone records, to the FBI in emergency situations more than 720 times. In making such warrant-free demands of Verizon -- and surely other telecommunications companies -- the FBI wanted not just information on whom the target of its investigation contacted, but also the people whom the contacts contacted.

That's called "community of interest" information. Last month, The New York Times reported that the FBI has suspended seeking such data pending an inspector general's investigation into the use of national security letters. Verizon did not comply with the community-of-interest request, but only because it doesn't store such information. Presumably other telecom providers -- who did not respond to Congressional requests for details about their compliance with the FBI -- do. (Verizon would only discuss what it disclosed to the FBI, not anything having to do with warrantless NSA surveillance. And the relationship between those agencies' surveillance programs is still a big unknown.) Quick, has anyone you know emailed anyone who's called Pakistan lately?

These warrant-free disclosures concerned not just potential terrorism, but also child-predator and kidnapping cases -- what The Washington Post calls "a range of investigations." Lawyers for AT&T and Verizon told House Democrats John Dingell (D-MI), Ed Markey (D-MA) and Bart Stupak (D-MI) that they typically comply with the emergency requests expeditiously, trusting that the FBI is acting legally:

AT&T and Verizon both argued that the onus should not be on the companies to determine whether the government has lawfully requested customer records. To do so in emergency cases would "slow lawful efforts to protect the public," wrote Randal S. Milch, senior vice president of legal and external affairs for Verizon Business, a subsidiary of Verizon Communications.

"Public officials, not private businessmen, must ultimately be responsible for whether the legal judgments underlying authorized surveillance activities turn out to be right or wrong -- legally or politically," wrote Wayne Watts, AT&T's senior executive vice president and general counsel. "Telecommunications carriers have a part to play in guarding against official abuses, but it is necessarily a modest one."

You can read Verizon's letter to the three Democrats here (pdf). AT&T's is here (pdf), and a third, from Qwest, is here (pdf).

Expect oversight of FBI national security letter and exigent letter requests to play a large role in tomorrow's confirmation hearing for Attorney General-designee Michael Mukasey. And that's not all: on Thursday the Senate intelligence committee will mark up -- in secret, says the ACLU -- its version of FISA reform. Civil liberties groups already fear that the Senate bill contains retroactive telecom immunity. We'll soon see whether Verizon's disclosures give senators pause.

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Spencer Ackerman | October 15, 2007, 9:10AM

Blackwater's once-reclusive Erik Prince has launched a PR offensive, bringing the press to the private-security firm's Moyock, N.C. compound and showing up on TV chat shows. (More on that in a moment.) The strategy is clear enough: Prince wants to debunk Blackwater's image as out-of-control mercenaries in the wake of the Nisour Square shootings. And that's because Prince is prepping his company for even more lucrative contracts than the billion dollars Blackwater has received from the U.S. government since 9/11. As The Wall Street Journal reports today, Prince is looking to take on the biggest defense contractors in the country.

According to the Blackwater founder and CEO, private security -- guarding U.S. personnel in war-torn countries, as Blackwater does in Iraq -- shouldn't be what defines the company. "We see the security market diminishing," he told the paper. Instead, Blackwater wants to grow its training and logistics work, placing Blackwater in the center of what the WSJ terms "missions to which the [U.S. military] won't commit American forces." For example, Blackwater recently outbid Lockheed Martin, Northrup Grumman and Raytheon for a five-year, $15 billion contract to "fight terrorists with drug ties." Get ready to see a lot of Blackwater in Colombia.

Signs of Blackwater's expansion -- even amidst the Nisour Square controversy -- are evident, the paper reports:

The company has a fleet of 40 aircraft, including small turboprop cargo planes that can land on runways too small or rough for the Air Force. The company's aviation unit has done repeat business with the Defense Department in Central Asia, flying small loads of cargo between bases.

Also in the North Carolina compound: an armored-car production line that Mr. Prince says will be able to build 1,000 of the brutish-looking Grizzly vehicles a year. The project arose out of a need for Blackwater to protect its security convoys in Iraq. Drawing on Mr. Prince's family history in the automotive industry, Blackwater made sure that the vehicles are legal to drive on U.S. highways.

Mr. Prince bought a 183-foot civilian vessel that Blackwater has modified for potential paramilitary use. Mr. Prince sees the ship as a possible step into worlds such as search-and-rescue, peacekeeping and maritime training.

It's not clear whether Blackwater would seek, or get, private-security roles in its Defense Department contracts akin to those it has from the State Department in Iraq. Nor is it clear how exactly Blackwater managed to beat such established defense giants for the narco-terrorism contract.

But it is looking more like Blackwater might actually be kicked out of Iraq. For the first time since the shootings on September 16, U.S. and Iraqi officials are seriously negotiating the company's expulsion. Evidently, Prince is preparing for such a loss by fighting Blackwater's reputation in the court of public opinion -- and then laying the ground for much, much bigger things.

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Spencer Ackerman | October 12, 2007, 9:18AM

That's one way to placate the National Clandestine Service. CIA Director Michael Hayden is going after the agency's independent watchdog, Inspector General John Helgerson. Hayden wonders if Helgerson -- who is not appointed by the CIA director -- hasn't gone too far in investigating how the agency conducts detentions and interrogations.

Helgerson has for years been perceived as overly aggressive in reviewing CIA techniques in the war on terrorism. In 2004, he produced an internal report that seemed to say that Department of Justice-approved interrogation techniques employed by the CIA amounted to torture. That report was part of a series of internal administration moves contributing to uncertainty among interrogators and senior officials about what was legally permissible. Some in the NCS -- the agency's undercover operatives -- have purchased legal insurance to guard against the possibility that they will one day face criminal charges for putting administration-approved practices into place. In short, many in the CIA think Helgerson is out to get them.

According to the Los Angeles Times, the investigation has grown out of an effort by Hayden months ago to explore a "friction" that had emerged between Helgerson's office and that of the CIA general counsel, which also has lent its legal imprimatur to CIA interrogations and detentions, after the general counsel's office believed Helgerson was improperly second-guessing its advice. But the investigation, headed by Hayden confidante Robert L. Deitz, is now a full-fledged exploration of how Helgerson conducts his work. It comes as Helgerson is "nearing completion" on several reports into interrogations, renditions, and detentions, reports The New York Times.

In investigating Helgerson, Hayden is probably taking steps to assuage what by all accounts is an NCS plagued with legal confusion. Both the LAT and the NYT describe the investigation as "unusual" if not "unprecedented." Hayden's spokesman told both papers that the director is simply out to "help this office, like any office at the agency, do its vital work even better."

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Spencer Ackerman | October 11, 2007, 9:38AM

Blackwater and the State Department say one thing -- namely, that Blackwater guards were under attack by Iraqi insurgents at Nisour Square on September 16. The Iraqi government and the U.S. military say another: Blackwater didn't come under fire on that fateful day, and instead used deadly force against a misperceived threat. So as a joint U.S.-Iraqi investigation gets underway, maybe it shouldn't come as a surprise that the Iraqis and the U.S. military feel shunted aside by a hard-charging State Department and its FBI allies.

The New York Times reports that the joint inquiry, with the predominant U.S. component coming from the military, hasn't had access to initial State Department reports (at least one of which was written by Blackwater), nor has it had access to a separate investigation into the incident that State asked the FBI to lead. Furthermore, the military has neither been allowed to interview the four Blackwater guards at Nisour Square, nor been allowed to inspect the vehicle that they drove. That last point is crucial: examining the vehicle would easily determine whether any ballistic damage to it resulted from the kinds of weapons Iraqis typically fire or the sort that Blackwater is issued, which probably aren't the same. (There was another Blackwater convoy on the opposite end of the square.)

There's been a fair amount of friction over the past year between the Iraqi government and the U.S. military. But when it comes to the Blackwater investigation, they appear united in frustration.

“We haven’t received any information from the Americans about their own two investigations,” [a] senior Iraqi investigator said. “F.B.I. investigators have asked us to help them and share our information, as they have started a third investigation.”

[A] senior American military officer said the State Department had also refused to provide details of its investigation. “We have asked questions,” the official said. “They have not responded back on those.” Both the Iraqi investigator and the American military officer spoke on condition of anonymity because neither was authorized to discuss the investigations publicly.

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Paul Kiel | October 10, 2007, 9:53AM

The $525,000 payment on Duke Cunningham's mortgage, the Sea-Doo Speedsters, the thousands of dollars of meals, the prostitutes, $12,000 worth of furniture... there's an "innocent explanation" for all of this, Brent Wilkes' lawyer Mark Geragos told a jury in his opening statement yesterday. Or as he put it himself: "Every single one of these transactions they're alleging is a bribe has an innocent explanation they don't want you to hear." By our count, that would be at least a couple dozen innocent explanations. And, boy, do we want to hear.

So it seems that Geragos is really going for the gold. Wilkes was just another defense contractor trying to make a living, he'll argue, and prosecutors have arbitrarily focused on him. Why? As Geragos argued: "You're going to find that everyone's got a little ax to grind here, not least the government, who seem to want to make this a referendum on how Washington works." More than $700,000 worth of gifts and payments in, $90 million in defense contracts out. That's how Washington works. And Geragos aims to prove it. Don't forget that he's already issued subpoenas to a dozen members of Congress, with special focus on five sitting lawmakers in particular.

From the opening statement, it's evident that another strategy of Geragos' will be to cast Mitchell Wade as the real bad guy here, relying, it seems, on Cunningham's semi-literate letter from prison to Marcus Stern, the reporter who broke the story. In that letter, other than complaining that Stern always focused on the bribery and not on the good things that Cunningham had achieved in his career (like "Library Man of the Year"), Cunningham announced that "truth will come out and you will find out how liablist [sic] you have & will be." It was a stirring example of denial. And the root for how it all went wrong, Cunningham argued, was that "absolute devil" Mitch Wade.

Of course, Cunningham's anger might have had a lot to do with the fact that Wade had been the first to go to the feds. And in a subsequent interview with the FBI, Cunningham gave a different story, detailing how he and Wilkes had hid various bribes in order not to arouse suspicion.

But that's Wilkes' story, and he's sticking to it. And he says that if prosecutors don't haul Cunningham out of jail to testify, then he's going to do it himself.

Let the show begin.

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Paul Kiel | October 9, 2007, 9:45AM

Call it a deal with the devil, but the House Democrats are set to offer compromise legislation that would allow the administration to conduct warrantless surveillance. The trade-off seems clear.

The bill would allow so-called "umbrella" warrants from the FISA Court for what The New York Times calls "bundles of overseas communications." That umbrella would last for up to one year and is meant to extend to communications into and out of the United States. If the "target" was in the U.S., however, the administration would have to seek an individualized warrant from the court. The bill would also make clear that foreign to foreign communications do not require a warrant. The Times helpfully explains that the Dems "remain nervous that they will be called soft on terrorism if they insist on strict curbs on gathering intelligence."

In return, the Democrats would get some transparency goodies. Four times a year, the Justice Department's inspector general would perform an audit of the program. And the Department would be required to maintain "a database of all Americans subjected to government eavesdropping without a court order, including whether their names have been revealed to other government agencies."

What the bill doesn't include, much to the administration's chagrin, is retroactive immunity for all the telecoms that (allegedly) helped the administration conduct warrantless surveillance during all the years the program remained secret. Perhaps that's because the administration has still, despite a Congressional subpoena, not handed over documents showing the legal basis for the program. And it remains unclear if they will. The Washington Post reported this weekend that the White House told Congress Friday evening that "it would put together that information by Oct. 22 but would not say when or whether it would make the information available to lawmakers."

Dems in the Senate, however, might give the administration its precious immunity anyway. Senate Intelligence Committee Chairman Jay Rockefeller (D-WV) is working away on his own version of the bill, and apparently retroactive immunity might be part of the package.

Civil libertarians, of course, are unhappy with the Dems' bill -- though not as distraught as they were over the Protect America Act. And even the Dems are subdued, with liberals like Rep. Jerrold Nadler (D-NY) saying that “It is not perfect, but it is a good bill."

But the hope appears to be that Dems can confidently tout the "Responsible Electronic Surveillance That is Overseen, Reviewed and Effective Act of 2007" -- or RESTORE Act -- as the Not as Bad as The Protect America Act (I guess that would be NaBaPAA). And hope that the bill is strong enough that Republicans and the administration aren't able to pull a repeat of August's debacle.

Update: Here's a summary of the bill provided by Conyers.

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Spencer Ackerman | October 8, 2007, 9:22AM

The Blackwater security detail at Nisour Square on September 16 didn't just commit a "crime," as Iraqi Prime Minister Nouri al-Maliki initially said. It committed murder, according to the Iraqi government's official account of the incident.

Ali al-Dabbagh, Maliki's spokesman, told reporters yesterday that Blackwater was guilty of "deliberate murder" when its guards fired upon the square, leaving 17 civilians killed. Dabbagh said the judgment was the verdict of the Iraqi government's investigation into the shootings, which are also under review by a joint American-Iraqi panel. Those investigators met for the first time over the weekend.

Both the Iraqi investigation and initial U.S. military reviews have found that Blackwater did not come under small-arms fire at the square, contradicting the company's account of Iraqi insurgents provoking the attack. Iraqi Defense Minister Abdul Qader Mohammed Jassim told The New York Times that "Not even a brick was thrown at them." Blackwater continues to deny wrongdoing -- let alone illegality -- and urges judgment be suspended until all inquiries are complete.

Dabbagh, however, was disinclined to accept the company's admonishments: the shootings were "a deliberate crime against civilians" that should be "tried in court." The Iraqi investigation would seem to support that conclusion.

In previously undisclosed details in the government’s final report, the Iraqi police documented that Blackwater guards shot in almost every direction, killing or wounding people in a near 360-degree circle around Nisour Square.

The thick file amassed for the investigation asserts that bullets reached bystanders who were as far as 200 feet away and nearly on the opposite side of the square.

The police investigation also shows that a second shooting, in which one person was killed and two wounded, occurred about 600 feet from the initial one on the opposite side of the square, along the departure route that the Blackwater team took from the first shooting.

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Spencer Ackerman | October 5, 2007, 9:32AM

While the State Department has frequently covered for Blackwater, particularly over the Nisour Square incident, the military has tended to be more candid. "It may be worse than Abu Ghraib," a senior officer said last week, at a time when diplomats were, at most, conceding "there's an issue here" and urging calm in the aftermath of the shooting. That shouldn't be surprising: after all, it's the 160,000 troops in Iraq who suffer by association with reckless contractors.

Now, after Blackwater got off lightly at a Congressional hearing Tuesday -- in which Nisour Square was not explored -- the military is pressing the point harder. U.S. military reports from the scene at Nisour Square, separate from the initial Blackwater-penned "first blush" inquiry, portray Blackwater guards as out of control and trigger-happy, firing on Iraqi civilians and Iraqi security forces almost indiscriminately. "It was obviously excessive, it was obviously wrong," a U.S. military official tells The Washington Post.

The most significant new detail added by the U.S. military account about the chaos at Nisour Square on September 16: Contrary to Blackwater's frequently-repeated account, no Iraqi civilian or policeman fired upon its guards. The small-arms fire was, in other words, all coming from the contractors.

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Spencer Ackerman | October 4, 2007, 9:23AM

Some farces, it turns out, can be avoided. The FBI team traveling to Iraq at the behest of the State Department to assist in the investigation of Blackwater's September 16 shooting at Nisour Square was supposed to be guarded by... Blackwater. (Shades of Darrell Issa's threat hover over that one.) However, the State Department's Bureau of Diplomatic Security realized yesterday that the ensuing conflict of interest would be just too egregious.

Under Blackwater's State Department contract, the company provides security for all official travel outside the U.S.-protected Green Zone. State Department spokesman Sean McCormack said that security for the team would be handled by the department's Diplomatic Security Service.

Of course, the DSS needed a bit of prompting, which is perhaps to be expected after chief Richard Griffin's vigorous defense of Blackwater on Tuesday. In a letter, Sen. Pat Leahy (D-VT) urged (pdf) Condoleezza Rice to step back from the precipice of absurdity.

But other absurdities linger.

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Spencer Ackerman | October 3, 2007, 9:32AM

It was a major talking point for Erik Prince at yesterday's Blackwater hearing: Blackwater contractors discharged their weapons during only about one percent of the 16,000 missions they've undertaken since 2005. Relying on his company's statistics, Blackwater owner/CEO pointedly told the House oversight committee that his contractors fired their guns an average of 1.4 times a week, a discharge rate hardly befitting the company's reputation for recklessness.

Prince may have accurately reported his company's weapons-discharge statistics to the committee. But, reports Steve Fainaru in The Washington Post, contract employees for private-security companies in Iraq, including Blackwater, frequently under-report how many often they open fire.

[T]wo former Blackwater security guards said they believed employees fired more often than the company has disclosed. One, a former Blackwater guard who spent nearly three years in Iraq, said his 20-man team averaged "four or five" shootings a week, or several times the rate of 1.4 incidents a week reported by the company. The underreporting of shooting incidents was routine in Iraq, according to this former guard.

"The thing is, even the good companies, how many bad incidents occurred where guys involved didn't say anything, because they didn't want to be questioned, or have any downtime today to have to go over what happened yesterday?" he said. "I'm sure there were some companies that just didn't report anything."

Defense and State Department officials conceded that the terms of most contracts require the security firm to report their shooting incidents, but in practice, few comply. The apparent silence among contractors has led to a lack of understanding by the U.S. about the true rates of contractor violence in Iraq. Last year, for instance, officials with the Army Corps of Engineers grew concerned that their bodyguards from Aegis, a British-run firm, had turned "out of control" because of their high numbers of reported shootings. But a closer look determined that Aegis only appeared trigger-happy because of its high pace of operations and under-reporting by its competitors. Functionally, whether or not contractors tell responsible officials in the State or Defense Departments about their shooting incidents "is up to them," according to an ex-ACE program manager.

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Paul Kiel | October 2, 2007, 9:48AM

When Blackwater CEO Erik Prince marches up to the Hill for a hearing today, he's sure to be confronted a portrayal of his guards as trigger-happy, remorseless, greedy mercenaries -- or as one former Blackwater employee put it, "lazy f**ks [who] care about one thing, money."

Prince's response, as indicated by his prepared statement (pdf), is to counter that with an image of U.S. military men and women "volunteering" to serve their country (although for a pot of money):

Under the direction and oversight of the United States Government, Blackwater provides an opportunity for military and law enforcement veterans with a record of honorable service to continue their support to the United States. Words alone cannot express the respect I have for these men and women who volunteer to defend U.S. personnel, facilities, and diplomatic missions. I am proud to be here today to represent them.

And countering Henry Waxman's numbers, Prince defends Blackwater's performance with his own numbers. Waxman's House oversight committee report showed that Blackwater had been involved in 195 "escalation of force" incidents since 2005, an average of 1.4 shooting incidents per week. From January 2005 to April 2007, Blackwater employees used their weapons 168 times. Waxman also reported that, in 80 percent of those incidents, Blackwater fired first.

Prince offers a different metric: in 2007, his guards have opened fire during only 56 of the their 1,873 security details for diplomatic visits outside the Green Zone. That's "less than three percent of movements," he says. (Think of all the times they didn't shoot.) As to what percentage of those incidents had Blackwater guards firing first, he doesn't say. Thirty Blackwater guards have been killed in Iraq, he says.

And, of course, Prince offers a version of the September 16th Mansour incident. According to the Iraqis, the Blackwater fired first, after a car didn't slow down enough at a traffic stop. In Prince's telling, the Blackwater guards came under fire first and from a variety of attackers (men toting AK-47s and "approaching vehicles that appeared to be suicide bombers"), some of whom "appeared to be wearing Iraqi National Police uniforms, or portions of such uniforms. Only five of the twenty Blackwater guards at the scene that day fired their weapons, Prince says. Based on "everything we currently know," he concludes, "the Blackwater team acted appropriately while operating in a very complex war zone in September 16."

The hearing starts at 10 this morning; we'll be providing running updates throughout.

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lkmcgann | October 1, 2007, 9:46AM

Just when you think you've heard the most outrageous of Alaska earmarking shenanigans, news breaks that Sen. Ted Stevens clarified, via email,
that a $3 million earmark was meant to be handled by his personal friend and big-time campaign contributor, Bob Penney.

The Anchorage Daily News reports that in 2004, state officials were puzzled by a line buried in an appropriations bill: "$2 million is for the Kenai River; $1 million for the Russian River."

When state officials asked Stevens to clarify, his office replied with a simple email: "The $2 million for the Kenai River; and $1 million for the Russian River go to Bob Penny [sic]." Then it listed the phone number of a company founded by developer Bob Penney. That's $3 million in taxpayers' money.

The ADN reports that Penney's club, the Kenai River Sportsfishing Association, was the supposed intended recipient. Some environmentalists, unsurprisingly, argue the group shouldn't be handling preservation projects. A few fishermen and a retired biologist, Ken Tarbox, recently formed their own group, the Kenai Area Fisherman's Coalition, and wrote to the governor on Sept. 14 complaining about the earmark process saying it is unethical and possibly illegal. Tarbox argues the state should direct conservation projects, not Penney's group.

It shouldn't come as a surprise that Penney got such special treatment. Penney, you may recall, brought Stevens in on a Utah land deal that turned a $15,000 investment into $125,000 in just twelve months -- the same year the $3 million earmark appeared. Penney told The Anchorage Daily News at the time that he and his fellow investors invited Stevens in "appreciation for all he's done for Alaska and the country. We respect him very, very much."

Penney is also the colorful character who co-hosts a $1 million fundraiser with Stevens on the Kenai River each year where powerful politicians, heads of major corporations and lobbyists meet up for cigar-smoking, drinking and influence swapping. The Anchorage Daily News heard Stevens describe the event in 2002:

''We invite people we think can afford to put a contribution into the till,'' [Stevens] said, ''and people they want to meet.''

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