Scahill: Setback for Iraqis' suit against Blackwater actually a victory

Five war crimes suits filed by Iraqis against the private security firm Blackwater will be allowed to continue after lawyers for the mercenary group petitioned to have them dismissed.

U.S. District Judge T.S. Ellis III ruled on Wednesday that the suits would be dismissed, but he is allowing the plaintiffs to refile on the condition that they make specific claims and present evidence that Blackwater -- now known as Xe -- perpetuated a "culture of lawlessness" that led to indiscriminate murder and beatings.

The Nation magazine's Jeremy Scahill, one of the media's foremost experts on the private security firm, told Democracy Now! host Amy Goodman on Friday that the ruling was actually quite good for the Iraqis and the mainstream press had gotten the story completely wrong.

The ruling is "a very well-thought-out legal argument by Judge Ellis, where he’s essentially saying to Blackwater, 'Your argument that you can’t be sued as a private company under the Alien Tort Statute is false. Your argument that private individuals or companies cannot commit war crimes is false,'" Scahill said.

"Xe's lawyers had argued that the lawsuits should be dismissed under any circumstances because the allegations involve political questions that cannot be resolved by the judiciary and because private entities cannot be sued under the Alien Tort Statute," the Associated Press noted Wednesday. "[Judge] Ellis rejected those arguments."

Yet, the AP's headline focused upon the suits being tossed, not the affirmation mentioned by Scahill.

"What he did do, though, is he referenced a Supreme Court decision in May, Ashcroft v. Iqbal, which really reversed decades of case law and made it very, very difficult, more difficult, for plaintiffs to have their cases moved to the trial phase," he continued. "In other words, the bar was set much higher to proceed to trial. So what the judge said to Susan Burke and the Center for Constitutional Rights, the lawyers representing these Iraqis, 'You need to re-file your cases with more evidence, and then we’ll take it from there.'"

Decided in May, Ashcroft v. Iqbal has already been cited hundreds of times by lower courts.

The lawsuit, which named former Attorney General John Ashcroft and former FBI Director Robert Mueller, stemmed from the alleged torture and humiliation of a Pakistani man, arrested in New York City in November, 2001. In a 5-4 decision, the court found that the two Bush administration officials could not be sued without evidence that they ordered the abusive treatment.

Stephen B. Burbank with the University of Pennsylvania Law School told The New York Times, “[The Iqbal decision] is a blank check for federal judges to get rid of cases they disfavor.”

Scahill continued: "So, while it’s being portrayed by the corporate media as a judge tossing out these cases, that quite clearly is not the case. This was actually a pretty significant defeat for Blackwater and a victory not only for the Iraqis in this case, but also for those lawyers from the Center for Constitutional Rights that have spent decades trying to apply US laws to crimes committed abroad. Blackwater remains in very, very hot water, not only because of this case, but also the US Justice Department is going to begin its prosecution of five Blackwater operatives for manslaughter charges relating to the Nisoor Square massacre in September of ’07. This is very high-stakes stuff, and the corporate media got it basically absolutely wrong.

This video is from Democracy Now!, broadcast Oct. 23, 2009.