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"But if the cause be not good, the king himself hath a heavy reckoning to make, when all those legs and arms and heads, chopped off in battle, shall join together at the latter day and cry all 'We died at such a place;' some swearing, some crying for a surgeon, some upon their wives left poor behind them, some upon the debts they owe, some upon their children rawly left. I am afeard there are few die well that die in a battle; for how can they charitably dispose of any thing, when blood is their argument? Now, if these men do not die well, it will be a black matter for the king that led them to it; whom to disobey were against all proportion of subjection." (Henry V, Act V, Scene 4)

Thursday, January 10, 2008

2005 Use of Gas by Blackwater Leaves Questions

2005 Use of Gas by Blackwater Leaves Questions

WASHINGTON — The helicopter
was hovering over a Baghdad checkpoint into the Green Zone, one
typically crowded with cars, Iraqi civilians and United States military

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.

None of the American soldiers exposed to the chemical, which is
similar to tear gas, required medical attention, and it is not clear if
any Iraqis did. Still, the previously undisclosed incident has raised
significant new questions about the role of private security
contractors in Iraq, and whether they operate under the same rules of
engagement and international treaty obligations that the American
military observes.

“You run into this issue time and again with Blackwater, where the
rules that apply to the U.S. military don’t seem to apply to
Blackwater,” said Scott L. Silliman, the executive director of the
Center on Law, Ethics and National Security at the Duke University School of Law.

Officers and noncommissioned officers from the Third Infantry
Division who were involved in the episode said there were no signs of
violence at the checkpoint. Instead, they said, the Blackwater convoy
appeared to be stuck in traffic and may have been trying to use the
riot-control agent as a way to clear a path.

Anne Tyrrell, a spokeswoman for Blackwater, said the CS gas had been released by mistake.

“Blackwater teams in the air and on the ground were preparing a
secure route near a checkpoint to provide passage for a motorcade,” Ms.
Tyrrell said in an e-mail message. “It seems a CS gas canister was
mistaken for a smoke canister and released near an intersection and

She said that the episode was reported to the United States Embassy
in Baghdad, and that the embassy’s chief security officer and the
Department of Defense conducted a full investigation. The troops
exposed to the gas also said they reported it to their superiors. But
military officials in Washington and Baghdad said they could not
confirm that an investigation had been conducted. Officials at the
State Department, which contracted with Blackwater to provide
diplomatic security, also could not confirm that an investigation had
taken place.

About 20 to 25 American soldiers were at the checkpoint at the time
of the incident, and at least 10 were exposed to the CS gas after
“rotor wash” from the hovering helicopter pushed it toward them,
according to officers who were there. A number of Iraqi civilians, both
on foot and in cars waiting to go through the checkpoint, were also
exposed. The gas can cause burning and watering eyes, skin irritation
and coughing and difficulty breathing. Nausea and vomiting can also

Blackwater says it was permitted to carry CS gas under its contract
at the time with the State Department. According to a State Department
official, the contract did not specifically authorize Blackwater
personnel to carry or use CS, but it did not prohibit it.

The military, however, tightly controls use of riot control agents
in war zones. They are banned by an international convention on
chemical weapons endorsed by the United States, although a 1975
presidential order allows their use by the United States military in
war zones under limited defensive circumstances and only with the
approval of the president or a senior officer designated by the

“It is not allowed as a method or means of warfare,” said Michael
Schmitt, professor of international law at the Naval War College in
Newport, R.I. “There are very, very strict restrictions on the use of
CS gas in a war zone.”

In 2003, President Bush approved the use of riot control agents by
the military in Iraq under the 1975 order, but only for such purposes
as controlling rioting prisoners. At the time of Mr. Bush’s decision,
there were also concerns that the Iraqi Army would use civilians as
shields, particularly in a last-ditch battle in Baghdad, and some
officials believed that riot control agents might be effective in such
circumstances to reduce casualties.

A United States military spokesman in Baghdad refused to describe
the current rules of engagement governing the use of riot control
agents, but former Army lawyers say their use requires the approval of
the military’s most senior commanders. “You never had a soldier with
the authority to do it on his own,” said Thomas J. Romig, a retired
major general who served as the chief judge advocate general of the
United States Army from 2001 to 2005 and is now the dean of the
Washburn School of Law in Topeka, Kan.

Several Army officers who have served in Iraq say they have never
seen riot control agents used there by the United States military at
all. Col. Robert Roth, commander of Task Force 4-64 AR of the Third
Infantry Division, which was manning the Assassins’ Gate checkpoint at
the time of the Blackwater incident, said that his troops were not
issued any of the chemicals.

“We didn’t even possess any kind of riot control agents, and we
couldn’t employ them if we wanted to,” said Colonel Roth, who is now
serving in South Korea.

But the same tight controls apparently did not apply to Blackwater
at the time of the incident. The company initially got a contract to
provide security for American officials in Iraq with the Coalition
Provisional Authority, an agreement which did not address the use of CS
gas. After the authority went out of business, the State Department
extended the contract for another year until rebidding it. Blackwater
and two other companies — DynCorp and Triple Canopy — that now provide
security are not permitted to use CS gas under their current contracts,
the State Department said.

The State Department said that its lawyers did not believe the Blackwater incident violated any treaty agreements.

In a written statement, the State Department said the international
chemical weapons convention “allows for the use of riot control agents,
such as CS, where they are not used as a method of warfare. The use of
a riot control agent near a checkpoint at an intersection in the
circumstances described is not considered to be a method of warfare.”

Yet experts said that the legal status was not so clear cut. “I have
never seen anything that would make it permissible to use tear gas to
get traffic out of the way,” Mr. Schmitt said. “In my view, it’s an
improper use of a riot control agent.”

Blackwater’s regular use of smoke canisters, which create clouds
intended to impede attacks on convoys, also sets it apart from the
military. While it does not raise the same legal issues as the CS gas,
military officials said the practice raised policy concerns. Col. Roth
said that he and other military officers frowned on the use of smoke,
because it could be used for propaganda purposes to convince Iraqis
that the United States was using chemical weapons.

Officers and soldiers who were hit by the CS gas, some of whom asked
not to be identified because they were not authorized to discuss the
incident, have described it with frustration. They said no weapons were
being fired or any other violence that might have justified
Blackwater’s response.

In a personal journal posted online the day of the incident, Captain
Clark provided a detailed description of what happened and included

While standing at the checkpoint, he wrote, he saw a Blackwater helicopter overhead.

“We noticed that one of them was hovering right over the
intersection in front of our checkpoint,” he wrote. “There was a small
amount of white smoke coming up from the intersection. I grabbed my
radio and asked one of the guard towers what the smoke was. He answered
that it looked like one of the helicopters dropped a smoke grenade on
the cars in the intersection. I asked him why were they doing that, was
there something going on in the intersection that would cause them to
do this. He said, nope, couldn’t see anything. Then I said, well what
kind of smoke is it?

“Before he could say anything, I got my answer. My eyes started
watering, my nose started burning and my face started to heat up. CS! I
heard the lieutenant say, “Sir that’s not smoke, it’s CS gas.”

After reporting the incident to his superiors, Captain Clark wrote,
a convoy that the helicopter was protecting showed up. Because the gas
caused a “complete traffic jam in front of our checkpoint,” the captain
wrote, “armored cars in the convoy made a U-turn — and threw another CS

“It just seemed incredibly stupid,” he wrote. “The only thing we
could figure out was for some reason, one of them figured that CS would
somehow clear traffic. Why someone would think a substance that makes
your eyes water, nose burn and face hurt would make a driver do
anything other than stop is beyond me.”

Army Staff Sgt. Kenny Mattingly also was puzzled. “We saw the Little
Bird (Blackwater helicopter) come and hover right in front of the gate,
and I saw one of the guys dropping a canister,” Sergeant Mattingly said
in an interview. “There was no reason for dropping the CS gas. We
didn’t hear any gunfire or anything. There was no incident under way.”

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