“The overall wild thing that went on here just cannot ever be condoned by the court,” said Judge Royce Lamberth last week, sentencing three former Blackwater security people to 30 years and one day in prison and the fourth to a life term for their roles in the Sept. 16, 2007, shooting of 14 Iraqi civilians in Baghdad.

The overall wild thing. It was a good epitaph for the Blackwater affair of 2007, though perhaps not in the way Lamberth had intended. In a way, I remain sympathetic to the four young men who were convicted, terrible as their crimes were. They’ve been held up as the evil embodiments of our bad conduct in a bad war rather than as something more pitiable: collateral damage of one of the most pernicious hypocrisies of our war on terror. I’m referring to our country’s policy of eliding the distinction between military and civilian in a theater of war, despite our fighting a war premised on the inviolability of that distinction.

The coverage of the case seems to have missed the point. The New York Times dutifully focused on the four men, pointing out that they stepped up before Judge Lamberth and “defiantly asserted their innocence.”

The ruling ended a long investigation into the Nisour Square shooting, a signature, gruesome moment in the Iraq war that highlighted America’s reliance on private contractors to maintain security in combat zones.

No such company was more powerful than Blackwater, which won more than $1 billion in government contracts. Its employees, most of them military veterans, protected American diplomats overseas and became enmeshed in the Central Intelligence Agency’s clandestine counterterrorism operations. Its founder, Erik Prince, was a major donor to the Republican Party.

The New Yorker followed with its own lament, muddying the waters with confusing characterizations of both the U.S. military and the contractors:

The Blackwater case is a reminder of ... how slow we have been, in the years since 9/11, to remember the most practical and the most just tools that we have at our disposal. We have, it is often said, the best and most well-trained military in the world. But we sent it into Iraq for reasons that proved false, and then swerved toward reliance on a fake army of mistrained mercenaries.

I submit that in an imaginary, thoughtful world this story could have just as much gone the opposite way. That the mainstream press could be arguing that these four young men are in fact victims. That what happened was indeed a “wild day” in 2007 and the Iraqis should be compensated and the responsible punished. But it is not Blackwater or “private contractors” or “mistrained mercenaries” or the Republican Party (really, New York Times?) that are ultimately guilty.

First the facts: These four young men, who were between the ages 23 and 27 when the incident occurred, are not exactly veterans of anything, at the most having served one stint in the military. Second, despite being employed by a company that has become notorious for Wild West lawbreaking, they were also indirect employees of the U.S. government and thereby not independent actors in this theater of war. They shouldn’t be tossed overboard as “private” anythings, not when they are carrying guns at U.S. behest and operating under the banner of the United States. Mercenaries perhaps, and definitely not soldiers in uniform, but also modern-day equivalents that we’ve created, ambiguously sent out there with guns, only to deny (or intrinsically ignore) their rights as combatants.

We should see the Blackwater Four for what they were and are: real-life embodiments of our disgusting system of war-making, which can hardly to be laid at Blackwater’s doorstep. The fact that so little has been reformed since our first yucky introduction to the conundrums of relying on contractors to actually do the fighting—which now routinely includes outside-the-wire shooting and even trigger-pulling from afar as part of the drone war—goes to show you how complicated self-instituted world policing can be.

More than a decade ago, in November 2004, the first contractors were killed in Iraq, Blackwater men. Tons have been written about these “contractors”—the billions spent, the lack of accountability, their carrying out of functions that should be inherently done by government itself. But nothing much has changed. And whatever one believes, they are our employees, and as such, we should hold our leaders—civilian and military—responsible for ensuring that they are needed, qualified and responsible.

The New York Times and The New Yorker are intent on leaving behind the image of a “gruesome moment” and “how very badly we conducted ourselves” in seven years of war in Iraq. I’ll beg to disagree: Most—the vast majority—of those in uniform conducted themselves impeccably well. And it is important to state it and recognize this, in order to separate those behaviors from those that are unacceptable in warfare, a separation that we still seem unwilling to make.

So, as Judge Lamberth remarked, it was a wild thing, this thing that happened, and a court of law did convict these “civilians,” but were the Blackwater Four truly civilians? And what have we learned?

I would argue that these Blackwater Four are 21st Century memes in a thoughtless system we have created and continue to employ, one that intentionally mixes soldiers (as defined by the Geneva Conventions), government civilians, contract civilians, secret agents of ambiguous status, and various foreign proxies, into a fighting force that, theoretically, is fighting to uphold the fundamental principle of distinction in Customary International Humanitarian Law. Distinction is:

Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

Distinction is essential because the terrorists—as unlawful combatants—do not have legitimacy under international law to take up arms, and because they intentionally focus their attack on civilians, they violate the fundamental rule of distinction. This is what we are fighting for! To preserve this fundamental rule and eliminate terrorism altogether, this intentional preying upon civilians, this self-granted license to fight as armies. So we can put the Blackwater Four in jail and wash our hands of the unfortunate incident, but we do so without acknowledging the impossible situation we have created. By continuing to use armed contractors on the battlefield (and operating soldiers without uniforms and using CIA illegal combatants as soldiers) we continue to communicate to the bad guys that we ourselves do not respect the law of armed conflict.

Call me naïve for even believing in a law of war, but it is precisely because war is hell, and other Iraqi civilians were killed by soldiers and Marines, that we need to be extra careful here. One could argue these soldiers and Marines were equally “mistrained” and that hundreds, thousands, or tens of thousands of Iraqi civilians were similarly killed, but these combatants don’t stand before a civilian court and contend with civilian sensibilities about war. The Blackwater Four might not be innocent, but they are being made into examples of the wrong thing. To punctuate the point, even the Justice Department, in announcing the verdict, used redundant terminology saying that those killed—the Iraqis—were “unarmed civilians,” as if there are any other kinds. And the four were convicted for “firearms offenses?” Really?

Don’t get me wrong, the Blackwater Four should indeed be in jail. Once the mistake was made, only select members of the team were found to have used excessive force. I just think we shouldn’t have separate rules for different combatants of different statuses and if we can’t square that circle, then we shouldn’t have armed contractors on the battlefield, period.

You can contact me at william.arkin@gawker.com, and follow us at @gawkerphasezero. If you are into the theater of being underground, you can anonymously deliver tips through the Gawker Media SecureDrop. I’ve got a book on drones coming out in July called
Unmanned: Drones, Data and the Illusion of Perfect Warfare. I’m open to your input and your questions, tough questions.

[Image via AP.]