The Blackwater Guards, KSM, and the American Judicial System

In 2007, Blackwater guards -- under contract to the U.S. Department of State to provide protection to State Department employees and others in Iraq -- allegedly went on an unjustified rampage at a busy intersection in Baghdad, killing at least fourteen innocent civilians and wounding others.

On December 31, 2009, Judge Urbina of a federal district court sitting in Washington, D.C., dismissed all charges (due to prosecutorial misconduct -- using statements made by the guards shortly after the alleged event in subsequent investigations and in grand jury proceedings). The judge is now considering whether to issue a misconduct citation against the prosecution. That would be quite an embarrassment to the Department of Justice.

Yet based on what happened, it would be an appropriate embarrassment.

The statements of the guards had been made under compulsion, as well as under promises of immunity from prosecution grounded in their statements. The compulsion and the promises of immunity were contained in written forms signed by the guards at the time of their statements:

I, _____________, hereby make the following statement at the request of _____________, who has been identified to me as a Special Agent of the U.S. Department of State, Diplomatic Security Service. I understand that this statement is made in furtherance of an official administrative inquiry regarding potential misconduct or improper performance of official duties and that disciplinary action, including dismissal from the Department’s Worldwide Personnel Protective Services contract, may be undertaken if I refuse to provide this statement or fail to do so fully and truthfully. I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001.

From the pre-trial proceedings in federal district court in late 2009:

... this court convened a ... hearing to explore whether the government had made any use of compelled statements during its prosecution of the defendants. During this hearing, which spanned three weeks, the parties presented testimony from twenty-five witnesses, including the government’s entire prosecution team, the lead FBI agents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.

From this extensive presentation of evidence and argument, the following conclusions ineluctably emerge. In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on [compulsion and immunity] ... issues. ... [T]his course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the ... hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury.

In short, the government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt. Accordingly, the court must dismiss the indictment against all of the defendants.

Put even more plainly, their Fifth Amendment rights against self-incrimination were violated in spades. Prosecutorial zeal can be a problem when it causes the prosecution to go off the tracks. Here, it was most likely led in that direction by the intense interest in Iraq in seeing "justice" done.

The circumstances in which the alleged massacre occurred are set forth well and at great length in the court's opinion, but should perhaps be summarized here. On September 16, 2007, the defendants were part of "Raven 23," a Blackwater tactical support team. The team had four heavily armed vehicles and received a message that an improvised explosive device had detonated in the vicinity of a compound where U.S. officials were meeting with Iraqi officials. They went to secure an evacuation route for the American officials and for the Blackwater team providing their security. A shooting incident occurred in which at least fourteen Iraqis were killed and others were wounded. The government contended that the dead and wounded were unarmed civilians who were the victims of unprovoked violence by the defendants. The defendants maintained that they came under attack by insurgents and that their actions constituted a legitimate response to a mortal threat. The U.S. government came under substantial pressure from the government of Iraq to permit the Blackwater guards to be tried by an Iraqi court. Instead, they were returned to the United States for trial.

The United States government is very disappointed with the judge's ruling. Also:

The Iraqi government regrets the decision. ... Investigations conducted by specialized Iraqi authorities confirmed unequivocally that the guards of Blackwater committed the crime of murder and broke the rules by using arms without the existence of any threat obliging them to use force.