Blackwater Killers Immune from Prosecution

The State Department offered limited immunity to Blackwater contractors involved in the shooting deaths of 17 Iraqi civilians last month, despite having no authority to do so and an ongoing FBI investigation.

A front page piece in today’s WaPo by Karen DeYoung discusses the problems this has caused.

FBI agents called in to take over the State Department’s investigation two weeks after the Sept. 16 shootings cannot use any information gleaned during questioning of the guards by the department’s Bureau of Diplomatic Security, which is charged with supervising security contractors.

Some of the Blackwater guards have subsequently refused to be interviewed by the FBI, citing promises of immunity from State, one law enforcement official said. The restrictions on the FBI’s use of their initial statements do not preclude prosecution by the Justice Department using other evidence, the official said, but “they make things a lot more complicated and difficult.”

[…]

It is unclear when or by whom the grant of immunity was explained to the guards. Under federal case law applying to government workers, only voluntary answers to questions posed by the employing agency can be used against them in a criminal prosecution. If an employee is ordered to answer under threat of disciplinary action, the resulting statements cannot be used.

“You can’t use the fruits of that statement,” another law enforcement official said. “It doesn’t prevent them from talking [to the FBI], but . . . why run the risk? I think any lawyer would advise against it. ”

David Johnston of the NYT adds:

The State Department investigators from the agency’s investigative arm, the Bureau of Diplomatic Security, offered the immunity grants even though they did not have the authority to do so, the officials said. Prosecutors at the Justice Department, who do have such authority, had no advance knowledge of the arrangement, they added.

[…]

The immunity deals were an unwelcome surprise at the Justice Department, which was already grappling with the fundamental legal question of whether any prosecutions could take place involving American civilians in Iraq.

Blackwater employees and other civilian contractors cannot be tried in military courts, and it is unclear what American criminal laws might cover criminal acts committed in a war zone. Americans are immune from Iraqi law under a directive signed by the United States occupation authority in 2003 that has not been repealed by the Iraqi Parliament.

A State Department review panel sent to investigate the shootings concluded that there was no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to address the problem.

Johnston goes into significant detail on both the legal and practical obstacles to trying these people in U.S. courts, given the rules of evidence. Suffice it to say, it’s a mess.

Hilzoy‘s right on this one: “the main problem is not individual trigger-happy contractors but a larger structural point: the absence of any legal framework for holding contractors accountable.” She concedes in a footnote that this overstates the matter somewhat but for all practical purposes, these people are above the law.

That’s got to change going forward. Practically speaking, we need private security contractors for diplomatic escort and similar duties. We don’t have the soldiers to divert to this mission and it would be both a poor use of our military assets and a suboptimal way to provide security. Still, these people’s actions reflects on the United States and can substantially impact the mission; they need to be under our control.

Wehey operate in war

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Triumph says:

    Here’s an idea: Let’s privatize the ENTIRE operation. Much like many states have sold their lotteries to private companies, LETS SELL IRAQ to Halliburton, or whoever would offer us a decent price.

    That way we wash our hands of it and get some scratch in the process.

  2. anjin-san says:

    Wow. The people of Iraq sure are lucky we gave them their freedom…

  3. Anderson says:

    LETS SELL IRAQ to Halliburton, or whoever would offer us a decent price.

    Brilliant. Bush can be president-for-life!

  4. Actually, as you read through, the story line becomes familiar: in an effort to determine the truth of a matter, immunity is granted to those involved, to encourage full cooperation. (With an exception retained for particularly gross offenders.) In other circumstances this would be called a “truth and reconciliation commission.” South Africa set up one after apartheid fell. The same arrangement is fairly common in America in certain types of investigations. This is not the shocking news its being made out to be.

  5. James Joyner says:

    In other circumstances this would be called a “truth and reconciliation commission.” South Africa set up one after apartheid fell. The same arrangement is fairly common in America in certain types of investigations. This is not the shocking news its being made out to be.

    But we’re not in the aftermath of a domestic regime change in the United States. And there was an ongoing criminal investigation.

    Yes, it’s common to offer immunity to the small fish in order to go after the big fish. Here, though, it would seem these are THE fish.

  6. Andy says:

    Brilliant. Bush can be president-for-life!

    Of Iraq? Deal!

  7. Wayne says:

    I suspect just like those with diplomatic immunity, the U.S. if they wanted to could either expel the dependents from Iraq or hand over the defendants to Iraq for prosecution. Like many diplomatic incidents they usually get expel.

  8. Alan Kellogg says:

    Since the limited immunities were not authorized, why do they apply?

  9. James Joyner says:

    Since the limited immunities were not authorized, why do they apply?

    Do we really want the government making promises to people, who accept them on the good faith proposition that the government knows what’s authorized, and then reneging on the basis that it was all a big mistake?

  10. Triumph says:

    Do we really want the government making promises to people, who accept them on the good faith proposition that the government knows what’s authorized, and then reneging on the basis that it was all a big mistake?

    This story is still murky–in fact someone came out today to say that the Blackwaterites were NOT granted immunity.

    Of course, you would think that anyone being investigated would have counsel who could determine whether the offer of immunity was legitimate or not. I am sure any decent lawyer would tell the State Department to get someone from Justice to develop the agreement before allowing his client to talk.

  11. anjin-san says:

    Do we really want the government making promises to people, who accept them on the good faith proposition that the government knows what’s authorized, and then reneging on the basis that it was all a big mistake?

    You mean like when Bush promised to help rebuild New Orleans?

  12. Dave Schuler says:

    Do we really want the government making promises to people, who accept them on the good faith proposition that the government knows what’s authorized, and then reneging on the basis that it was all a big mistake?

    Do we really want every government clerk making policy?

    The State Department is not “the government”. It’s a department of the government that should be following the rules just like everybody else.

  13. Anderson says:

    It’s a department of the government that should be following the rules just like everybody else.

    Cf. “telco immunity.”

  14. James Joyner says:

    The State Department is not “the government”. It’s a department of the government that should be following the rules just like everybody else.

    Sure. I’m all for sacking the idiots who offered immunity. But it’s quite reasonable for a citizen to presume that, if a representative of his government, in his office, acting in his official capacity, makes him an offer that it’s valid.

    To allow a representative of one agency to offer immunity and then have another agency benefit from that is to invite mischief.

  15. Ugh says:

    To allow a representative of one agency to offer immunity and then have another agency benefit from that is to invite mischief.

    There’s precedent for this, IIRC. I think the oil companies were encouraged to collude by either State and/or Defense (or perhaps the president too, don’t recall exactly who but it was clearly part of the executive branch) in the 20th Century and then whined about it when Justice hit them with an anti-trust suit for said collusion. Did them no good, as I recall.

  16. anjin-san says:

    Sure. I’m all for sacking the idiots who offered immunity. But it’s quite reasonable for a citizen to presume that, if a representative of his government, in his office, acting in his official capacity, makes him an offer that it’s valid.

    That might have been true back when this was a country under the rule of law, but I think you need to update your thinking a bit…

  17. I’m as much worried about the rule of law being undermined by Blackwater’s detractors as by its supporters. The calls in some quarters for vengeance on Erik Prince are getting downright frightening. I’m not so sure the left cares about the rule of law any more than the right. How many folks are calling for free and fair trials for Blackwater employees?

  18. Grewgills says:

    The calls in some quarters for vengeance on Erik Prince are getting downright frightening. I’m not so sure the left cares about the rule of law any more than the right.

    Where is this coming from? I haven’t seen it.
    BTW A couple of rants by anonymous commenters on a blog are not indicative of the state of “the left.”

    How many folks are calling for free and fair trials for Blackwater employees?

    From what I have seen quite a few. Most of the commentary I have read that does not support immunity calls for them to be tried either in Iraq or the US.