State to Blackwater: Nothing You Say Can and Will Be Used Against You in a Court of Law

Apparently there is one set of rights for Blackwater mercenaries and another for the rest of us. Normally when a group of people alleged to have gunned down 17 civilians in a lawless shooting spree are questioned, investigators will tell them something along the lines of: "You have the right to remain silent. Anything you say can and will be used against you in a court of law." But that is not what the Blackwater operatives involved in the September 16 Nisour Square shooting in Iraq were told. Most of the Blackwater shooters were questioned by State Department Diplomatic Security investigators with the understanding that their statements and information gleaned from them could not be used to bring criminal charges against them, nor could they be introduced as evidence. In other words, "Anything you say can't and won't be used against you in a court of law."

ABC News obtained copies of sworn statements given by Blackwater guards in the immediate aftermath of the shootings, all of which begin, "I understand this statement is being given in furtherance of an official administrative inquiry," and that, "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." Constitutional law expert Michael Ratner, president of the Center for Constitutional Rights, says the offering of so-called "use immunity" agreements by the State Department is "very irregular," adding he could not recall a precedent for it. In normal circumstances, Ratner said, such immunity is only granted after a Grand Jury or Congressional committee has been convened and the party has invoked their 5th Amendment rights against self-incrimination. It would then be authorized by either a judge or the committee.

Military law expert Scott Horton of Human Rights First says, "What the State Department has done in this case is inconsistent with proper law enforcement standards. It is likely to undermine an ultimate prosecution, if not make it impossible. In this sense, the objective of the State Department in doing this is exposed to question. It seems less to be to collect the facts than to immunize Blackwater and its employees. By purporting to grant immunity, the State Department draws itself more deeply into the wrongdoing and adopts a posture vis-a-vis Blackwater that appears downright conspiratorial. This will make the fruits of its investigation a tough sell."

Ratner says that while what was offered the Blackwater operatives is not immunity from prosecution, prosecutors would need to prove they did not use the sworn statements as part of their investigation. "Even though the person can be prosecuted if independent evidence is relied upon, often this is hard to demonstrate," he says. As an example of the problems such immunity can pose, Ratner points to the case of Oliver North. "He had been granted 'use immunity' and was then prosecuted, supposedly on the basis of independent evidence," Ratner says. "However, his conviction was reversed in the court of appeals because it could not be demonstrated that all of the evidence against him had an independent source outside of his own testimony."

Aside from the fundamental problem that there is quite possibly no legal framework for charging the Blackwater shooters under any legal system--US civilian law, military law or Iraqi law--legal analysts and a former federal prosecutor say the State Department has already tainted the Nisour Square criminal investigation in several ways. The FBI was not dispatched to investigate the case until two weeks after the shootings occurred, meaning that the initial investigation was in the hands of a non-law enforcement agency that just happens to be Blackwater's employer. By the time actual law enforcement, the FBI, was sent to Baghdad, the crime scene had been tainted and some of the perpetrators questioned with the alleged immunity provision. "To rely on non-law enforcement to conduct sensitive law enforcement activities makes no sense if you want impartial justice," says Melanie Sloan, a former federal prosecutor who currently serves as Executive Director of Citizens for Responsibility and Ethics in Washington. "This investigation has already taken so long and it looks like the State Department has impeded the possibility of a successful criminal investigation." The Washington Post reported that "Some of the Blackwater guards have subsequently refused to be interviewed by the FBI, citing promises of immunity from State."

This is hardly the first indication that the government's investigation of the Nisour Square shootings was lacking in integrity and impartiality. The State Department's initial report on the shooting was drafted by a Blackwater contractor on official US government stationary. The FBI team initially dispatched to Baghdad to investigate Blackwater was to be guarded by Blackwater until Sen. Patrick Leahy raised questions about the arrangement forcing the Bureau to announce it would be guarded by official personnel and not personnel from the same company it was investigating.

Perhaps the most disturbing part of this story (aside from the loss of Iraqi civilian life) is that even if Blackwater was not so politically connected to the White House and even if there was a truly independent US Justice Department and even if immunity had not been offered and even if there was an aggressive investigation, it may all be totally irrelevant. When Secretary of State Condoleezza Rice recently dispatched a team to Baghdad led by veteran diplomat Patrick Kennedy to review the department's private security force, the team returned with the conclusion that it "is unaware of any basis for holding non-Department of Defense contractors accountable under US law."

While there are currently moves afoot in the US Congress to adjust language in the Military Extraterritorial Jurisdiction Act to allow for prosecutions of State Department contractor crimes in US civilian courts and although there is a debate over whether the court martial system could be applied, the reality is that the political will to prosecute contractors has been totally absent since day one of the Iraq occupation. Not a single armed contractor has ever been prosecuted for crimes committed in Iraq--not under US civilian law, not under military law and certainly not in Iraqi courts, which have been banned by the US occupation authorities from going after private contractors.

What is so often lost in this new debate on accountability and oversight is this fact: private contractors now outnumber regular soldiers on the Iraq battlefield. The military--with its massive bureaucracy--has been unable or unwilling to effectively monitor the actions of its soldiers and prosecute them for crimes. Who will effectively oversee the 180,000-strong shadow corporate army? Will FBI teams really be running around Iraq chasing allegations (ever increasing) of contractor crimes and misconduct? Who will guard the investigators? Who will interview Iraqi witnesses? Where will the funding come from? Who will arrest the heavily-armed mercenary alleged to have committed a crime, particularly when he was doing exactly what he was supposed to do in keeping VIP US officials alive in Iraq?

While there may be some token prosecutions that stem from the recent uptick in reporting on contractor crimes in Iraq, the reality is that without private forces from Blackwater and its ilk, the US occupation of Iraq would be untenable. Nothing will be done that would actually jeopardize the use of such forces in the war zone. While Blackwater's conduct in Iraq is horrifying, it is important to remember that US ambassadors--all four who have served under the Iraq occupation--owe their lives to Blackwater's shoot-first-and-never-ask-questions cowboy tactics. They are the reason the company can brag it has never lost an American life it was protecting. Blackwater does its job and while it is essential to prosecute its operatives for their crimes, the ultimately responsible party is the entity that hired them and deployed them armed and dangerous in Iraq.

Follow Jeremy Scahill on Twitter: www.twitter.com/jeremyscahill

Comments

[BritPatJax]

When the Constitution was first written one reason for wanting free of dominant Britain was that 'Redcoats' were not accountable. They were not brought to book for their crimes in America and were sent back to Britain to be tried, 'yeah right'. Redcoats also had to be able to 'bunk' where they liked. The Haditha of that day was just as likely to have happened as it is in Iraq today and America has no sense of history repeating itself or of any sense of shame as their double standards are evident to the world. Then yo get Boortz saying yesterday not to gift to UNICEF because it is the hated UN that gets the credit instead of America and the children need to know that it is wonderful America that made the donation. It takes more than just money to get a good reputation Boortz and hating UN is as stupid as hating the world. ONLY USA talk of hating UN. ONLY USA talk of hating the world. Boy you guys need a good Publicity Officer right now and you need to get your heads out of the sand if you ever want to travel with your heads held high?

[demigod]

Exactly right - I was also thinking of Britain's brutal "occupation" of colonial America and how we exercised our right to throw them out and declare Independence. But at least the British had set up the colonies, they had some connection to their investment. WE HAVE NO SUCH RIGHT in Iraq ! We simply invaded, unprovoked, on the basis of lies, an oil-rich nation we thought we could take on and run for the long haul. We are WORSE than the British, with much better weaponry. And you can bet that back in England, the Sons of Liberty were the al Qaeda of their day, the worst "terrorists" Britain had faced.

[fact finder]

demigod; Tell that bull shit about how the British did not invade this continent to my people, The Cherokee, and the other first Americans and see where it gets you.

[chel]

How much more will we endure before we accept that our country is without law and out of control?
Crimes can be committed and people aren't held accountable.
More importantly, what does this mean for the future of our country? How are we supposed to bring up our children to respect the law?

[Jonahson]

It's better to be a Blackwater mercenary than a regular US soldier. For one thing you get paid better and you can kill for thrill. Gun em' down just like in those PC games.

[BARRISTER]

Hint: What percentage of Blackwater is owned by the Carlyle Group or its affiliates?

[Kendo Nagasaki]

Coming soon to a neighborhood near you...

Blackwater is the new SS. Unaccountable protection for the fascist leaders.

[mimsnpips]

I wonder how many other times this has happened in the current administration and our bleary eyed MSM either missed or purposely ignored it. More than we will ever know.

And the possibility of these thugs providing 'security' on American soil for a natural disaster, or any other time POTUS would decide they're necessary is the kind of stuff that keeps me up at night.

We've gotta keep getting the word out to anyone who will listen, vote the criminals out of office.

Obama or Edwards over Hil-lie-ry.

[SaintN]

It would be kind of difficult for the Bush Govt and the US Congress to indict Blackwater for committing the same crimes in Iraq that the US Military has i.e. reckless and indiscriminate murder!
The big,political trough hogs in Washington know that Blackwater's defense lawyers would focus on these striking similiarities to the wanton actions of the US Military in Iraq and that of course is when the "shite" would really hit the fan!

[Norge]

It appears Bremer, during his tenner passed enough diktaes (new rules) to cover just about any possible problem for America which might occur in the future time of occupation. Regardless of the wrongfullness, America would be able to crawl through one or another "legal" loop hole.

That type of history writing has been done since the times of the Indians of America.

[jdfast]

Just one question, how long before the contractors are used by Homeland Security after a natural disaster. If the Republicans keep the WH, my guess is druing the next bad hurricane. They were in NO for Katrina and they will be under contract with HS so who will provide the oversight. Why, because the National Guard is in Iraq. Just wondering aloud. God help us all if they are dispatched under contract for HS on our soil.

[BenBochner]

This isn't one of those instances of Bush administration incompetence. This was pre-meditated. This is how they set it up.

Imagine the Chinese occupying our country and utilizing a private army to guard their officials. An private army that had immunity from any law. You think we would differentiate them from regular Chinese soldiers, or the Chinese people? No. They'd all just be Chinese - and we'd curse every one of them.

I'd fight to the death to get those bastards out of my country. Wouldn't you?

And guess what: If Blackwater isn't stopped now they are coming home.

[fact finder]

BenBochner; Stopped or not they will be coming here, loaded for Bear.

[pennyfortheguy]

Held in toto incognitas. By reason of Nat'l Security. Harumph. What's left to secure?

[knosiswar]

JEREMY, I just caught your appearance on Countdown. Nice Job. QUESTION! What is SPRAY AND PRAY? I was real dissappointed that Keith didn't pick up on that and have you elaborate. Would you please do so hear?

[Opus007]

"Spray and Pray" is shoot first - assuming your are shooting at the enemy and hope you haven't killed an ally.

[knosiswar]

It sounded to me like 'Procedure'. As part of regular operations. More of the rule than the exception. I wanted to hear from Jeremy if there was more to that Phrase, and what weight it carried, or if it's simply just slang that has been applied to a few of the incidents from observers. If the phrase comes from Blackwater Contractors, it carries more weight, than a clever label.

[fact finder]

knosiswar; SPRAY AND PRAY is a term that means that a person fires as many rounds, bullets, in to the general direction of the enemy and prays that a hit happens. In other words indiscriminate firing.

[Sundialsvc4]

When I first heard about all that lawyer-speak showing up in the documents you spoke of, at first my head reeled from the sudden onslaught of lawyerly b**ls**t. At first, I started to marvel at all those oh-so-interesting new "legal principles."

Then my gut took over: "it's just b**ls**t." And, so it is.

Blackwater is actually just another example of something that is all-too-familiar in the darkest pages of world history. They're the goon-squad; the brown shirts; the black vehicle that drives up in the middle of the night before You Disappear.

Pardon me, but in my not-so-distant memory I recall a United States of America that arrayed itself fully against tyranny of this sort wherever in the world such tyranny might be found ... and defeated it.

I also remember a United States of America that opposed Communism instead of building its entire national economy around "trading with the enemy" because that enemy "sells for less, always!"

I remember a United States of America that was founded on core principles.

And... I firmly believe that THIS United States of America IS STILL THERE.

The enemy now is within our gates -- within our White House and our Court and our Congress -- but I wait to see the re-emergence of that muscle-bound Uncle Sam that's rolling up his sleeves to demolish this enemy ... this enemy that is so supremely arrogant and stupid as to set itself as a pretender to America's throne.

[Redrose]

I am really tired of waiting, to me it seems
that we the American People with "Uncle Sam,"
and along with Congress have become complacent.
All we are doing is complaining while we go
to Wal Mart,K Mart, Costco, Sams etc,we happily
walk away with our manufactured out of the
country goods...because we save some money $$.
Lets face the truth...we have been taken over
already...­BlACKWATER is the force who will
keep us restrained when it's too late and we
stop talking B.S. and wake up! The MSM has
been taken over already and what they report is controlled reporting! I agree with Sundialsvc4,but just sitting & venting here
is meaningless, like sheep we will shop
for the best bargains, burn the gas in our
SUV' speeding along the Parkways, watch all the talking heads on T.V. and be entertained by the "Brainless" reality shows, game shows etc. that are being used to dummy us down.
Talk is cheap people...but soon, if we let it
go much further we won't have the right to even do that and make no mistake the time is very very close. Hillary Clinton is NOT who
we need to vote for...the Republicans want her
in, they are guaranteed if she gets in nothing
changes, and the Majority thinks "whoopee we
should them...we changed parties!" They let us
feel satisfied that we are still "free!" The
media is talking her up, people tend to vote for a winner...so the media has proclaimed her
the winner! Guiliani will run against her and will lose...he has to run on more then 9-11
in which he did what ANY Mayor would have done,
and if truth be told he did less! So there you go, don't vote for who the media is telling you to vote for...vote for who will bring our Country back to her shining Splendor.
What were the words to a song "a little less conversation..."

[Redrose]

To justicefor­juveniles: Your quote is very
appropriate, at sixteen years old you did
a wonderful job of getting straight to the point! Thank You

[justice4juveniles]

"Though no enemy could destroy them, they could not guard against themselves"-Eragon

(written by a 16 year old home schooler)

[Redrose]

"WAITING TO SEE THE RE-EMERGENCE OF THAT
MUSCLE-BOUND UNCLE SAM ROLLING UP HIS SLEEVES TO DEMOLISH THIS EMEMY" is like waiting for
Batman,Superman or Santa Clause!! Waiting,
talking doesn't do it...WE are and aways were
Uncle Sam!! It is us...the angry majority who have to band together and stop watching and waiting for someone else to do it for us!
When there are demonstrations we all have to join in to denounce what we don't approve of.
We should march outside of the MSM studio's and denounce their censure of what we are receiving as news!! We don't care about Britney Spears, Paris Hilton, Lindsey Lohan,
watch Entetainment Tonight or Extra for that
trivia. Demand adult news such as Blackwater,
along with the truth!! Show up for demonstrations...it worked when we wanted to put an end to the Viet Nam War, we have to stop being lazy and become committed and show
Love and Respect for Our Country, just showing the flag isn't doing it!!!!

[demigod]

Blackwater is the natural product of America's refusal to critique its own troops. Somehow the TROOPS are sacrosanct and the Generals are heroes, whatever the policies of the elected folks back home, you CANNOT CRITICIZE the TROOPS or their leadership. Likewise, the Blackwater guys mostly ARE ex-troops, they have lived that culture, they assume the holy mantle of patriots "doing America's dirty work." Erik Prince sounded exactly like Petraeus or any of the other highest military officers when he testified, he used the same jargon, knew all the weapons systems. Blackwater is the U.S. military's bastard child, the half brother living in the same house as the annointed heir, without any of the rules of legitimacy.

[jsarets]

The fundamental reason why we use PMCs in Iraq is as a trade-off between economic and political capital. We're putting more charges on our national credit line so that our politicians don't have to reinstate the draft or use other means of obtaining enough military resources to provide these essential wartime services.

War has changed. The news of any irresponsible use of force will travel quickly through the civilian population and incite the kind of resentment that marginalizes our security efforts. If we don't have tight oversight of all of our armed forces, we cannot effectively wage a counterinsurgency.

Now we face the prospect of adding a whole new layer of bureaucracy to provide law enforcement services for the private contractors, which in turn requires more security services that could only be provided by the military to avoid an obvious conflict of interest. We don't have the military personnel to dedicate to guarding the FBI in Iraq.

No way. The only reasonable solution to this problem is to prohibit the use of private security contractors in support of military operations. If this means we face the choice of reinstating the draft or withdrawal, then so be it. I wonder which way Congress would vote on that one.

Regardless of your position on this war, we can all agree that we cannot afford it. I can't imagine how even the most hawkish imperialist can justify bankrupting our nation in order to provide "space" for a political reconciliation that is never going to happen while we remain as occupiers.

[surfcitysteven]

If this democrat-controlled Congress allows Blackwater to patrol our borders I will cease to be a democrat. Democrats in congress have disgusted me to no end lately, but failing to reign in or even illiminate Blackwater and their goons as an operating firm will be their biggest failure. We will actually see these Blackshirts on our streets, especially in the Southwest. New Orleans has already seen these punks and how they operate. It is long past time to give this firm the corporate "death penalty>"

[Boomerwoman]

What other administrations have used mercenary forces (private military companies)?

[3rdCitizen]

A recurring line in the news reports is that "it's not clear who authorized the offer of limited immunity" which has now severely compromised any subsequent attempt to hold the Blackwater employees criminally responsible for their actions. Given that it's conceivable that the order may have come down from the White House itself, and possibly from the office of the President, it is essential that NO congressional investigations be undertaken into this matter. As we know from both Speaker Pelosi's statements and from Arianna Huffington's, the "critical issue of our time" is ending the Iraq war, so we must not do anything that might uncover evidence of an impeachable offence against President Bush or Vice-President Cheney because that would only distract us. We must continue to do nothing more than fume ineffectually about the past and present crimes of the Bush administration while we continue day after day to end the Iraq war. Yep. That's the strategy. Sure does seem reasonable, doesn't it? And it couldn't possibly have any bad consequences for the future of our nation, could it?

[boyd]

So well said, thank you!