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

[Galvestonians for Dr. Ron Paul]

Jeremy, Once again you speak exactly to the point and are extremely convincing with your diligence.

I saw you first report on Blackwater on Democracy Now about 6 months ago, and I saw your report on
Bill Moyers journal that was the final wake up call I needed.
Shortly after that, Naomi Klein came out with her book "Shock Doctorine".
I truly appreciate your insight and dedication.
THX
:)

http://www.pbs.org/moyers/journal/10192007/watch.html

http://www.pbs.org/moyers/journal/10192007/watch2.html

These are links to your discussion with Bill Moyers...Something I think every American should watch.

[BenCohenTheDailyBanter]

I agree that the U.S has been committing war crimes since its inception, but under Bush, they can't even be bothered to disguise it. Just watch what they are doing in Iran: http://originalbanter.blogspot.com/2007/10/david-barsamian-interview-part-3_29.html
I'm a Brit living in America. If they attack Iran, I'm out of here.

[Ono4Hoopono]

Is it possible we are overthinking this?

Ignorance of the law is no excuse. And so relying on some official to give you immunity when it is out of their jurisdiction doesn't make it so that you get immunity. So why is this any different than two people talking on a street corner about an alleged crime.

If someone is accused of killing someone, and they talk about that crime with someone who misrepresents themselves as someone who will protect them, is the accused in fact protected? Even if they told this person or signed a document that stated they were only talking about the alleged crime because they BELIEVED they were immune? Or does Caveat Emptor kick in at some point?

Can't they subpoena both the state department official who offered the protection without true authority, as they would any third party with whom a defendant discusses his case? Or even consider witness tampering or obstruction?

Does it really stand up in our court? Or can we look through this facade like we do other rackets?

I think it is time to cut through the convoluted reasoning that is tying our country up in knots, first by recognizing when it is happening, like now, and then by getting back to the basics of what we know to be just. They are spraying us with silly string.

We get so caught up in trying to reason our way out of these webs of deception. They are intended to bog down well meaning people. They know we will try to be just and do the right thing. They can count on it. They are using our integrity against us.

Enough already.

[TheHandyman]

I was wondering the same thing. How about charging the person who didn't have the authority to give the immunity with an accessory to murder? Charge everyone up the line until you get to Rice even. I am appalled at what this administration continues to get away with. They are worse than the Mafia and the very people who are supposed to be keeping them in check sit there and wring their hands and say we don't have the votes! This is absolutely disgusting!

[SisterJ]

Excellent analysis. I was also thinking that even if the so-called immunity holds, it only protects each individual from incriminating himSELF. It doesn't mean they can't isolate these guys and "imply" that one or more has started talking. They didn't all sign the agreement, so it would be easy to get the ball rolling.

They might not tell on themselves, but they'll start singing if they think their co-mercenaries are setting them up. Come to think of it, this will probably be on Law & Order next week...

[BritPatJax]

Whats to tell? They shot up a district and we all know it was criminal. Who needs their view? It was a very public and very brutal show of force at Iraqi 'OK Corral' Go Figure.

[Oldtimer]

In my opinion this is a good reason to impeach
Bush.When a president condones obstruction
of justice, tells aides NOT to appear before
Congress and sets up blanket immunity and commutation for his cronies, then it is time to throw his ass out. Im peach the bastard and
impeach Cheney too. There is no immunity for that!!!!!!!!

[JackMonroe]

Look, I think it was Paul Bremer, who, in his wisdom, decided that what the private operatives in Iraq needed most was immunity. You saw that boy, Bremer, in his suit, tie, and combat boots. He knew all about what kind of trouble was to be reaped in an unnecessary war. When in doubt, grant and accept immunity, and plead the Fifth later. And, if you can, take a Medal of Freedom...if you can find a president dumb enough to give you one for ineptitude. Blackwater, Dynacorp - we need security outfits like them, who not only believe in Jesus, but will keep an eye out for loose bundles of money and the safety of civilians. Like a Cambodian once told me: "It can always get worse..."

[NoonDaySun]

Make no mistake, there has been no ineptitude -- what Bremer did seemed foolish at the time, but look at how perfectly it's working out for corporate interests (Blackwater) now. All of what he, and the entire Bush Administration, have done is in good keeping with "economic shock therapy," or "neoliberal economics." The chaos was not an accident.

On one end Blackwater is protected from it's excesses by the law, and on the other, its business is guaranteed by the chaos. A great business model. (If you have morals or humanity, of course.)

[Ohioan4truth]

Do you know why there are laws on the books against mafia-style organizations? Our government doesn't want any competition, that's why!

[oldpotsmuggler]

There is no better sign that it is time to just completely withdraw from Iraq than the lack of any connection or empathy with the people of Iraq that this situation demonstrates. Every single element of this entire mess shows nothing but promotion of self interest from every one of our people involved. To have a Blackwater at all shows a callous disregard for life, because the role being played explicitly requires relegating all of the locals to something less than human status. And this reality was only ratified by the conduct of the DOS investigators in proceeding with the immunization ploy. Our conduct is now veritably screaming "We matter, and you do not" to every Iraqi and there is absolutely nothing positive that can be made of our presence there because of this mindset.

It is obvious beyond any reasonable denial that the only thing any mercenary now in Iraq wants is a fat paycheck and to come out of their alive at all costs. And now we have our officials exhibiting the same determination, and no one in sight at all on our side who you can see putting Iraq and the Iraqi people first.

And as bad as all of the damage is that we are doing to the locals, the damage that Americans are doing to themselves in the name of sanity and survival is far more than enough reason to let the rest of this travesty play itself out with no further interference from us.

[bamboozled]

"Who will effectively oversee the 180,000-strong shadow corporate army?"

The answer is easy:

The same people who are overseeing the lead-painted kids toys,

the mad-cow tainted meat,

the pollution-spewing power plants,

the public airwaves,

the SEC, etc., etc., etc.

i.e. NOBODY

The grand scheme is to let corporations police themselves. This is like letting the mafia police itself.

Blackwater is the culmination of everything that is wrong with unrestricted, undilluted capitalism.

A company that needs to create new sources of conflict, death and misery to create new markets and increase profits to shareholders.

[rh654]

Until the Democrats cut funding for Blackwater and just say "No" - there really isn't any story against Bush or the Republicans - because the Democrats are guilty by association.

Regardless - it may not be so easy to not give Blackwater what they want. As part of the scaling down of the US Military, we have to make up the necessary number of people via Private Contractors.

Those Private Contractors have some power over when and where they send their people - if they don't like the rules - they can just say "Thanks but no Thanks" - and the US Military simply does not have enough people to make up the numbers if Blackwater and others start pulling people out.

[ajax2]

Yes the Army does have the numbers to replace Blackwater. The Congress doesn't have the will.

[Kendo Nagasaki]

Cannon fodder ?

There would be a mass exodus from the US.

Will those illegal immigrants be willing...

[ProfessorDuh]

So create a special conscription bill, and draft every one of the mercenary scum into the regular military.

[boyd]

Yes!

[peterg76]

"Apparently there is one set of rights for Blackwater mercenaries and another for the rest of us."

This, in a nutshell, is the image problem the US has. It used to be the US at least tried to be a little bit subtle about it, but Little George has confirmed the world's worst fears about his country.

[KoreanVet]

Hitler had his BROWN SHIRTS and Little George has his BLACK SHIRTS.

[mgloraine]

Congress needs to take action in this to make sure that the precedent doesn't stand. The State Department is in no way authorized to grant immunity from prosecution to anyone under any circumstances. We need an official statement to this effect, and a declaration that the phony "immunity" apparently offered is null and void.

If the actual killers in this incident cannot be brought to justice, then the charges need to be leveled at Erik Prince and Condoleeza Rice, who made the arrangement in the first place. TRUE justice would require that they stand trial in Iraq so that the survivors and relatives of the victims can confront them. But perhaps it would suffice to dismantle and liquidate Blackwater to recover some of the billions of dollars squandered on them, pay substantial restitution to the families of the victims of ALL their murderous encounters, put Prince in jail for war profiteering and murder, and impeach Rice for (among other things) obstructing justice.

If the elimination of Blackwater and all other mercenaries would make it impossible to continue the occupation of Iraq, then all the more reason to bring the troops home.

[fourex]

How does Blackwater continue to receive funding in a Democratic Congress? Even Reagan's Central American death squads were cut off by Congress.

[TLV]

They received the funding because, as usual, most of those who voted for the funding were never told that private security firms would be such a big draw on the war funding. How would the members of Congress have taken the news that the Blackwater guys would be paid $1,000 per day while ordinary soldiers and sailors might not see that much pay in a two-week period?

What would the American people say...knowing their hard-earned tax dollars were going to be used for such wasteful practices? They might have actually shown up in even greater numbers to stop the war. That's what the Bush administration considers the real danger - protesters!

[zaft]

TLV

Your comment says volumes as to what little concern Congress holds for our soldiers, let alone the average American.
Of course those wanting to get funding for Blackwater would never reveal the fact that private security firms would be a big draw on war funding. They did some "song and dance" before Congress. Sucked them right in. Did any one of them take the time to really research this??? Doubt it. That'd take too much time and energy. This is a great example of how lazy Congress is.

Another point is the impeachment issue that Old Timer bought up. Absolutely right there are tons of impeachable offenses within the Bush Administration. Yet, for some reason Congress will never do it. I have to ask what kind of fear is hanging over Congress' head? They didn't hesitate impeaching somebody who had a blow job in the Oval Office. Yet are willing to turn a blind eye to the violations of the Constitution going on with King Dubja.

[jdfast]

The dems have no balls.