Blackwater Wins Again

By Paul Wolf

ccun.org, January 4, 2010

If anyone is celebrating the new year this evening, it must be the five Blackwater guards who massacred 17 innocent Iraqi civilians in Nisur Square, Baghdad two years ago. This afternoon, Judge Ricardo Urbina of the DC District Court dismissed all criminal charges against them, on the basis that their indictment was procured - twice in fact - using statements they made to State Department investigators under threat of losing their jobs. In the United States, coerced confessions are inadmissible as evidence, and cannot be presented to a grand jury in order to obtain an indictment.
 
In their statements, the guards admitted killing the Iraqi bystanders, and tried to justify what happened, explaining that in the confusion of the moment, they believed they were being shot at from various directions by Iraqi police. One of the guards even fired an M203 grenade launcher at an automobile, although this was not disclosed in his initial interview.

Aside from the 17 homicides, scores of people received bullet wounds and survived.
 
The guards were ordered by their employer, Blackwater USA - a private security contractor which recently changed its name to "Xe" in an effort to improve its miserable public image - to cooperate fully with the State Deptartment investigation. Each of their sworn statements ended as follows:
 
"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."
 
These confidential statments somehow made their way to the press and were widely reported. Witnesses in the case, naturally curious about what had happened, read all about them. Two of the witnesses even set up “Google News” alerts, through which they were e-mailed multiple news articles each day regarding the Nisur Square incident. Iraqi eyewitnesses may also have read about the incidents in the Iraqi press. We don't know, because the prosecution didn't try use them in the grand jury hearings.
 
When the problem was brought to the attention of Judge Urbina, he had the prosecutors start over again, with a second grand jury. Unfortunately, the prosecution's witnesses were still aware of the tainted confessions, and some had changed their stories to conform to the press reports.  In addition, instead of presenting the witnesses a second time, the prosecutors presented redacted versions of the testimony given at the first hearing.
Prosecutors not only redacted information relating to the coerced confessions, but also exculpatory statements, which tended to absolve the guards of guilt. These statements related to their beliefs that they were being shot at.
 
Doctoring the testimony to exclude this material violated the defendants' rights. According to Judge Urbina, "the evidence summaries presented to the second grand jury presented distorted versions of the testimony on which they were based." Finally, the distorted testimony was read by an FBI agent who knew nothing about the case, so could survive any cross-examination because she didn't know anything. Judge Urbina's response was to dismiss the case.
 
The case was dismissed without prejudice, which only means that the prosecution has to start all over again. This may not a serious problem, since they've started all over again once already, and held two grand jury proceedings. There are two caveats, though.
 
The first is that two of the defendants moved the court to dismiss their cases with prejudice. Judge Urbina says he will address those arguments in a separate opinion. I think if he were going in that direction, though, to dismiss the case once and for all, he would have said so already.
 
The other, and more serious problem, is that most of the government's witnesses appear to have been tainted by this process and cannot be used.

They cannot keep their own memories straight from what they have read.

Several of them changed their testimony in the second hearing, to conform to press reports about the incident which were based on the coerced confessions. So it's not clear how strong the government's case is at this point.
 
The sixth person indicted, Jeremy Ridgeway, pled guilty in exchange for testifying against his comrades, expecting to receive a reduced sentence.

It remains to be seen whether his attorney can argue that the charges against him should be dismissed as well. This seems unliklely, and is a kind of poetic justice.
 
The bottom line is that the Blackwater guards might be prosecuted again, but most of the witnesses cannot be used. The confessions made to State Dept investigators were coerced and cannot be used either. Whatever evidence may be left is all that the next team of prosecutors will have.

What looked like a very strong case has probably turned into a loser. This is a shame, that such a terrible crime may go unpunished, and only because the prosecutors were so eager to win, they resorted to cheating.