State to Blackwater: Nothing You Say Can and Will Be Used Against
You in a Court of Law
By Jeremy Scahill
The Huffington Post
Thursday 30 October 2007
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.
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