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
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
This is hardly the first indication that the government’s investigation of the
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
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
What is so often lost in this new debate on accountability and oversight is this fact: private contractors now outnumber regular soldiers on the
While there may be some token prosecutions that stem from the recent uptick in reporting on contractor crimes in
Jeremy Scahill is the author of the New York Times bestseller Blackwater: The Rise of the World’s Most Powerful Mercenary Army. He is currently a Puffin Foundation Writing Fellow at the Nation Institute.