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The War Profiteers - War Crimes,
Kidnappings & Torture |
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October 20th,
2010 - Efforts to Prosecute Blackwater Are Collapsing |
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Efforts to Prosecute
Blackwater Are Collapsing By James Risen New York Times October 20, 2010 Washington - Nearly four
years after the federal government began a string of investigations and
criminal prosecutions against Blackwater Worldwide personnel accused of
murder and other violent crimes in Iraq and Afghanistan, the cases are
beginning to fall apart, burdened by a legal obstacle of the government’s own
making. In the most recent and
closely watched case, the Justice Department on Monday said that it would not
seek murder charges against Andrew J. Moonen, a Blackwater armorer accused of
killing a guard assigned to an Iraqi vice president on Dec. 24, 2006. Justice
officials said that they were abandoning the case after an investigation that
began in early 2007, and included trips to Baghdad by federal prosecutors and
F.B.I. agents to interview Iraqi witnesses. The government’s decision to
drop the Moonen case follows a series of failures by prosecutors around the
country in cases aimed at former personnel of Blackwater, which is now known
as Xe Services. In September, a Virginia jury was unable to reach a verdict
in the murder trial of two former Blackwater guards accused of killing two
Afghan civilians. Late last year, charges were dismissed against five former
Blackwater guards who had been indicted on manslaughter and related weapons
charges in a September 2007 shooting incident in Nisour Square in Baghdad, in
which 17 Iraqi civilians were killed. Interviews with lawyers
involved in the cases, outside legal experts and a review of some records
show that federal prosecutors have failed to overcome a series of legal
hurdles, including the difficulties of obtaining evidence in war zones, of
gaining proper jurisdiction for prosecutions in American civilian courts, and
of overcoming immunity deals given to defendants by American officials on the
scene. “The battlefield,” said
Charles Rose, a professor at Stetson University College of Law in Florida,
“is not a place that lends itself to the preservation of evidence.” The difficulty of these
cases also illustrates the tricky legal questions raised by the government’s
increasing use of private contractors in war zones. Such problems clearly
plagued the Moonen case. In the immediate aftermath of the Christmas Eve
shooting, Mr. Moonen was interviewed, not by the F.B.I., but by an official
with the Regional Security Office of the United States Embassy in Baghdad,
the State Department unit that supervised Blackwater security guards in Iraq. Mr. Moonen’s lawyer, Stewart
Riley, said that his client gave the embassy officials a statement only after
he was issued a so-called Garrity warning - a threat that he might lose his
job if he did not talk, but that he would be granted immunity from
prosecution for anything he said. The legal warning and
protection given to Mr. Moonen were similar to warnings that embassy
officials later gave to Blackwater guards involved in the Nisour Square case.
In each case, the agreements presented an obstacle to prosecution in the
United States. In effect, the Blackwater personnel were given a form of
immunity from prosecution by the people they were working for and helping to
protect. “Once you immunize
statements, it is really hard to prosecute,” said Andrew Leipold, a law
professor at the University of Illinois. “In the field, the people providing
the immunity may value finding out what happened more than they do any
possibility of prosecution. But that just makes any future prosecution really
very hard.” Justice Department officials
declined to comment Wednesday about specific Blackwater cases. But the
department has appealed the dismissal of the Nisour Square case, and a new
trial has been scheduled for next March in the Virginia murder case after a
mistrial was declared. And Justice officials noted that the government had
had a number of successful prosecutions against contractors in Iraq and
Afghanistan, including several for sexual assaults and other violent crimes.
More than 120 companies have been charged by the Justice Department for contract
fraud and related crimes in Iraq, Afghanistan and Kuwait, officials said. Still, a Justice official
who spoke on the condition of anonymity acknowledged that the government had
faced tough obstacles. “There are substantial difficulties in prosecuting cases
committed in war zones,” the official said. “There’s problems with the
availability of witnesses, availability of evidence, and the quality of the
evidence. You also have claims of self-defense, which are generally
difficult, although not insurmountable.” And self-defense is a more
compelling argument in war zones, where many people are routinely armed. One problem in the Moonen
case, for example, was that while Mr. Moonen admitted in his statement to the
embassy official that he did shoot the Iraqi guard, he asserted that he had
done so in self-defense. The guards in the Virginia case also said that they
shot in self-defense when they believed they were facing an attack from
insurgents. In the Nisour Square case, the five Blackwater guards who were charged
also claimed that they shot only after they believed they were under attack. Jurisdictional problems also
plague the Blackwater cases. Since the Blackwater guards were working under a
contract with the State Department, they did not fall under the laws that
govern contractors working for the Defense Department overseas. Contractors
for the Defense Department are subject to criminal prosecution under the
Military Extraterritorial Jurisdiction Act, but it has never been clear
whether the law can be applied to contractors for the State Department, like
Blackwater. Those contractors generally have greater protections because of
the possibility that they might be engaged in fighting. Until last year, foreign
contractors also had immunity from prosecution under Iraqi law, so the
Blackwater guards were operating in a legal vacuum, noted Eric Jensen, a law
professor at Fordham University. “I would be concerned as a prosecutor that
even if you got past the immunization, and the problems with witnesses and evidence,
that you may not even have a law that supports the prosecution of a
Department of State contractor,” Mr. Jensen said. “Congress has tried to
address this, but it’s still a live question.” Mr. Riley cited these
reasons in a letter he wrote in April 2009 to Attorney General Eric H. Holder
Jr. about the case and also noted that he believed the government had
considered indicting Mr. Moonen to placate the Iraqi government. In a letter
sent to Mr. Riley on Monday, notifying him that they were dropping the case,
prosecutors also indicated that they would have difficulty proving their case
beyond a reasonable doubt, particularly in overcoming Mr. Moonen’s claims
that he shot in self-defense. Meanwhile, the government
said that the United States ambassador to Iraq, James F. Jeffrey, had to
notify the Iraqi government of the decision, and also provided government
officials a letter to be given to the family of the shooting victim, Raheem
Saadoun. This year, Mr. Saadoun’s family dropped a civil lawsuit against Mr.
Moonen and Blackwater after receiving a financial settlement. External link: http://www.nytimes.com/2010/10/21/world/21contractors.html |