Blackwater Guards Granted Immunity

At first blush this looks like a massive blunder. In The New York Times:

State Department investigators offered Blackwater USA security guards immunity during an inquiry into last month’s deadly shooting of 17 Iraqis in Baghdad — a potentially serious investigative misstep that could complicate efforts to prosecute the company’s employees involved in the episode, government officials said Monday.

The State Department investigators from the agency’s investigative arm, the Bureau of Diplomatic Security, offered the immunity grants even though they did not have the authority to do so, the officials said. Prosecutors at the Justice Department, who do have such authority, had no advance knowledge of the arrangement, they added.

Most of the guards who took part in the Sept. 16 shooting were offered what officials described as limited-use immunity, which means that they were promised that they would not be prosecuted for anything they said in their interviews with the authorities as long as their statements were true.

The case has been taken away from the diplomatic service and given to the FBI. It’s worth noting that in matters of war nothing should be taken at first blush. Voice of America reports that the immunized guards could still be prosecuted:

But at a news briefing Tuesday, State Department Spokesman Sean McCormack said the immunity extended to the Blackwater Guards was limited and would not entirely shield them from federal prosecution.

"The Department of State cannot immunize an individual from federal criminal prosecution," said McCormack. "And the kinds of, quote, immunity that I've seen reported in the press would not preclude a successful criminal prosecution."

McCormack said the State Department would not have asked the U.S. Federal Bureau of Investigation and the Justice Department to get involved in a case that they could not potentially prosecute.

It’s hard to be convinced. Especially after reading the actual wording of the immunity deal, as reported by ABC News:

In each of the statements, the guards begin by saying "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, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001."

Among the most critical side products of the war in Iraq are the revamping of out-of-date strategies and the evolution of inchoate policies in uncharted waters. General Petraeus offered a miraculous example of the former (charges of betrayal not withstanding) by literally rewriting the book on counter-insurgency. One hopes to see the latter grow out of the Blackwater disaster. In September, the U.S. House of Representatives approved a bill that would bring State Department contractors under the same legal status as Pentagon Contractors. Additionally, the Iraqi cabinet just approved draft legislation to lift contractor immunity. I’m not a Blackwater hater, but I don’t need to be to see that armed U.S. civilians shouldn’t enjoy supralegal status in foreign states. The New York Times sums up the murk:

“Blackwater employees and other civilian contractors cannot be tried in military courts, and it is unclear what American criminal laws might cover criminal acts committed in a war zone. Americans are immune from Iraqi law under a directive signed by the United States occupation authority in 2003 that has not been repealed by the Iraqi Parliament.

A State Department review panel sent to investigate the shootings concluded that there was no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to address the problem.

The House overwhelmingly passed a bill this month that would make such contractors liable under a law known as the Military Extraterritorial Jurisdiction Act. The Senate is considering a similar measure.

Some legal analysts have suggested that the Blackwater case could be prosecuted through the act, which allows the extension of federal law to civilians supporting military operations.

But trying a criminal case in federal court requires guarantees that no one has tampered with the evidence. Because a defendant has the right to cross-examine witnesses, foreign witnesses would have to be transported to the United States.

Several legal experts said evidence gathered by Iraqi investigators and turned over to the Americans, even within days, would probably be suspect.

Another law that may be applicable covers contractors in areas that could be defined as American territory, like a military base or the Green Zone. But the Blackwater security contractors in the Sept. 16 shootings were in neither place.

Without sounding dismissive, the details are the stuff of law tomes and legal journals. However, no democracy—neither an established one like the U.S., nor a struggling one like Iraq—can leave matters of life and death in the exclusive hands of robed scholars. And they certainly can’t leave such concerns up to a handful of investigators in the State Department. Part of the problem stems from the U.S. legal system’s extensive overuse of plea-bargaining and immunity. Investigators are more concerned with making the case than they are with rounding up the bad guys. I’m no international law fetishist, but in the World Court there is no immunity for war crimes or crimes against humanity. That’s a sweeping declaration we can all get behind, first blush or not.