Efforts to Prosecute Blackwater Are Collapsing

Eric Jensen in The New York Times, October 20, 2010

Media Source

By JAMES RISEN

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.