Blackwater Blunder: Missteps, Errors and Miscommunication Doomed Murder Case

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The Washington Post

Blackwater Blunder: Missteps, Errors and Miscommunication Doomed Murder Case

by
Del Quentin Wilber

Blackwater guards take part in a firefight in Najaf, Iraq. A 2007 shooting in Baghdad involving Blackwater contractors caused an uproar. (2004 Photo By Gervasio Sanchez/associated Press)

When its investigation into a deadly and politically sensitive Baghdad
shooting involving U.S. security contractors ran into major trouble,
the Justice Department quickly handed it over to Kenneth Kohl, a
seasoned and well-respected prosecutor.

Kohl, after all, had successfully prosecuted Colombian
narco-terrorists, overseen the investigation of the 2001 anthrax
attacks and won scores of hard-fought homicide trials. He seemed to be
the perfect prosecutor to lead a complex and thorny investigation into
the controversial actions of U.S. private contractors in a faraway war
zone.

So, how then, with all the forewarning of the case's pitfalls and
Kohl's experience and dedication, does the Justice Department now find
itself defending the prosecutor's conduct? How could such a
high-profile case, one that generated international headlines and
roiled U.S.-Iraq relations, implode so badly? On Dec. 31, a federal
judge threw out the charges against the five Blackwater security
guards.

The questions come as the Justice Department last month launched its
appeal of a scathing opinion by the well-respected judge, who ruled
that the conduct of Kohl and other prosecutors was so egregious that it
"requires dismissal of the indictment against all the defendants." The
guards had been accused of killing 14 Iraqi civilians and wounding 20
others in an eruption of gunfire and grenade explosions in a busy
Baghdad square on a sunny afternoon in 2007.

The stakes are high. It was the most serious incident involving
security contractors in Iraq or Afghanistan and raised profound
questions about the oversight of private U.S. guards in war zones.
Fallout from the incident was so intense that it forced Blackwater to
rename itself; it now goes by Xe Services. In a sign of the case's
continuing significance in U.S.-Iraq relations, Vice President Biden
took the unusual step of announcing the appeal of the case's dismissal
while on a trip to Baghdad.

Legal experts have said the Justice Department faces a difficult
task in winning a reversal, pointing to what they consider a detailed
and well-reasoned opinion by U.S. District Judge Ricardo M. Urbina, and
could risk further embarrassment if another set of judges comes to
similar conclusions. The Justice Department's reputation has already
been marred by prosecutorial misconduct in the trial of then-Sen. Ted
Stevens (R-Alaska) on corruption charges. A federal judge threw out
Stevens's conviction, and a lawyer appointed by that judge is
investigating Justice Department prosecutors over potential criminal
contempt violations.

A review of Urbina's decision, recently unsealed court papers and
interviews with dozens of prosecutors, investigators and defense
lawyers paint a less-than-flattering picture. They reveal a passionate
prosecutor who risked his life in Iraq to seek justice while pushing
legal boundaries and an investigation plagued by missteps,
miscommunication and bungling.

Even when Kohl's team took steps to protect the integrity of the
investigation, the procedures proved inadequate to withstand three
weeks of intense closed-door hearings.

Tough case to prosecute

Kohl declined to comment. But in an e-mailed statement, he wrote:
"All of us who were involved in this case felt an obligation to the 34
victims who were killed or wounded at Nisoor Square to do everything we
could, within the bounds of the law, to bring this case to trial in an
American courtroom.

"We don't want federal prosecutors to flinch at taking on tough
cases involving complex legal issues, and I worry that some of the
reaction to the court's ruling will have that effect." He declined to
elaborate.

Kohl, 50, grew up in the Chicago area and joined the Justice
Department in 1985, straight out of the Northern Illinois University
College of Law. He lives with his wife and two children in the D.C.
suburbs.

The prosecutor quickly rose through the ranks of the U.S. attorney's
office in the District. Several colleagues say Kohl never lost a
homicide trial. They described him as an aggressive and zealous
advocate for victims.

In more recent years, he was assigned national security cases,
including the years-long investigation into the anthrax attacks. In
2007, Kohl won a conviction against a Colombian rebel leader who took
three Americans hostage. The man was sentenced to 60 years in prison.

Alex Barbeito, an FBI agent who worked on that case, said Kohl was
meticulous and brave. "He came down to Bogota several times, despite
death threats to U.S. prosecutors," Barbeito said. "To me, he's exactly
the type of prosecutor an agent wants to handle complex international
criminal cases."

Colleagues say Kohl was fearless in his pursuit of the Blackwater
guards, visiting Baghdad three times. On one visit, while staying in a
trailer in the Green Zone, the compound was hit by rockets and mortar
shells, forcing Kohl to dive under his bunk for shelter.

"And yet he still went back," a fellow prosecutor wrote in an e-mail. "It would take a lot for me to go back there" after that.

The shooting that led to the criminal charges occurred Sept. 16,
2007, when 19 Blackwater Worldwide security guards were part of a
heavily armed convoy code-named Raven 23. At the time, Blackwater had a
contract to provide security for State Department officials in Iraq.

Just after noon that day, Raven 23 arrived in Nisoor Square, which
is near the Green Zone, to support other Blackwater teams in response
to a bombing.

Soon, one Raven 23 guard was shooting at a white car. Five others
fired machine guns and grenade launchers. By the time the explosions
stopped, at least 14 Iraqis were dead and 20 were wounded, authorities
have said.

Within hours, State Department investigators were questioning the
Blackwater guards. Four of the five guards later indicted in U.S.
District Court in Washington -- Paul Slough, Nicholas Slatten, Donald
Ball and Dustin Heard -- told investigators that they opened fire in
the square in self-defense. The fifth, Evan Liberty, did not say
whether he fired a shot but said the others responded to an attack by
insurgents.

Over the next few days, the guards gave written statements, and some were re-interviewed by State Department agents.

Guards' tainted accounts

The shooting caused an uproar. The Iraqi government insisted that
its citizens had been slain in an unprovoked attack. Meanwhile, the
State Department and Blackwater said the guards had been responding to
an ambush.

Caught in the middle was the Justice Department.

Ten days after the incident, State Department officials gave federal
prosecutors and FBI agents copies of their initial reports, which
included information from the guards' statements.

That caused an immediate problem. The guards had given written and
follow-up interviews. The statements had been given under assurances
that they would not be used in court and under warnings that the guards
could be fired if they didn't cooperate.

Because of the assurances, prosecutors and FBI agents should never
have been exposed to those accounts, so those agents and lawyers were
reassigned. The Justice Department then turned the case over to Kohl.

Kohl and another prosecutor, Stephen Ponticello, examined the
evidence and decided to treat the written statements as if they were
out of bounds, court records indicate.

But Kohl did not think that the initial oral interviews deserved the
same protection. To help Kohl navigate immunity questions, the Justice
Department assigned Raymond Hulser, an expert on such issues, to act as
a "taint" attorney. His job would be to screen material before it got
into the hands of prosecutors and agents and to provide legal advice.

Within weeks, according to court records, Hulser was warning
prosecutors and investigators to avoid the oral interviews because he
thought a judge might rule that they were also protected.

In November, Hulser wrote an e-mail detailing his concerns to a
Justice Department supervisor, Michael Mullaney, who forwarded the
comments to Kohl. "Got it," Kohl responded. "Thanks Mike."

Hulser made a string of similar warnings over the next few months.
Kohl says he never received the advice, and he denied having read the
e-mail to which he had responded.

By January and February 2008, Kohl and FBI agents were interviewing
the State Department investigators who had taken the guards' first oral
statements -- something that Hulser thought should have been avoided.

Kohl eventually obtained reports of the oral statements and used
those accounts in search warrants to obtain drafts of the guards'
written statements. Hulser was never told of the search-warrant effort.

A grand jury indicted the five guards in December 2008 on
manslaughter and weapons charges. A sixth guard, Jeremy Ridgeway,
pleaded guilty to manslaughter charges.

By October, Urbina was holding closed-door hearings to determine
whether the guards' statements had improperly influenced the
investigation.

Kohl testified at the hearings, while other Justice Department
lawyers defended the government's case. They argued that the oral
statements were fair game and that any taint from the written accounts
was harmless.

The guards' attorneys, who were paid by Blackwater, argued that
prosecutors should have avoided the statements and that the case was
too damaged to continue.

Urbina ruled in favor of the guards, writing that it was
"objectively reasonable" for the contractors to believe that their
first interviews were protected because they had given such statements
in past shootings. But he didn't stop there.

The judge chastised prosecutors for not heeding the advice of Hulser
and other experts. He also said that he did not believe Kohl's
assertion that he had not received the expert's advice until it was too
late.

The protected statements infected the entire case, Urbina wrote, and
prosecutors even exploited them to decide whether to charge two of the
guards. He was particularly perplexed that Kohl had thought it proper
to use the oral accounts in search warrants for written statements,
Urbina added.

The judge also accused prosecutors of not giving grand jurors
evidence that was helpful to the guards. He found that Kohl and other
prosecutors did not take steps to shield grand jurors from tainted
testimony, particularly from three Blackwater guards who read the
defendants' written statements or news stories describing them.

More subtle actions also irked the judge.

Kohl, for example, went out of his way to tell the grand jury that
the five guards had given immunized statements to investigators, the
judge wrote. Urbina felt that Kohl was playing dirty, "to color the
grand jury's thinking," by alluding to the guards' statements without
further elaboration.

"The explanations offered by the prosecutors and investigators in an
attempt to justify their actions and persuade the court that they did
not use the defendants' compelled testimony were all too often
contradictory, unbelievable and lacking in credibility," wrote Urbina,
voicing astonishment that such a "seasoned and accomplished" lawyer
could make so many blunders.

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