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 Iraq were told. Most of the Blackwater shooters were questioned by State Department Diplomatic Security investigators with the understanding that their statements and information gleaned from them could not be used to bring criminal charges against them, nor could they be introduced as evidence. In other words, "Anything you say can't and won't be used against you in a court of law."
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 Baghdad, the crime scene had been tainted and some of the perpetrators questioned with the alleged immunity provision. "To rely on non-law enforcement to conduct sensitive law enforcement activities makes no sense if you want impartial justice," says Melanie Sloan, a former federal prosecutor who currently serves as Executive Director of Citizens for Responsibility and Ethics in Washington. "This investigation has already taken so long and it looks like the State Department has impeded the possibility of a successful criminal investigation." The Washington Post reported that "Some of the Blackwater guards have subsequently refused to be interviewed by the FBI, citing promises of immunity from State."
This is hardly the first indication that the government's investigation of the Nisour Square shootings was lacking in integrity and impartiality. The State Department's initial report on the shooting was drafted by a Blackwater contractor on official US government stationary. The FBI team initially dispatched to Baghdad to investigate Blackwater was to be guarded by Blackwater until Sen. Patrick Leahy raised questions about the arrangement forcing the Bureau to announce it would be guarded by official personnel and not personnel from the same company it was investigating.
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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 Baghdad led by veteran diplomat Patrick Kennedy to review the department's private security force, the team returned with the conclusion that it "is unaware of any basis for holding non-Department of Defense contractors accountable under US law."
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 US civilian law, not under military law and certainly not in Iraqi courts, which have been banned by the US occupation authorities from going after private contractors.
What is so often lost in this new debate on accountability and oversight is this fact: private contractors now outnumber regular soldiers on the Iraq battlefield. The military--with its massive bureaucracy--has been unable or unwilling to effectively monitor the actions of its soldiers and prosecute them for crimes. Who will effectively oversee the 180,000-strong shadow corporate army? Will FBI teams really be running around Iraq chasing allegations (ever increasing) of contractor crimes and misconduct? Who will guard the investigators? Who will interview Iraqi witnesses? Where will the funding come from? Who will arrest the heavily-armed mercenary alleged to have committed a crime, particularly when he was doing exactly what he was supposed to do in keeping VIP US officials alive in Iraq?
While there may be some token prosecutions that stem from the recent uptick in reporting on contractor crimes in Iraq, the reality is that without private forces from Blackwater and its ilk, the US occupation of Iraq would be untenable. Nothing will be done that would actually jeopardize the use of such forces in the war zone. While Blackwater's conduct in Iraq is horrifying, it is important to remember that US ambassadors--all four who have served under the Iraq occupation--owe their lives to Blackwater's shoot-first-and-never-ask-questions cowboy tactics. They are the reason the company can brag it has never lost an American life it was protecting. Blackwater does its job and while it is essential to prosecute its operatives for their crimes, the ultimately responsible party is the entity that hired them and deployed them armed and dangerous in Iraq.
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.
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