Matters Blackwater (Merged thread)

[Greyhawk]

...but can't help but notice the repeated efforts in the linked piece to depict State as another victim of Dr Evil's diabolical scheme.

[jmm99]

Bourbon reported the pleadings in this case in opposition to the defense motion for summary judgment.

That motion was denied as reported by this article in the Nation:

Judge Refuses to Dismiss War Crimes Case Against Blackwater
By Jeremy Scahill
October 22, 2009

On Wednesday, a federal judge rejected a series of arguments by lawyers for the mercenary firm formerly known as Blackwater seeking to dismiss five high-stakes war crimes cases brought by Iraqi victims against both the company and its owner, Erik Prince. At the same time, Judge T.S. Ellis III sent the Iraqis' lawyers back to the legal drawing board to amend and refile their cases, saying that the Iraqi plaintiffs need to provide more specific details on the alleged crimes before a final decision can be made on whether or not the lawsuits will proceed. .... (more in article).

The opinion by Judge T.S. Ellis III is here (56 pp.).

It is well to keep in mind that the standards required to decide this type of motion are that all allegations made by the plaintiff are held to be true (even if the defendant makes contrary allegations), and the judge does not decide questions of fact between the contrary positions. In short, this kind of motion is suited for a case where the facts are conceded by both parties; and one of the parties is entitled to judgment as a matter of law.

Nonetheless, viewing the present allegations most favorably to the plaintiffs, the judge found that the plaintiffs had not stated valid Federal law claims; but allowed them to re-plead those claims to the extent it would not be futile.

As to the non-Federal law claims (based on Iraqi law), the judge stayed his hand until the plaintiffs re-pleaded their claims.

So, in effect, this is a decision non-decision.

[davidbfpo]

The BBC report:

A US federal judge has dismissed all charges against five guards from US security firm Blackwater over the killing of 17 Iraqis in 2007.
The five, contracted to defend US diplomatic personnel, were accused of opening fire on a crowd in Baghdad. District Judge Ricardo Urbina said the US justice department had used evidence prosecutors were not supposed to have.

Link:http://news.bbc.co.uk/2/hi/americas/8436780.stm

[jmm99]

the latter for dropping into my mailbox and gnawing my ankle. Here are two articles, Judge Drops Charges From Blackwater Deaths in Iraq (NYT) and Judge Dismisses Blackwater Case (Military.com).

from NYT
By CHARLIE SAVAGE
Published: December 31, 2009

WASHINGTON — In a significant blow to the Justice Department, a federal judge on Thursday threw out the indictment of five former Blackwater security guards over a shooting in Baghdad in 2007 that left 17 Iraqis dead and about 20 wounded.

The judge cited misuse of statements made by the guards in his decision, which brought to a sudden halt one of the highest-profile prosecutions to arise from the Iraq war. The shooting at Nisour Square frayed relations between the Iraqi government and the Bush administration and put a spotlight on the United States’ growing reliance on private security contractors in war zones.
.....
In a “reckless violation of the defendants’ constitutional rights,” the judge wrote, investigators, prosecutors and government witnesses had inappropriately relied on statements that the guards had been compelled to make in debriefings by the State Department shortly after the shootings. The State Department had hired the guards to protect its officials.
....
The guards had been told by State Department investigators that they could be fired if they did not talk about the case, but that whatever they said would not be used against them in any criminal proceeding.

Nevertheless, Judge Urbina found that “in their zeal to bring charges,” investigators and prosecutors had extensively used those statements, disregarding “the warning of experienced, senior prosecutors” that “the course of action threatened the viability of prosecution.”

“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,” Judge Urbina wrote.

The judge also criticized prosecutors for withholding “substantial exculpatory evidence” from the grand jury that indicted the defendants, as well as for presenting “distorted versions” of witnesses’ testimony and improperly telling the grand jury that some incriminating statements had been made by the defendants but were being withheld. ......

and

from M.c
January 01, 2010
Associated Press

A federal judge cited repeated government missteps in dismissing all charges against five Blackwater Worldwide security guards accused of killing unarmed Iraqi civilians in a case that inflamed anti-American sentiment abroad.

U.S. District Judge Ricardo Urbina dismissed the case against the guards accused of the shooting in a crowded Baghdad intersection in 2007.

The shooting in busy Nisoor Square left 17 Iraqis dead. The Iraqi government wanted the guards to face trial in Iraq and officials there said they would closely watch how the U.S. judicial system handled the case.

Urbina said the prosecutors ignored the advice of senior Justice Department officials and built their case on sworn statements that had been given under a promise of immunity. Urbina said that violated the guards' constitutional rights. He dismissed the government's explanations as "contradictory, unbelievable and lacking in credibility."
....
Urbina's ruling does not resolve whether the shooting was proper. Rather, the 90-page opinion underscores some of the conflicting evidence in the case. Some Blackwater guards told prosecutors they were concerned about the shooting and offered to cooperate. Others said the convoy had been attacked. By the time the FBI began investigating, Nisoor Square had been picked clean of bullets that might have proven whether there had been a firefight or a massacre. ....

Judge Urbina's 90-page opinion was written after he held a 3-weeks long merits hearing on the USG's use of the statements. His bottom line on the relevant law and facts (pp. 1-3 of pdf):

The defendants have been charged with voluntary manslaughter and firearms violations arising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contend that in the course of this prosecution, the government violated their constitutional rights by utilizing statements they made to Department of State investigators, which were compelled under
a threat of job loss. The government has acknowledged that many of these statements qualify as compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967), which held that the Fifth Amendment privilege against self-incrimination bars the government from using statements compelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendment automatically confers use and derivative use immunity on statements compelled under Garrity; this means that in seeking an indictment from a grand jury or a conviction at trial, the government is prohibited from using such compelled statements or any evidence obtained as a result of those statements.

The government has also acknowledged that its investigators, prosecutors and key witnesses were exposed to (and, indeed, aggressively sought out) many of the statements given by the defendants to State Department investigators. Under the binding precedent of the Supreme Court in Kastigar v. United States, 406 U.S. 441 (1971) and this Circuit in United States v. North, 910 F.2d 843 (D.C. Cir. 1990), the burden fell to the government to prove that it made no use whatsoever of these immunized statements or that any such use was harmless beyond any reasonable doubt.

Beginning on October 14, 2009, this court convened a Kastigar hearing to explore whether the government had made any use of compelled statements during its prosecution of the defendants. During this hearing, which spanned three weeks, the parties presented testimony from twenty-five witnesses, including the government’s entire prosecution team, the lead FBI agents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.

From this extensive presentation of evidence and argument, the following conclusions ineluctably emerge. In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and
in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury.[2] 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.

In short, the government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt. Accordingly, the court must dismiss the indictment against all of the defendants.

[2] In fact, the government has conceded that key testimony used to indict defendant Nicholas Slatten resulted from the exposure of grand jury witnesses to his compelled statements, and has moved for leave to dismiss the indictment against that defendant. See generally Govt’s Mot. for Leave to Dismiss Indictment Without Prejudice Against Def. Slatten.

I believe it is important to note that this is not a case where a clearly inculpatory confession is flipped and a clearly guilty on the facts defendant is set free. A great deal of conflicting evidence existed in this case; and as the judge noted, the USG suppressed exculpatory evidence in favor of the defendants (p. 83, n.63):

63 This reckless behavior was in keeping in with the way the prosecution conducted itself throughout the grand jury process, as it withheld the testimony of numerous percipient witnesses who had provided substantial exculpatory evidence to the first grand jury, presented the second grand jury with distorted and self-serving “summaries” of the accounts of other witnesses and implied to the second grand jury that the defendants had given inculpatory statements to State Department investigators which the government could not disclose to the grand jury because they were given “in exchange for immunity.” See supra Part II.A.9.

The defendants' DSS statements were mainly exculpatory. The USG used many of the facts in the statements (who, when and where weapons were fired - which the defendants claimed were in self-defense) to "build" its case. Which leads one to question what sort of contrived case the USG would have attempted to present at trail.

[tequila]

Pile-jumping a little bit, but Blackwater's anti-pirate navy has, in the words the USNI blog, sunk.

[Stan]

In short, the government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt. Accordingly, the court must dismiss the indictment against all of the defendants.

Whoa Mike ! Don't they always do that (and get away with it) ?

[Fuchs]

Pile-jumping a little bit, but Blackwater's anti-pirate navy has, in the words the USNI blog, sunk.

Wow, that's harsh.

It's more a roundhouse kick against fanboi milbloggers than a simple news about Xe. And he kicks one of his fellow USNI bloggers (Galrahn) by linking at his text at ID as a hype example.

"And few in the blogosphere bothered to do their due diligence–most just joined in the hype and began braying away (it’s a distressing habit that extends to the latest topic-of-the-day–be it ASBMs, piracy, or whatever–beware those who constantly hype the popular programs and suck up to the powerful people)."

Luckily, I ignored the sage completely on my blog and tried to keep the other fashion waves small as well.

The hyping of programs by MilBlogs is quite a large phenomenon, of course. The list of "enthusiastic" MilBlogs is long even if we ignore the commercial examples. Some MilBlogs sound like extensions of some public relations departments.

The SW Blog is not without fault either; the tunnel vision on the SW topic is a weak spot in itself.


About Xe; well, that's a symptom of a badly failed personnel policy and of red tape. It's not the problem itself.

[Presley Cannady]

Wow, that's harsh.

The bark is worse than its bite. Bottom line, Xe sought takers in the West and for whatever reason found none after 1 year. Whether or not this is an indictment of the business model generally or a matter of execution requires more information. At least one guy is already calling for a split decision. Personally, I think all the words Galrahn, Isenberg, Shipboard and the milblogging community in general have offered on this topic don't amount much of anything.

About Xe; well, that's a symptom of a badly failed personnel policy and of red tape. It's not the problem itself.

I think we'd need some hostile workplace statistics in civilian maritime to properly place these incidents in context. Xe's under a tremendous spotlight as it is; hardly conditions that favor drawing accurate conclusions from such limited information.

[Presley Cannady]

Pile-jumping a little bit, but Blackwater's anti-pirate navy has, in the words the USNI blog, sunk.

Complaint: there's too little widely disseminated trade news and background about security contracting.

Background: I currently rely on the sporadic attention of the mainstream press, milbloggers, and press releases for information. The politics behind contracting in the past decade or so have severely poisoned an already dry well.

Examples:
1) Springboard is an effectively nothing more than a useless, snarkier version of Matt Drudge when it comes to anything related to security contracting, especially where it concerns Xe. Case in point, the McArthur episode--after a year of "reporting" all I've learned is a) he really hates Xe, b) Xe hasn't won any contracts, and c) he really, really, hates Xe.
2) Galrahn loses interests after lampshading a new development.
3) David Isenberg is perpetually fixated on his "hiring locally" pet theory at the expense of broader developments in the field.

[BayonetBrant]

Complaint: there's too little widely disseminated trade news and background about security contracting.

Check out http://civiliancontractors.wordpress.com/