On December 31st, U.S. District Court Judge Ricardo Urbina dismissed the widely publicized case against five employees of the company formerly known as Blackwater USA for weapons and manslaughter charges. In 2007, the indicted Blackwater agents claimed they fired their weapons into the crowded Nisour Square in Baghdad in response to an attack by insurgents. The shooting left 17 unarmed Iraqi civilians dead.
While the indictment as a whole was dismissed against every defendant, they do not have quite as much to celebrate in the New Year as the statements by their lawyers would have the public believe. Judge Urbina did not dismiss the case due to any inherent showing of innocence on the part of the defendants, but because the DOJ prosecutors, in "reckless violation of the defendants' constitutional rights," mishandled evidence stemming from key statements made by the defendants after the debacle in Nisour Square.
After the initial shooting, the State Department, under which Blackwater (now known as Xe Services) worked, told the defendants they were required to give detailed statements about the shooting, including whether or not they actually fired their weapons, under threat of loosing their jobs. Some of the statements, such as those admitting the weapons were fired, were crucial, as forensic investigators had not been able to match bullets found at the scene with any specific weapons. According to reports, the defendants were told by government attorneys the statements would not be used as evidence against them in any criminal proceeding.
In his opinion, Judge Urbina found that those statements to the government were actually used extensively by the prosecution to build their case against the defendants. They were used, for example, to question witnesses, apply for search warrants and were presented to the grand jury, all against the advice of more senior DOJ attorneys.The use of a statement by a defendant who is forced to give evidence against him or herself is a direct violation of the 5th Amendment.
It has been widely reported that the Iraqi government will be watching closely how this case is handled by the U.S. judicial system. As they should. But, any willingness on the part of the international community to see the Judge's decision as a dead end for the victims, or a miscarriage of justice, should be tempered by an understanding of the options still available to the Department of Justice and to the victim's families.
As many news outlets have reported, the Department of Justice may appeal the decision, or may file new indictments clean of evidence tainted by the defendants' statements. In addition, the New York Times reports, several civil suits brought by the families of the Iraqis killed in the Nisour Square shooting are still making their way through courts. In addition, a grand jury in North Carolina, where Xe is based, is conducting a broad investigation into the company, which includes accusations of weapons smuggling and bribery of Iraqi officials.
The adherence to the rule of law sometimes results in outcomes that are unpalatable, but in the end, it is a crucial building block in the structure of a stable democracy. That is indeed something new and less new democracies must watch closely.
- Judge Drops Charges From Blackwater Deaths in Iraq (NY Times)
- U.S. Constitution, 5th Amendment (FindLaw)
- Fifth Amendment Right Against Self-Incrimination (FindLaw)
- Memorandum of Dismissal of Charges Against Blackwater Guards (NY Times)
- From Errand to Fatal Shot to Hail of Fire to 17 Deaths (NY times, 2007)
- Constitutional Protections for Criminal Defendants (provided by Law Offices of Jeffrey W. Goldblatt Esq.)
- Murder versus Manslaughter (provided by Mark A. Perez)