The State Department offered limited immunity to Blackwater contractors involved in the shooting deaths of 17 Iraqi civilians last month, despite having no authority to do so and an ongoing FBI investigation.
A front page piece in today’s WaPo by Karen DeYoung discusses the problems this has caused.
FBI agents called in to take over the State Department’s investigation two weeks after the Sept. 16 shootings cannot use any information gleaned during questioning of the guards by the department’s Bureau of Diplomatic Security, which is charged with supervising security contractors.
Some of the Blackwater guards have subsequently refused to be interviewed by the FBI, citing promises of immunity from State, one law enforcement official said. The restrictions on the FBI’s use of their initial statements do not preclude prosecution by the Justice Department using other evidence, the official said, but “they make things a lot more complicated and difficult.”
[…]
It is unclear when or by whom the grant of immunity was explained to the guards. Under federal case law applying to government workers, only voluntary answers to questions posed by the employing agency can be used against them in a criminal prosecution. If an employee is ordered to answer under threat of disciplinary action, the resulting statements cannot be used.
“You can’t use the fruits of that statement,” another law enforcement official said. “It doesn’t prevent them from talking [to the FBI], but . . . why run the risk? I think any lawyer would advise against it. “
David Johnston of the NYT adds:
The State Department investigators from the agency’s investigative arm, the Bureau of Diplomatic Security, offered the immunity grants even though they did not have the authority to do so, the officials said. Prosecutors at the Justice Department, who do have such authority, had no advance knowledge of the arrangement, they added.
[…]
The immunity deals were an unwelcome surprise at the Justice Department, which was already grappling with the fundamental legal question of whether any prosecutions could take place involving American civilians in Iraq.
Blackwater employees and other civilian contractors cannot be tried in military courts, and it is unclear what American criminal laws might cover criminal acts committed in a war zone. Americans are immune from Iraqi law under a directive signed by the United States occupation authority in 2003 that has not been repealed by the Iraqi Parliament.
A State Department review panel sent to investigate the shootings concluded that there was no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to address the problem.
Johnston goes into significant detail on both the legal and practical obstacles to trying these people in U.S. courts, given the rules of evidence. Suffice it to say, it’s a mess.
Hilzoy‘s right on this one: “the main problem is not individual trigger-happy contractors but a larger structural point: the absence of any legal framework for holding contractors accountable.” She concedes in a footnote that this overstates the matter somewhat but for all practical purposes, these people are above the law.
That’s got to change going forward. Practically speaking, we need private security contractors for diplomatic escort and similar duties. We don’t have the soldiers to divert to this mission and it would be both a poor use of our military assets and a suboptimal way to provide security. Still, these people’s actions reflect on the United States and can substantially impact the mission; they need to be under our control.
