In case he/she/it didn’t remember, I thought I’d bring back our serial doubter lil’ joe’s comments about our saintly DoS:

â€some of these comments are carried away jus a lil too much.

for instance: there’s no U.S. authority checking who’s flying in and out of BIAP (Baghdad Int’l Airport). and there’s no charges filed in this incident. so what’s legally preventing the BW guys from going home? nothing. they don’t need Condi’s help. please.

spare us the dumb conspiracy theories. this is serious and getting seriouser by the day. whack theories about DoS â€helping†cover it up just obscure the gravity of all of it.

Posted by: lil’ joe | October 25, 2007 at 15:20â€

My bold. As I said then, Pfui!

You were right again – they won’t testify.

No civilian massacre here, folks, just move along. Everyone had immunity, the killings don’t count. Just one foot in front of the other…that’s it…Let’s keep that numb shuffle going now…Look! Over there!…

rfw

There’s a hint that some of them might do so. From today’s article:

A second official, however, said that not all the guards have cited their Fifth Amendment right against self-incrimination _ leaving open the possibility for future charges. The official declined to elaborate.

There were enough quoted in the NYT article of the other day to at least support some liability. Hard to bring charges, though, when someone has already gotten immunity–Just ask Lawrence Walsh.

Since the Blackwater folks were purported to be ex-Marines, I can see where Jodi is comin’ from. Jodi is enthralled with the Marines credo: â€Shoot ’em all and let God sort it out.â€

â€And here’s today’s candidate for credulous reporting award:†Damn EW, that is just as much an understatement as the stinking WaPo piece! This is freaking unheard of in law enforcement and criminal justice. NEVER have I heard of anything remotely like this. The ONLY explanation is that it was a concerted effort to shut the coming investigation down; there really is no other possibility I can reckon.

Mad Dogs – You are out of the doghouse so soon? Heh heh. I was aware that State had a Diplomatic Security Bureau or detail, and also utilized Marines at embassies; but I am shocked that they have the power to grant immunity or were conducting anything more than a cursory initial information gathering. The FBI is usually involved immediately in these type of issues in foreign locations. This is absolutely insane; if you grant immunity to everybody involved, what are you investigating? Answer: nothing, you are covering. Another scandal for Hugh’s list. Can we please impeach someone, anyone, in this Administration already?

EW – Thanks for the clarification that future charges are still possible, but I wonder if a ’semantics’ fast one isn’t being slipped by US here.

I mean, if you ’give’ all the Contractors Immunity so they can waive their 5th Amendment Rights against self-incrimination, but only some of them take the Immunity and some of them don’t – wouldn’t you conclude that, effectively, the Shooters were the ones given Immunity?

But it was disengenuously proffered as ’But, Everyone got [the offer of] Immunity!’

This incident has War Crime written all over it – a mass killing of innocent Civilians. Hmmmmm…seems to me there’s a precedent in Iraq for handling this kind of thing…

Condi’s been on the run from the misdeeds of her Lack of Integrity for years now.

Who would doubt that she will do everything she can to smother any incriminating evidence that would put her in the docket on another charge?

RFW – That bit about some of them not invoking the 5th will end the second they get decent lawyers; secondly, I think it still presents admissibility problems in light of the blanket immunity agreements because almost any information gleaned would be covered to some extent in the Garrity agreement letters. This pooch is totally screwed.

Another diplomatic action designed to win the hearts and minds of Iraqis who do(did?) not hate the U.S. Who are the geniuses behind Condi? My mistake, none exist.

Strike another blow for democracy and the rule of law in Iraq. The U.S. keeps proving that our system of governance and justice is superior to whatever it was they had.

I wonder what would have happened to Iraqi soldiers if they drove into a traffic circle, and on suspicion alone lit up
seventeen Iraqi civilians. I don’t think they would have needed immunity or have taken the time to prepare for court. They would have been executed. Wasn’t Saddam Hussein executed for doing something similar to this? The difference was that someone tried to assassinate Hussein. Were the Blackwater goons fired upon? I can’t wait until the U.S. has a parade welcoming the Blackwater people as heroes. It wasn’t as if they killed innocent civilians; after all, they were only Iraqis.

Let’s posit that the Department of State has no statutory authority to grant immunity from prosecution (as no one has yet identified that they do), and further that as I remember, the Supreme Court ruled that lying by law enforcement types during interrogations is not illegal, could these â€immunized†Blackwater folks still be prosecuted on the basis of the statements they gave to DoS investigators?

EW – I agree with your sequencing; but from everything I have read and seen, I don’t think that they saw this as business as usual for Blackwater. Maybe they thought that for the first day or so, when they actually had Blackwater write the reports, but it very quickly got away from that. It is my bet that the immunity across the board was given after that point, when it was starting to explode, and they actively wanted to preclude investigation and prosecution. It may well be possible to prosecute these chaps on â€independent†evidence; however, it may be more difficult than you think. Most â€independent†evidence is going to be in Iraq, and be founded upon Iraqi witnesses. Getting all that acquired, and over here in a courtroom, sufficient to convict without any statements from the involved Blackwater people, will not be easy. How much a couple of rogue guys willing to talk helps the effort will depend entirely on which guys they are in the scheme of things, and how much they are willing to truthfully say. I’ll tell you this much, if one of these guys came to me, I would tell him not to even think about opening his mouth. There is no other advice you could even contemplate giving. Interesting question is whether or not DOJ will now try splitting off the want to be talkers by giving them full transactional immunity. there are a lot of issues here and State drove a very big stake in the heart of the ability to prosecute; maybe not fatal, but certainly life threatening.

Cue Seymour Hersh with Condi in the Colin Powell role. Mai Lai was different in that most of the perps left the military before the crime was prosecuted, and so, IIRC, could not be prosecuted.

If Blackwater comes home, can any part of the government prosecute them? I believe that several have returned, but have yet to find a source.

These guys probably will never be procecuted in the US, and I’m not fully sure they should be. Members of the command and control structure should, but once firing starts it’s hard to know who fired first and a defensive reaction kicks in. There are probably a number of the guys who fired, but didn’t know they hadn’t been fired upon.

Each of these guys days of travelling outside the US is probably over. They could be served with papers and hauled before a foreign court – and they ain’t big enough fish to expect uncle to bail them out. They need to know they are being protected for now, but if they think they are anything but expendible in the eyes of this rouge government we’ve got, they are in for a rude shock.

At the end of the day these guys are the syptom, not the disease. And remember not a single officer or Intel agent has been procecuted for Abu-Graib. Yeah, a bunch of privates and corporals went rouge. Welcome to the most dangerous country in the world.

What do we know about emigrating to France?

Actually, as you read through, the story line becomes familiar: in an effort to determine the truth of a matter, immunity is granted to those involved. (With an exception retained for particularly gross offenders.) In other circumstances this would be called a â€truth and reconciliation commission.†South Africa set up one after apartheid fell. The same arrangement is fairly common in America in certain types of investigations. This is not the shocking news its being made out to be.

More info from the NYT:

Immunity Deals Offered to Blackwater Guards

State Department investigators offered Blackwater USA security guards immunity during an inquiry into last month’s deadly shooting of 17 Iraqis in Baghdad — a potentially serious investigative misstep that could complicate efforts to prosecute the company’s employees involved in the episode, government officials said Monday.

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…

now — on the proffered immunity:

what kagro x wrote at kos.

full-stop. i don’t mean to
seem like a buzz-kill here,
but some — perhaps many — of
these blackwater guys weren’t
citizens, and prosecuting them
was always going to be a stretch.

i do hate it — and i hate the
irony of this â€law and orderâ€
administration granting free
passes to every manner of
LOYAL criminal, while some
undoubtedly innocent detainees
rot away in gitmo. . .

but i am about out of good ideas.

impeach? indict? when? where?
how? unknown.

p e a c e

Hmmm and Mad Dogs – I am not sure I would take the mere statement in a NYT article as proof there was no authority on the part of the DSB to offer immunity. I would find it surprising that they do have such authority; but would sure like a better detailed explanation on the subject. Here is something you won’t like one bit: It is quite possible at this point that it does not matter whether they had the actual authority. Clearly there were official representatives of the US Government, including ranking officials from the State Department in Iraq, involved and the Blackwater employees were told, and led to believe, that they had the authority to offer the deals. In short, there was apparent authority, and the Blackwaters relied on it. I think there would be a very strong argument that even if there was no actual authority for the immunity that it would still have to be honored; either directly, or indirectly by considering the statements to be wrongfully obtained evidence that could not be used against them.

Here is one saving grace, if the immunity granted is truly of the Garrity variety, and is stated in writing as only that, it is one of the most limited types of immunity available. For one, it only applies to criminal prosecutions, so the evidence would be available for any civil or administrative process and, most importantly, can be used against others in criminal proceedings. I would assume that there were letters issued spelling out the Garrity agreement, so, depending on the nature of what was specifically written, it may be possible that each mercenary’s statements may be used against all the other mercenaries (but not his own statement against himself) and theirs against him. We shall see. However you look at it though, this is one giant clusterfuck; and I still have little doubt that it was done intentionally; they had no intention whatsoever of seeing these guys prosecuted. Even police departments trying to maintain the blue wall, and protect their officers, never give Garrity agreements to all of the officers involved in an incident.

I think DoS has already tipped their hand: It’s a huge ’gray’ area of the Law when it comes to Contractors in a War Zone. Therefore, it’s only right to immunize Blackwater from criminal liability while we re-write our DoS Contractor manual.

Some variation on Condi’s famous ’mistakes were made’ – that were nobody’s fault – but we’ll fix them, now that you mention it. But first, in order to encourage truth telling – Immunity all around! If we don’t give the immunity, we’ll never get candid feedback for improving our Contractor manual from the Contractors themselves!

And, after all, if we don’t have a solid Contractor manual, how can we hold the Contractors accountable to our exacting DoS standards?

That just wouldn’t be right.

The manual needs work!

bmaz, I agree with you, insofaras I too hope you’re wrong. Assuming for the moment that you’re right, I wonder whether there’s any sort of ’fraud under color of authority’ cause of action that could be used against the DoS’ers who (knowingly wrongly, if the Times story’s right) offered the immunity.

Hmmm.

Calm down, everybody. The AP article is not about letting the shooters off from prosecution; the article does not appear to claim that they were promised â€transactional†immunity from prosecution if they gave statements. This looks like an example of the AP letting a lay reporter write an article that should have been assigned to a lawyer or to an experienced police reporter who would at least have understood what the state-side rules would be in a similar situation. The shooters MAY be protected from the use of their statements as direct evidence against them, but it may be a thorny issue whether the shooters could even testify at trial without these statements to the DofS investigator being used in cross-examination to impeach them.

#1: bmaz is absolutely correct about the scope of the so-called â€Garrity†protections. The prohibition from using the statements arises from LEGAL REQUIREMENTS that law enforcement officers employed by the public must answer questions posed to them about anything that occurred in the course of their duties (and probably other areas of questions, too). â€Garrity†only prohibits the use IN A CRIMINAL INVESTIGATION OR TRIAL of the statement taken by the employer – it is â€use†immunity, not â€transactional†immunity. Like bmaz, I find it bizarre even to suggest that a principal can give â€Garrity†protection to an outside contractor who is not an employee.

#2: What immunity would folks in Iraq have been thinking about? Why, the immunity supposedly granted by Paul Bremer on his way out the door! (Article 17?) That would have been immunity from prosecution by the Iraqi authorities under Iraqi law. I can imagine the Dept of State reassuring the shooters that they had the protections of the Bremer immunity. Bremer’s grant of immunity purported to be transactional, too, no, JURISDICTIONAL – that is, Bremer intended to protect the â€contractors†from being subject to the jurisdiction of the Iraqi courts. Bremer may have been attempting to invoke the principle of â€extraterritoriality†to protect the contractors. But I think only the sovereign Iraqi government could grant â€extraterritorial†status to the contractors, through a document negotiated and signed by an American diplomat or general officer.

#3: Whether the statements to Dept of State investigators can be suppressed will probably depend upon the answer to this question: Did the shooter ask for any kind of immunity and did the DoS investigator have actual authority under relevant statutes and regulations to grant any kind of immunity? If the investigator had no actual authority, then whatever the investigator promised is not worth the paper he wrote it on. It would just be like a cop telling a â€person of interest†that â€Sure, I can get you immunity, if you just cooperate….†Since the cop has no authority to grant immunity or even to decide whether immunity should be granted, the cop’s assurance is at best a mis-statement and at worst a lie about his authority. But since the cop has no authority, his statement is just so much hot air. The DofS investigator here would be in the same position as that cop.

[For lay readers: between two private citizens, apparent authority will often protect the private party who changes his position for the worse in reliance upon the appearance of the other’s authority to make a binding promise. But for good policy reasons that would take me too long to explain here, a government employee must have actual authority to do something, and a private person dealing with the government assumes the risk that the government employee’s authority is authentic. If the private person relies on a statement that turns out to have been unauthorized, too bad for her/him!!]

#4: A more complicated question about the use of these statements at trial may revolve around whether the shooters asked for a chance to consult a lawyer before they gave statements to the DofS investigator. However, it is very unlikely that any of the shooters were â€in custody†when they gave statements; if not â€in custody,†anything a shooter said would be â€voluntary†as a matter of law in the view of 99.44% of judges. If one or more shooters did talk to a lawyer and the lawyer tried to draft some type of document to memorialize an assurance the statements would not be used to prosecute, such a document would take us back to the question of whether the government agent had the actual authority to give the assurance that was memorialized.

#5: How did this â€Garrity†reference get into the mix? Was it just some eyewash a friendly merc threw at an inexperienced reporter? Or is there an official-looking document somewhere in State’s files that refers to the â€Garrity†rules? If there is a document, it was probably either (a) the original contract with Blackwater; (b) the Blackwater contract with the shooters; (c) something written up by State at the request of a shooter who had a background as a law enforcement officer, so that he had heard about (and/or benefited from) Garrity; or (d) a document drafted by a Blackwater lawyer who was trying to balance being cooperative with State against not hanging his gunman completely out to dry. Oh, or (e) by someone at DofJ who introduced the notion either as a political appointee trying to scuttle the Blackwater investigation or as a career prosecutor or law enforcement officer who decided to be extra careful about avoiding any possible â€taint†from statements that could possibly — even with very low probability — be suppressed at some pre-trial proceeding.

This hub-bub could simply be the result of a prophylactic approach being followed by a savvy prosecutor who remembers that Ollie North and John Poindexter got away with perjuring themselves in Congressional testimony on the highly questionable theory that a significant amount of the evidence presented against them at their respective criminal trials could be traced ONLY to testimony those weasels were compelled to give at a Congressional Committee hearing under a grant of â€use†immunity.

Tempest in a teapot, folks. But if Dubya jumps in to argue to the media that the Blackwater folks cannot be prosecuted, and tries to protect them in any way, I’ll just add another Article of Impeachment to my draft.

Peace.

PS The real problems in prosecutions will come around issues such as whether the US government has the authority to prosecute a criminal act committed by a person acting under contract to a US government official in a foreign country. [i have no clue!] Or, perhaps, whether the shooters can be extradited back to Iraq to face prosecution by the Iraqi authorities. If the issue stays hot enough for long enough, the US and Iraq may negotiate some type of special tribunal of judges like the tribunal that finally heard the prosecution case against the Libyan agents who conspired to commit the Lockerbee plane bombing.

hardheaded

Laura Jakes Jordan aside, I think you’re missing the point.

Someone in State â€gave†the guards immunity. The guards were at almost negligible risk for prosecution in any case, because they were operating under Paul Bremer’s immunity. So the outrage about the guards being â€given†immunity is that State’s claims to be interested in solving this and holding someone accountable are proven false. Regardless of the legal implications, the political implications stand–that this was a cover-up.

Yes we did, No we didn’t:

http://www.cnn.com/2007/POLITI…..index.html

WASHINGTON (CNN) — No immunity deal was offered to Blackwater USA guards for their statements regarding a shootout in Iraq last month that left 17 Iraqi civilians dead, a senior State Department official told CNN Tuesday.