Guards in Iraq got offer of immunity

Blackwater shooting probe is impeded

October 30, 2007|By New York Times News Service.

WASHINGTON -- State Department investigators offered Blackwater USA security guards immunity during an inquiry into last month's deadly shooting of 17 Iraqis in Baghdad, which could complicate efforts to prosecute the company's employees involved in the episode, government officials said yesterday.

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, said they had no advance knowledge of the arrangement.

Most of the guards who took part in the Sept. 16 shooting incident were offered what officials described as limited-use immunity, which means that they were promised they would not be prosecuted for anything they said in their interviews with the authorities as long as their statements were true.

The immunity offers were first reported yesterday by the Associated Press.

The officials who spoke of the immunity deals have been briefed on the matter but agreed to talk about the arrangement only on the condition of anonymity because they have not been authorized to discuss a continuing criminal investigation.

The precise legal status of the immunity offer is unclear. Those who have been offered immunity would seem likely to assert that their statements were legally protected, but some government officials say the offer of immunity was never officially sanctioned by officials at the Justice Department.

State Department and Justice Department spokesmen would not comment on the matter. A State Department official said, "If there's any truth to this story, then the decision was made without consultation with senior officials in Washington."

A spokeswoman for Blackwater, Anne Tyrrell, said, "It would be inappropriate for me to comment on the investigation."

Justice Department surprised

The immunity deals were an unwelcome surprise at the Justice Department, which was grappling with the fundamental legal question of whether any U.S. civilians in Iraq could be prosecuted.

Blackwater employees and other civilian contractors cannot be tried in military courts, and it is unclear what U.S. criminal laws might cover criminal acts committed in a war zone. Americans are immune from Iraqi law under a directive signed by the U.S. 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 is no basis for holding non-Defense Department contractors accountable under U.S. law and urged Congress and the administration to urgently address the problem.

The House overwhelmingly passed this month a bill that would make such contractors liable under a law known as the Military Extraterritorial Jurisdiction Act. The Senate is considering a similar measure.

Some legal analysts have suggested that the Blackwater case could be prosecuted through the Military Extraterritorial Jurisdiction Act, which allows the extension of federal law to civilians supporting military operations.

Trying a criminal case in federal court requires guarantees that no one has tampered with the evidence, however. Because a defendant has the right to cross-examine witnesses, foreign witnesses would have to be transported to the United States.

Several legal experts said evidence gathered by Iraqi investigators and turned over to the Americans, even within days, would probably be suspect.

The government has transferred the investigation from the diplomatic service to the FBI, which has begun re-interviewing Blackwater employees who did not receive immunity in an effort to assemble independent evidence of possible wrongdoing.

Security official resigned

Richard Griffin, chief of the State Department's Bureau of Diplomatic Security, resigned last week, apparently in connection with problems concerning his supervision of Blackwater.

In addition, the Justice Department reassigned the investigation from prosecutors in the criminal division who had read the State Department's immunized statements to prosecutors in the national security division who had no knowledge of the statements.

Such a step is usually taken to preserve the government's ability to argue later in court that any case it has brought was made independently and made no use of information gathered under a promise that it would not be used in a criminal trial.

The episode began as a convoy carrying U.S. diplomats and protected by Blackwater guards approached Nisoor Square at midday on a Sunday in Baghdad.

24 were wounded

A second Blackwater convoy, which was positioned in the crowded square in advance to control traffic, opened fire, killing 17 civilians and wounding 24.

Blackwater's original statement concerning the shooting said the company's guards "acted lawfully and appropriately in response to a hostile attack," and initial assertions by the State Department stated that the convoy had come under small-arms fire.

Subsequent accounts from witnesses and Iraqi investigators indicated that the convoy had not been attacked and that the Blackwater guards fired indiscriminately around the square.

U.S. soldiers who investigated the scene of the shootings afterward found no evidence of an attack on the convoy.

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