Guest Column: New Year, same old story: Blackwater continues to put lives at risk

January 6, 2010

By Dan Kenney

No private armies

This may be the first day of a new year, and the start of a new decade, but it is also a day that marks the continuation of an old, sad story of injustice. On New Year’s Eve, Judge Ricardo Urbina dismissed all charges against five Blackwater contractors who had been indicted for 14 counts of manslaughter, 20 of attempting to commit manslaughter and one weapons violation. This New Year’s Eve gift to Blackwater was bad news for the Iraqi families expecting the American judicial system to deliver justice for the deaths and injuries of their loved ones.

The old story is that, once again, by using the system to their benefit, the contractors accused of shooting innocent, unarmed Iraqi citizens may never be brought to court.

Judge Urbina’s written 90-page opinion does not dispute the investigations by the Iraqi police, the U.S. Army, and the F.B.I. The Iraqi and U.S. investigators found that the guards of the Raven 23 convoy had indiscriminately fired on unarmed civilians in an unprovoked and unjustified assault in the crowded Nisoor Square of Baghdad on Sept. 16, 2007. Witnesses and reports stated some of the victims were shot in the back trying to flee the scene. A 9-year-old boy riding in the back seat of his father’s car was shot in the head and died. None of the investigators was able to find any physical evidence to support the guards’ contentions that they had been fired upon. The F.B.I. stated in their report that the Blackwater guards recklessly violated American rules for the use of lethal force. The U.S. military investigators went further, saying all the deaths were unjustified and potentially criminal. Iraqi authorities called the shootings “deliberate murder.”

Judge Urbina labeled the misconduct of the trial team, headed by Assistant U.S. Attorney Kenneth Kohl, as a “reckless violation of the defendants’ constitutional rights.” This violation occurred when U.S. attorney Kohl and Department of Justice trial lawyer Stephen Ponticello built their case around the written statements made by the contractors immediately following the shooting. The judge stated: “In short, the government has utterly failed to prove that it made no impermissible use of defendants’ statements or that such use was harmless beyond reasonable doubt. Accordingly, the court must dismiss the indictment against all the defendants.”

The rest of the story

However, in the background section of the opinion, it becomes obvious that this violation could have been avoided. Judge Urbina describes in detail the many instances where Kohl and the trial team ignored the directives and warnings of Raymond Hulser, a deputy chief in the Public Integrity section of the Criminal Division, who was assigned as the “taint attorney.” His responsibility was to prevent prosecutors and investigators handling the investigation from using statements that could contaminate the case, which could cause it to be dismissed.

On page 82 of the written opinion, Judge Urbina points out that the government’s attempts to characterize Kohl’s failure to heed the warnings and directives of Hulser as a mere “miscommunication” to be “simply implausible.”

Judge Urbina writes, “These inconsistent, extraordinary explanations (given in interviews by Kenneth Kohl) smack of post hoc rationalization and are simply implausible.”

“The only conclusion,” the judge continued, “the court can draw from this evidence is that Kohl and the rest of the trial team purposefully flouted the advice of the taint team when obtaining the substance of the defendants’ compelled statements, and in so doing, knowingly endangered the viability of the prosecution.”

As U.S. Rep. Jan Schakowsky (D-Ill.) said in the Los Angeles Times, “We’re going to have to understand how this happened.” The Iraqi families and the U.S. citizens who are funding companies like Blackwater, as well as paying for the investigations, have a right to know the motivation behind such conduct by a seasoned U.S. attorney. (It is important to note that Kenneth Kohl was also the U.S. attorney assigned to the anthrax case. He was appointed by the George W. Bush administration.)

The loophole

You may recall Order 17, put in place by Paul Bremmer in 2003, which provided immunity for contractors operating in Iraq. The order was struck down in the latest U.S. security agreement with Iraq. However, the U.S. State Department replaced it with the “Hunter Memorandum.” Regional Security Officer Mark Hunter authored a memorandum titled “WPPS (Worldwide Personnel Protective Services, a company of Blackwater) On-Duty Discharge of Firearms Reporting Procedures” (“the Hunter Memorandum”).

The Hunter Memorandum required all Blackwater personnel involved in a shooting incident to report immediately for debriefing by the State Department. After the debriefing, any employee who discharged his weapon was to be given a sworn statement form attached to the memorandum. The statement that the five contractors signed included this line, “I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information.”

This statement is required, and an employee may be terminated for failure to sign it. This is commonly referred to as a “Garrity warning” or “Kalkines warning.” The Hunter memorandum and the attached Sworn Statement form were standard procedure to be followed after any shooting incident. So, this is the loophole that allowed any guard involved in a shooting to avoid accountability for his actions.

This loophole is still in place, and you can be sure it is in Afghanistan as well.

What next?

It was reported that the five contractors were “overjoyed” and that a “great burden had been lifted from their shoulders.” However, it was a startling blow for the Iraqi government and citizens. As one Iraqi lawmaker said in a speech to Iraq’s parliament, “Ask the Iraqi courts to release all the (Iraqi) defendants…sentenced to death for killing Americans in Iraq, as an act of reciprocity with the U.S. judicial system,” he said.

An adviser to the Iraqi council of ministers said: “This is very bad for the overall look of the United States outside its borders. It’s very important for the Americans to realize that this will work against their interests in Iraq and other places.”

Although Judge Urbina’s decision would make it difficult to reinstate the original charges, the guards could still be prosecuted for allegedly providing false information in their statements. There is also the possibility the government will bring obstruction of justice charges against Blackwater managers.

There is also the civil case the Center for Constitutional Rights has in the courts against Blackwater. The Iraqi government said it will support this lawsuit as well as ask the U.S. Justice Department to review the criminal case.

And the story goes on

So, the old story goes on. The safety of our soldiers and our citizens has been put at risk by the careless actions of hired private military and security contractors. The pattern of unaccountability is also continued by providing immunity for all contractors, regardless of how murderous their actions may be.

We must ask ourselves and those who represent us, how much longer will we allow those whom we fund to get away with murder in our name?

From the Jan. 6-12, 2010 issue

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