Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
There is one overriding reason for last week's dismissal of charges against five Blackwater guards who opened fire in a public square in Baghdad, killing 17 people and wounding at least 20 more: They were granted immunity almost immediately following the incident. And the DOJ lawyers who later decided to pursue criminal charges knew this was going to be a problem, according to the New York Times:
The sudden blow to the case against the former Blackwater security guards over a shooting that killed 17 Iraqis and wounded at least 20 may have come as a surprise to the public in Iraq and the United States, but the legal problem that the judge cited Thursday when he threw out the indictments was obvious to American government lawyers within days of the shooting.The issue was that the guards, as government contractors, were obligated to give an immediate report of what they had done, but the Constitution prevents the government from requiring a defendant to testify against himself, so those statements could not be used in a prosecution.
Less than two weeks after the shootings in Nisour Square in Baghdad in September 2007, lawyers at the State Department, which employed the guards, expressed concern that prosecutors might be improperly using the compulsory reports in preparing a criminal case against them, according to the decision.
The prosecutors were also concerned, even using what they called a "taint team" to try to prevent information in the guards' compulsory statements from influencing the investigation, according to the 90-page ruling by Judge Ricardo M. Urbina of Federal District Court in Washington. The judge said the prosecutors had failed to take "common sense precautions" to avoid the problem.
Because they were required to provide testimony of what happened -- compelled testimony -- that testimony was automatically prohibited from being used in court by the 5th amendment. Could it be that this requirement was put into the contracts for Blackwater intentionally in order to ensure such immunity in a legal setting? If that question sounds crazy. I'll remind you that the Bush administration insisted on a rule in Iraq that gave those same contractors total immunity under Iraqi law. That rule was instituted by the Coalition Provisional Authority before power was handed over to the Iraqis.
I certainly wouldn't be surprised to find out they wanted immunity under both Iraqi and American law. Indeed, if they wanted there to be legal responsibility for contractors under American law, the contract could easily have stipulated that.
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Is there anything that can be done to revoke immunity?
For example, could Congress invalidate that part of the treaty with Iraq and then the DoJ could extradite them to be tried in Iraq? (I know Congress would do no such thing, just wondering if it's possible.)
I don't know enough about the law to know how such flagrantly unjust immunity could be removed.
Posted by: SteveWW | January 7, 2010 9:53 AM
No - immunity cannot be revoked! If it could, why would anyone accept immunity.
The real problem is not that immunity was given; the real problem is that the prosecutors failed to take precautions against tainting the evidence *even after they were warned by more senior prosecutors*.
So I would ask a similar, but slightly different question: Did the prosecutors deliberately taint the evidence, knowing this would cause the case to get thrown out, or was this just simple incompetence?
In the final analysis, the judge's decision is the correct one. This is not a good outcome, but it is necessary to protect our constitutional rights. People in Iraq are not likely to understand that (nor are many people in the good ol' USofA!).
Posted by: uqbar | January 7, 2010 10:05 AM
IANAL, but I don't think there is a way under US law. Issues of double-jeopardy and prohibitions of self-incrimination may make it impossible to criminally prosecute them.
On the other hand, if they violated the Geneva Convention or committed “Crimes Against Humanity”, then no action of US agents can grant them immunity from prosecution. International authority to prosecute for war crimes only comes into play after the host country is unable or unwilling to prosecute. There is no statute of limitations on war crimes, so once the US drops efforts to prosecute them, then they are “free game” for any other prosecutor anywhere in the world that wants to prosecute them.
The only way to avoid potential prosecution under international law would be to be prosecuted under US law. They might plead guilty and receive a plea bargain sentence, then they would not be subject to prosecution elsewhere for the same crimes. Pleading guilty, getting a light sentence of a couple of years might protect them from a trial and sentence of 20 years if they ever travel outside the US.
I think it was a set-up so they couldn't be tried. Anytime immunity is granted willy-nilly as it was in this case that is the obvious thing to think about. I remember thinking about it at the time when immunity was granted. Who ever made the decision to proceed with the granting of immunity knew (or should have known) what they were doing and what the consequences were going to be.
Posted by: daedalus2u | January 7, 2010 10:24 AM
I could be wrong but I don't think immunity is still in any treat between Iraq and the US, didn't the Iraqi parliament get it removed last year? The problem would be that at time there was immunity under the Provisional Authority and it would be difficult and dangerous to make new laws retroactive.
Posted by: Matty | January 7, 2010 10:31 AM
On a side note: isn't torture a form of government compulsion to testify against oneself?
Posted by: rpsms | January 7, 2010 10:49 AM
rpsms,
Yes, which is why coercive means of obtaining testimony are forbidden. See, for example, Miranda v. Arizona (from whence we get the famous Miranda warning--but that was only one aspect of the case). Of course "how much" coercion is necessary to trigger a constitutional violation is an on-going subject of debate. But that's why the right-wingers don't want alleged terrorists tried in court. They think if they can find another venue, torture-induced testimony will be allowable. Of course they also just get stiffies at the thought of torturing bad guys.
What I wonder about in this case is if they can obtain enough evidence to try these guys without using their reports? Surely there were numerous witnesses--I wonder if they can be found and persuaded to talk?
Posted by: James Hanley | January 7, 2010 10:57 AM
James Hanley @ 6:
I'd change to:
Heh, heh, heh.
Posted by: Michael Heath | January 7, 2010 11:09 AM
My understanding of legal matters is rather limited, but I was wondering why we don't just turn these people over to the Iraqis? Does the immunity prevent that as well?
Posted by: Colin | January 7, 2010 11:26 AM
Re #7:
Since when did James Hanley and Michael Heath start channeling Beavis and Butthead ???
Has the world turned upside down today? What's next?? Will Pedophile Asshat Pat come out of the closet too?
I feel an armageddon coming on.......
Posted by: doctorgoo | January 7, 2010 11:46 AM
Recently captured war criminal Radovan Karadzic made the claim that the United States (specifically Richard Holbrooke) made a promise of unity from if he withdrew from public life. Ruling on the issue, the ICTY basically stated even if that was true, it only applies to the United States and not to them and that Mr. Karadzic's ass wasn't going anywhere.
So, these guys are fair game if someone guys to Belgium and puts together a case there.
Posted by: History Punk | January 7, 2010 11:47 AM
Michael Heath---Correction gleefully accepted!
Doctorgoo--I am Beavis! I can do a spot on imitation, down to the laugh (I'm no good with Butthead, though; I'm in awe of Mike Judge for being able to do so many different voices).
Posted by: James Hanley | January 7, 2010 11:50 AM
Since we're doing rewrites...
Of course right-wingers fantasize of stiffies at the thought of torturing
bad guyspeople they don't like.Posted by: xebecs | January 7, 2010 12:03 PM
I never really got Beavis and Butthead (in spite of my having similar tastes in music, especially AC/DC). I do admit I'm a whole hog South Park fan if that counts for anything.
Posted by: Michael Heath | January 7, 2010 12:06 PM
Michael,
In my book, at least, it counts for a lot. It makes not being a Beavis and Butthead fan just a quirk, and not a defining characteristic. ;)
Posted by: James Hanley | January 7, 2010 2:13 PM
I cannot come up with a single reason to believe that the US government did not deliberately sabotage this case.
Posted by: Samantha Joy | January 7, 2010 4:56 PM
Trials are for the loser. We won. Ergo, we're above the law.
I got that from Yoo's colouring book. He filled it in in red, mostly. And there are no lines.
Posted by: Modusoperandi | January 7, 2010 6:11 PM
Why not "extraordinary rendition" them to a place that will prosecute them? Isn't that what's supposed to happen with the Bush policies? Maybe Iraq can pay somebody to kidnap them off the street and bring them to Iran for trial? Good for the goose and all that.
Posted by: Badger3k | January 7, 2010 7:01 PM
@ 4 - I'm pretty sure the law against shooting unarmed civilians in the street isn't a new law and therefore wouldn't be retroactive.
The question is under what legal framework is it possible to seek justice for those civilians. The CPA made a classic mistake of creating an unequal legal framework where some civilians had immunity where other civilians who committed the same crime wouldn't.
Posted by: SteveWW | January 7, 2010 11:56 PM
Why not send them to some Eastern European country for torture and punishment? It seems to be a popular tactic in the US for other criminals.
Posted by: Tom | January 8, 2010 1:32 PM