In the last hours of 2009 a US judge dismissed all charges against 5 Blackwater employees held in connection with the Nisoor Square masacre in September 2007. The case centred on claims that guards from the private security firm shot at random at unarmed civilians as their convoy passed a junction, killing 17 and injuring dozens more. The firm, which has changed its operating name to Xe services, argues that their employees we’re responding to an ambush by insurgents.
The case has acted as a focusing point for Iraqi resentment at the presence and immunity of private security contractors within the country. Many civilians claim that their behaviour has long been conducted with a disregard for Iraqi sovereignty, and that this recent victory for Blackwater’s defence highlights the impression that they are able to operate free from prosecution. Five of the six men charged in the case have been released while the fate of a sixth remains unclear due to his guilty plea.
Blackwater is one of the largest and most controversial of the private contractors operating with the Coalition forces in Iraq and Afghanistan. Although it has been formerly banned from Iraq by the national government, expectations that private staff will soon comprise 50% of armed forces capacity in Afghanistan will likely lead to further growth of its operations. The practice of contracting private firms for security and the protection of expatriates was hugely accelerated after 9/11, but has since seen employees embroiled in numerous cases regarding human rights and improper conduct.
During the Abu Ghraib investigations it was found that more than a third of the guards involved in abuse were employees of Blackwater. Following the Nisoor Square masacre, a 2007 House of Representatives report on the conduct of the company found several more issues. This House Oversight and Government Reform Committee found that between 2005 and 2007 there had been 195 reported incidents in which employees had fired weapons. Despite its legal remit to use only defensive force in the protection of State Department officials, it was found that in 80% of the cases Blackwater guards had fired first (often from a moving vehicle). Their reputation for over-zealous force was not assisted by further revelations that 122 people from their 800 strong operating capacity in Iraq had been fired from employment, due mostly to weapons-related incidents and substance abuse. Xe Services claims this figure represents its firm commitment to the highest standards within its workforce.
In the case brought by the Justice Department against the 6 employees, the judge dismissed the case on the grounds of improper practice, claiming that their prosecution was, “contradictory, unbelievable and lacking in credibility”. District Judge Ricardo Urbina pointed to flaws in the collection and presentation of evidence. Sworn testimonies were collected from all 6 of the accused under specific terms from the State Department. These were obtained after threatening the men’s employment if they chose not to co-operate and under the formal understanding that they could not be used in legal proceedings. As government contractors, the guards were obligated to give an immediate report to State Department officials, but since the Constitution prevents the government from requiring a defendant to testify against himself, these statements could not be used in a prosecution.
It was on these grounds that Urbina dismissed the case, citing the fact that the testimonies had been used to obtain warrants, been presented to the jury, and had been leaked to witnesses. He was able to crush the case before trial without any reference to its merits from a criminal perspective. Although the Justice Department has 90-days from the date of dismissal to appeal the decision, they are unlikely to seek this. Due to the fact that the indictments sought by the department were so heavily dependent on information gained from the forced testimonies, it will prove difficult to pursue their case without them.
Iraqis and many human rights organisations have accused the U.S. justice system of deliberately avoiding an opportunity to secure accountability in its operations. Many argue that this ‘surprise’ action by Judge Urbina is reflective of the U.S.’s wish to avoid bringing its actions into public focus.
However the flaws in the Justice Department’s case have led others to question the practice of the prosecution. The errors made in the collection and handling of evidence should have meant that Urbina’s decision on December 31st came as no surpise. These errors, unacceptable under even normal legal practice, become more pronounced after claims that prosecutors ignored advice from senior department lawyers. These officials in the “taint team” warned the prosecution about the serious legal issues in their case, yet to no avail. Attorney Kenneth C. Kohl, who led the prosecution, has over 20 years experience and would have been expected to have foreseen the issues arising from the accuser’s testimonies.
Critiques of the Justice Department case claim that prosecution lawyers knowingly and deliberately sabotaged their own case in order to protect a politically sensitive issue from gaining legal examination. In his final assessment of the case, Judge Urbina himself provides perhaps the most damning indictment from this perspective:
“The only conclusion 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.”