The Department of Justice is urging a federal appeals court to reinstate the indictment against five former Blackwater security guards, arguing that the prosecution's misuse of protected statements was harmless and that there remains overwhelming physical evidence to continue the case.
DOJ this week filed its opening brief in the U.S. Court of Appeals for the D.C. Circuit, where the government is challenging the dismissal of the indictment. The guards were indicted in December 2008 on charges that include voluntary manslaughter for killing Iraqi civilians in a shootout.
Last December, U.S. District Judge Ricardo Urbina dismissed the indictment on the ground that the prosecution had misused protected statements the guards made to State Department officials following the shooting. When DOJ announced its appeal in January, the defense lawyers in the case expressed dismay.
The government’s appeal explores two main issues: whether grand jury testimony of key eyewitness was tainted by press reports of immunized statements and whether the government made impermissible use of the defendants’ post-shooting statements.
Following several weeks of testimony in October, Urbina found the government knowingly ignored the recommendation of a Justice Department attorney, Raymond Hulser, who advised the prosecution team to avoid using certain statements that the guards made following the Nisur Square shooting in September 2007. Urbina also concluded that grand jury testimony had been tainted by the witnesses’ exposure to compelled statements that were carried in news reports.
A Justice Department appellate lawyer, Demetra Lambros, said in court papers filed June 16 in the D.C. Circuit that the government made mistakes in “navigating the waters” in the effort to prosecute the guards.
The prosecutors believed they were entitled to know what the guards said before they gave their sworn Garrity statements, Lambros said. The prosecution team was “unaware the taint attorney had recommended a different course,” according to Lambros.
“This, in the government’s view, is a case about a group of private security guards who recklessly and unjustifiably opened fire in a crowded Baghdad square, leaving 14 innocent Iraqi civilians dead and another 20 wounded,” Lambros said in court papers. “It is also a case about the difficulty of bringing them to justice.”
Hulser was assigned to be the “taint attorney” to review information—including media reports and accounts of the shooting by government officials—in order to screen out compelled statements for the “clean team” of investigators and prosecutors. Assistant U.S. Attorney Ken Kohl in Washington was named the lead prosecutor.
Hulser, a supervisor in the DOJ Public Integrity Section, recognized early in the investigation that there was a potential problem for the prosecutors. He noted in an e-mail to Kohl that it was standard practice for government officials to get an immediate, compelled debriefing after any shooting incident.
“Given the routine practice of getting compelled statements from everyone regarding each shooting, I believe there is a substantial risk that a judge will find that the entire process involved compulsion and all of the shooters’ statements following these incidents were compelled,” Hulser wrote to Kohl in April 2008.
E-mail traffic between Hulser and Kohl, which was unsealed this week, reveals tension between the two about the admissibility of the guards’ statements. In one exchange, Kohl noted he was in possession of notes of interviews regarding the shooting. Hulser said he did not approve any of the prosecutors having those notes.
“Unfortunately—and in what the government acknowledges is a serious breakdown in its taint procedures—the prosecutors were unaware that their view of the September 16 statements was not shared by Hulser,” Lambros wrote in court papers. Lambros called it a “disconnect” between Hulser and the trial team.
At the hearings before Urbina last October, the guards testified that they were under the impression that if they did not provide a statement about the shooting, they would be fired.
“And it was your understanding you were supposed to respond to their questions?” Steptoe & Johnson partner Mark Hulkower asked a guard, Paul Slough, according to a transcript.
“Yes, sir,” Slough responded.
“Did you believe that you had a choice as to whether you responded?” Hulkower continued.
Slough said he was told that if he was “honest and truthful, that nothing would be used against me, and that they were there to gather information not to be used in a criminal setting.”
Another guard, Evan Liberty, testified that it was understood he would be fired if he didn’t talk to investigative agents.
“But the agents didn’t tell you that, did they?” asked Michael Dittoe of DOJ’s National Security Division.
“They didn’t have to, sir,” Liberty responded. “I understood it.”