A federal appeals court in Washington closed its doors to the public this morning to hear arguments in the government's effort to salvage the manslaughter prosecution of a group of former Blackwater security guards who are charged with killing unarmed civilians in Iraq.
Justice Department appellate lawyer Demeta Lambros said before the U.S. Court of Appeals for the D.C. Circuit today that the case should be heard in a closed session. A lawyer representing the guards, Bruce Bishop, of counsel with Steptoe & Johnson LLP in Washington, agreed with the government’s position.
Lambros said in court, before the hearing was sealed, that an open session would run the risk of disclosing grand jury information and revealing statements from the guards that are protected.
At issue in the case is the extent to which Justice Department prosecutors misused protected statements the guards made after the fatal shooting in Baghdad’s Nisour Square in 2007. The lawyers in the case filed public, redacted briefs in the D.C. Circuit. The court papers reveal discord between the prosecutors assigned to the case and the government’s “taint” attorney, Raymond Hulser, whose job was to screen protected information to make sure it didn’t reach the trial team.
In recent court papers, Justice attorneys had urged the appeals court to keep open the oral argument session and only close it if needed. Lambros said today the position of the government had changed. She didn’t offer an explanation. Assistant Attorney General Lanny Breuer and several of his front-office lawyers were in court this morning for the closed session.
Judges Merrick Garland and Douglas Ginsburg, sitting with Senior Judge Stephen Williams, ordered the court hearing closed.
Judge Ricardo Urbina of Washington’s federal trial court dismissed the government’s prosecution in December 2009 following a series of hearings in which the guards and prosecutors testified. The guards testified they were under the impression they would be fired if they did not provide statements about the shooting.
“And it was your understanding you were supposed to respond to their questions?” Steptoe partner Mark Hulkower asked a guard, Paul Slough, according to a transcript. (Hulkower died this month of cancer. The BLT has more on Hulkower's career here.)
“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 were “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.”
DOJ lawyers in court papers acknowledged the government made mistakes in building the criminal prosecution. The prosecutors believed they were entitled to know what the guards said before they gave their sworn statements, Lambros said in court papers filed last June in the D.C. Circuit. 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. “It is also a case about the difficulty of bringing them to justice.”