Four former security guards charged with fatally shooting more than a dozen Iraqi civilians in 2007 intend to challenge the new indictment prosecutors filed earlier this month.
The Blackwater guards, charged in Washington federal district court, will argue prosecutors unlawfully built the new case on protected statements the guards made after the shooting, defense lawyers said at a hearing today. The guards were first charged in 2008, but that case fell apart after a judge found the government improperly relied on the guards' statements.
Assistant U.S. Attorney John Crabb Jr. told the court today he expected the indictment would survive. U.S. District Senior Judge Royce Lamberth scheduled a hearing on the challenge, known as a Kastigar hearing, for Dec. 2. The proceedings will likely last about two weeks, according to the government.
The government initially charged five Blackwater guards in the shooting in Nisour Square in Baghdad that left 14 Iraqi civilians dead. U.S. District Judge Ricardo Urbina dismissed the case in 2009, citing the use of the guards' protected statements, but the U.S. Court of Appeals for the D.C. Circuit revived it in 2011 and gave the government another chance to bring charges. Lamberth took over the case after Urbina retired.
On Sept. 30, the government notified the court it was dropping its case against one of the defendants, Donald Ball, as it prepared to bring a new indictment. The four remaining defendants are Paul Slough, Nicholas Slatten, Evan Liberty and Dustin Heard.
In deciding whether to let the indictment stand, Lamberth will consider whether the grand jury made its findings based on information tainted by the guards' protected statements. The government will call certain witnesses it presented to the grand jury, although not Iraqi witnesses who were interviewed after the shootings.
Slough's lawyer, Brian Heberlig of Steptoe & Johnson LLP, said the defense would want to include the Iraqi witnesses in the Kastigar proceedings. Lamberth said he would decide after the December hearing how to handle those witnesses, given the logistical challenges. The grand jury heard summaries of the interviews, according to the government. Heberlig said the defense would argue those summaries were tainted because the interviewers knew about the guards' protected statements.
Heberlig mentioned several other challenges the defense lawyers are considering, including whether the indictment was specific enough and whether the grand jury was given proper instructions.
If the indictment survives, Lamberth scheduled a trial for June 2. Assistant U.S. Attorney Anthony Asuncion said today the government expected to call 60 to 80 witnesses, 40 of whom would require an interpreter. The trial would last at least two months, he said.