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State Defends Immunity Deal for Blackwater Guards
Since news broke yesterday that the State Department had offered immunity deals to the Blackwater guards involved in the September 16th Nisour Square shooting, which left seventeen Iraqis dead, inquiries from Democrats have mounted, and the State Department has evidently been scrambling to respond.
And it's evident what their response is: at least we didn't offer absolute, blanket immunity to the guards from prosecution. As part of the PR offensive, two "senior State officials" stressed just that point to CNN earlier today. But the AP, which broke the story, never reported any such thing.
The type of immunity offered the guards was "use" immunity, meaning that the guards were offered the ability to talk with the promise that their statements couldn't be used in a criminal prosecution. ABC got a hold of the statements today and confirms this.
So State Department spokesman Sean McCormack tried to look on the bright side in a press briefing:
"The kinds of, quote, 'immunity' that I've seen reported in the press would not preclude a successful criminal prosecution," he insisted."The Department of State cannot immunize an individual from federal criminal prosecution," he added.
There are a couple of problems with that, however.
While State certainly doesn't have the ability to absolutely bar a criminal investigation, they also didn't have the authority to offer the "use" immunity officials offered the guards, as The New York Times, citing "government officials," reported this morning.
And while the Department's choice to offer immunity certainly "cannot immunize an individual from federal prosecution," it makes things a lot harder for FBI agents and Justice Department lawyers who are trying to build an already incredibly difficult case. As the AP put it today:
The immunity deal will not prevent the Blackwater guards from ever being prosecuted. However, it forces prosecutors to prove that they did not use the information gleaned from the bodyguards' statements — or anything related to them — when seeking criminal charges. That means investigators will have to find other credible witnesses or evidence to make their case.
It remains unclear who was responsible for authorizing the immunity deal. A "senior State Department official" whispered to ABC that "If anyone gave such immunity it was done so without consulting senior leadership at State." The AP gave a hint yesterday when it reported that last week's resignation of Assistant Secretary of State Richard Griffin was "directly related to his oversight of Blackwater contractors."
The inquiries, unfortunately for State, have only just begun. Today House oversight committee chair Henry Waxman (D-CA) sent a list of questions to Secretary of State Condoleezza Rice about the immunity deal, calling it "an egregious misjudgment."
Ed.Note: Thanks to all the TPM legal eagle readers who wrote in with their takes on this.
Update: ABC adds a cautionary note to all this, noting the difficulty Blackwater's lawless position offers prosecutors:
Even without immunity, however, it would be extremely difficult to prosecute the Blackwater security guards in U.S. courts.Shortly after the Sept. 16 Blackwater incident, Secretary Rice dispatched a panel of experts to Iraq to examine the use of private security contractors.
The panel's report, drafted by Ambassador Patrick Kennedy, concluded that even if a private security guard committed cold-blooded murder, there may be no legal basis for prosecuting the guard in U.S. courts under current law.
"The panel is unaware of any basis for holding non-Department of Defense contractors accountable under U.S. law," the report concluded.
Comments (33)
Kinnison wrote on October 30, 2007 3:41 PM:Just supposing -- if I myself (with no authority whatsoever) had "granted immunity" to these Blackwater folks, and they spoke freely, mistakenly assuming I had such authority -- would prosecutors be barred from using the information disclosed?
If the State Dept. officials who did this did not actually have that authority, as now asserted, how can that immunity be valid?
v. popvli wrote on October 30, 2007 3:42 PM:more heads will roll at state for this. i think i need more popcorn.
Consternation wrote on October 30, 2007 3:53 PM:"we didn't offer absolute blanket immunity"
We don't "absolutely blanket torture"
Hmmmmmm
TheraP wrote on October 30, 2007 3:58 PM:Like the DoJ muckheap, this is the story that just won't go away.
Name Dropper wrote on October 30, 2007 3:59 PM:Condi has already had an oil tanker named after her.
How about "Condi Popcorn?"
jolly ranchero wrote on October 30, 2007 4:01 PM:Can somebody PLEASE answer Kinnison's sickeningly simple question:
If they're not allowed to offer "immunity", then it's not valid. If it's not valid, then there's no immunity. If there's no immunity, why the fuck are prosecutors so upset?
If the State Department just declares me King, without any validity, that still makes me royalty?
WTF is going on? Lawyers, anyone?
better name wrote on October 30, 2007 4:01 PM:How about "Condi Corn?" Just in time for Halloween!
Blackwater Awareness Week wrote on October 30, 2007 4:03 PM:Blackwater Condi Corn?
jimijazz wrote on October 30, 2007 4:03 PM:The fact that the Justice department was not told about this so called immunity deal make it even more suspicious.(New York Times article)
Popped Rice? wrote on October 30, 2007 4:05 PM:just asking
zAmboni wrote on October 30, 2007 4:07 PM:Could someone please expand on what can and cannot be done with "use immunity". I just read this: https://www.acgov.org/da/pov/documents/immunity.htm
and I'm still confused why they seem to be stuck with the investigation.
The way I read it, it is basically a way to prevent the person being questioned from incriminating himself....i.e. "Yea I robbed the store." They cant prosecute him because of that statement.
What I am confused about is what about this scenario:
Person 1: "We walked into the store and I robbed the store owner at gunpoint"
Person 2: "We walked into the store and he [person 1] robbed the store owner at gunpoint, and we hightailed it out of there.
Both get "use immunity", their testimony cannot be used against themselves, but can the testimony be used against the other person???
Ternitlooze wrote on October 30, 2007 4:17 PM:The Iraq government, you know, the one that Bush says is sovereign, didn't grant any kind of immunity. Let Blackwater face the law there in Iraq.
m wrote on October 30, 2007 4:21 PM:Because the courts may very well rule that the guards had a reasonable basis for relying on the offer of immunity by the State Department, how about an obstruction of justice prosecution of all of those State officials who offered the immunity?
Bass Reeves wrote on October 30, 2007 4:24 PM:What if one of these Blackwater contractors gets drunk one night, comes stumbling out of a bar, thinks Condi is a suicide bomber and shoots her in the head. Do you think they'd find a way to prosecute this hypothetical individual? Or would it be, "Oops, sorry Bush. Guess you gotta find a new work wife..."
mac2151 wrote on October 30, 2007 4:26 PM:Since the rule of law doesn't apply anymore, let's just hang the Blackwater guards in Saddam fashion and be done with the whole matter. Our own little signing statement.
Matt wrote on October 30, 2007 4:26 PM:More heads will roll?
nofltwlt wrote on October 30, 2007 4:31 PM:It's not likely.
If Condi ever comes back to appear before Waxman, she will promise a FULL INVESTIGATION.
Those can take a while, you know.
No defense is possile!
A DC Wonk wrote on October 30, 2007 4:40 PM:Anybody remember Ollie North? I'm surprised nobody's brought that up.
He testified under limited use immunity at Senate hearings. Then a prosecutor got him convicted. Appeals court overturned because they could not be convinced that "prosecutors [[proved]] that they did not use the information gleaned from" the Congressional hearings.
jimijazz wrote on October 30, 2007 4:41 PM:It's time for an independent or special prosecutor. None of these are official investigations that I can see. More like internal inquiries. The immunity deal might have been the State departments way of saying, "We investigated but found nothing."
GySgt213 wrote on October 30, 2007 4:43 PM:If the guards can't be tried in US or Iraqi courts what good does immunity no matter how broad or narrow matter? Does the US have an obligation to turn them over to a international court?
dan wrote on October 30, 2007 4:44 PM:i am a lawyer, but not a criminal lawyer, but this mess makes some sense to me this way:
1. A defendant can not be forced to testify against himself. so jumping on a suspect's stomach to force him to vomit evidence is a "forcing" and the evidence can not be used. (that happened.) The police beating a confession out of a suspect is a forcing and the confession can not be used as evidence.
2. If the police lie to a suspect ("we promise not to prosecute you") to get him to talk, that is a forcing, and the evidence gained can not be used against him. In fact, the suspect needs to be warned that his statements may be used against him; that is the "Miranda warning". This is violated all the time, and evidence is routinely disallowed.
3. If Kinnison offers the immunity, and the government did nothing to make the suspect think that Kinnison had the authority to grant immunity, it would not be a "forcing", would not violate the "right to remain silent" and the evidence would be allowed.
3a. If the police brought Kinnison into the station house for that purpose and let him wear a uniform and a badge, and he offered immunity without authority to do so, it would probably be a forcing. any other conclusion is an invitation police fraud.
4. If someone in the State Department, who appears to have authority, but does not actually have authority to grant immunity, "grants" the immunity, the answer is less certain. The Defense can raise that the evidence should be disallowed. The Prosecution can argue that because the State Department official had no authority, it is like the Kinnison situation.
I do not know what the court would decide, but I know that the prosecutor would rather have a clean case, and the State Department has muddied the situation. Badly. Stupidly. Intentionally?
GySgt213 wrote on October 30, 2007 4:49 PM:Follow up question. How can the US say that the Iraqi nor US law applies to the guards then turn around and use portion of US law to protect the guards?
jimijazz wrote on October 30, 2007 4:58 PM:As for Ollie North, that's correct. But the key problem for the State Department is they don't have the authority to grant immunity. All the facts haven't come out yet but The State Department is involved in this criminality. Bet on it.
TheraP wrote on October 30, 2007 5:07 PM:Each day offers new opportunities to learn more about lawbreaking and the law. bushco, the people who sent everyone to law school!
Nor Cal John wrote on October 30, 2007 5:33 PM:Has it been established if these Blackwater employees were represented by counsel? If so, then they should have known about any authority that the State did or did not have, or they should have postponed any statements until they could find out.
When did the questioning take place? Where? Who was present? Why does yet another investigation have to drag on forever and in secret?
DonnaG wrote on October 30, 2007 5:38 PM:S674, introduced last February 16th, 2007, and ever since held in the Armed Services Committee, is entitled The Transparency and Accountability in Military and Security Contracting Act of 2007.
Well, if the Senate had been on their toes, and dealt with this issue, perhaps this Blackwater snafu would have been already wrapped in decisive legislation. The legislation was sponsored by Obama and cosigned by Durbin, Kerry, and Whitehouse. At least some folks were noticing the need for accountability long before this made the evening news.
Me_again wrote on October 30, 2007 5:44 PM:OH my Gosh, it's little miss "Who knew that jihad means suicide bomber" RICE.
That woman is nothing more that the most horrible, most overpaid, brainless, narcissistic, self absorbed primping waste of time in history.
I'm surpized that anyone, especialy Russia's Putin would give that woman 45 minutes waiting time as opposed to never, not worth anyone's time at all, go home .
Putin should have sent the memo out telling Miss
Me_again wrote on October 30, 2007 6:07 PM:Rice to ge back on her plane to te US and to watch that her plane doesn't go wack into some tall building in NYC on the way back, cause you kmow how stupid she about history. Anything is possible when you're a complete moron.
...but, but, but they were just shooting Mideasterners and you know how they all look alike.
I guess purple finger ink is NOWHERE near as deep as the black blood of oil.
The injustice of Blackwater should ring out accross Iraq. It's isn't about justice for all, nope, it isn't about democracy at all. It's about Bush/Cheney stealing oil, and nothing else.
Me_again wrote on October 30, 2007 6:28 PM:Shortly after the Sept. 16 Blackwater incident, Secretary Rice dispatched a panel of experts to Iraq to examine the use of private security contractors.
The panel's report, drafted by Ambassador Patrick Kennedy, concluded that even if a private security guard committed cold-blooded murder, there may be no legal basis for prosecuting the guard in U.S. courts under current law.
"The panel is unaware of any basis for holding non-Department of Defense contractors accountable under U.S. law," the report concluded.
Yeah, it not like Iraq is a democracy and the people of Iraq DON'T have ANY rights. NO DUE PROCESS AT ALL.
So any talk about "fighting for Freedom" - operation freedom, my ass, since anyone in Iraq can be killed, because Iraqis DON'T have ANY rights AND BUSH NEVER intented for Iraqis to have any rights. Blackwater can shoot any Iraq they want too.
We are killing innocent Iraqis for their oil. They have no rights. Bush can not preach democracy while slaughtering innocent Iraqis.
Maybe there is something to the word "freedom fighter" - perhaps it means that Bush is NOT free to let his un-bid security contractors shoot innocent Iraqis?
Why is Bush still in office? Why is Cheney still there too. EVERYTHING those two say is a complete and total LIE.
Lawman wrote on October 30, 2007 6:44 PM:The real issue here, I think, is the fact that the DOJ and the FBI are saying this will hinder their investigation and any prosecution. That is flat out not true. The State Department has no authority to give ANY kind of immunity to criminal prosecution. (It can extend its own sovereign immunity to its contractors and agents, but that is immunity from CIVIL CLAIMS ONLY, not prosecution.) Obviously, the DOJ and FBI know this. So they are simply using the State Department as an excuse not to investigate or prosecute. Should anyone be surprised?
Anonymous wrote on October 30, 2007 7:49 PM:This is utter non-sense. This "immunity issue" is an embarassment to the United States. There is a solution, and there is no need to worry about whether there has or has not been immunity granted. There are other lawful ways to independently gather new information, not protected, and without any grant of immunity.
1. Sealing Evidence
Nothing is stopping anyone from sealing all evdience glaned through the "improper immunity". The investigation can rely on other evidence which would inevitably be discovered. If it is argued "we'll never find out" -- wrong! Someone knows enough to, without knowing the details, offer immunity.
2. Relaunching Investigation
Start over. Tell all the Blackwater employees that there is a new investigation. And that new evience has been gleaned. They want their lawyers? Then make them demand the very things the President said POWs were "not entitleld." Blackwater is allegedly an unlawful combatant-enterprise. "Good enough for GTMO POWs; good enough for Blackwater." This non-sense about immunity is repugnant. It is another smokescreen.
3. Independently Interrogate Witnesses
Time to play the Blackwater personnel off against each other. Subjeft them to aggressive interrogation. Make them crack. Time to put pressure on them. Subject them to the very conditions they say are "OK" for POWs to be subject. Put pressure on DoJ-JTTF to provide some leadership: Impose the rule of law on Blackwater; and use the same techniques of playing defendants off against eachother. It worked for the OJ Simpson case. Defendants are not loyal when they can make a deal, and others are making deals. Do the same.
theswan wrote on October 30, 2007 8:22 PM:Immunity, deemed legitimate by some nitwit in State? So, just who else has these kind of powers? Can he pardon as well? Bet he ain't the decider. Or maybe their are two.
theswan wrote on October 30, 2007 8:39 PM:Bush claims to have brought democracy to Iraq. It is obviously a lawless type of democracy at that, when there is no accountability at all. With our Justice Department in shambles and rampart corruption running through our American goverment, we must be looking pretty third world ourselves.
Has bush accomplished anything in six years besides ruining the principal of that form of goverment? Wow what failures they are.