By David Johnston The New York Times
Tuesday 30 October 2007
Washington - State Department investigators offered Blackwater USA security guards immunity during an inquiry into last month's deadly shooting of 17 Iraqis in Baghdad - a potentially serious investigative misstep that could complicate efforts to prosecute the company's employees involved in the episode, government officials said Monday.
The State Department investigators from the agency's investigative arm, the Bureau of Diplomatic Security, offered the immunity grants even though they did not have the authority to do so, the officials said. Prosecutors at the Justice Department, who do have such authority, had no advance knowledge of the arrangement, they added.
Most of the guards who took part in the Sept. 16 shooting were offered what officials described as limited-use immunity, which means that they were promised that they would not be prosecuted for anything they said in their interviews with the authorities as long as their statements were true. The immunity offers were first reported Monday by The Associated Press.
The officials who spoke of the immunity deals have been briefed on the matter, but agreed to talk about the arrangement only on the condition of anonymity because they had not been authorized to discuss a continuing criminal investigation.
The precise legal status of the immunity offer is unclear. Those who have been offered immunity would seem likely to assert that their statements are legally protected, even as some government officials say that immunity was never officially sanctioned by the Justice Department.
Spokesmen for the State and Justice Departments would not comment on the matter. A State Department official said, "If there's any truth to this story, then the decision was made without consultation with senior officials in Washington."
A spokeswoman for Blackwater, Anne E. Tyrrell, said, "It would be inappropriate for me to comment on the investigation."
The immunity deals were an unwelcome surprise at the Justice Department, which was already grappling with the fundamental legal question of whether any prosecutions could take place involving American civilians in Iraq.
Blackwater employees and other civilian contractors cannot be tried in military courts, and it is unclear what American criminal laws might cover criminal acts committed in a war zone. Americans are immune from Iraqi law under a directive signed by the United States occupation authority in 2003 that has not been repealed by the Iraqi Parliament.
A State Department review panel sent to investigate the shootings concluded that there was no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to address the problem.
The House overwhelmingly passed a bill this month that would make such contractors liable under a law known as the Military Extraterritorial Jurisdiction Act. The Senate is considering a similar measure.
Some legal analysts have suggested that the Blackwater case could be prosecuted through the act, which allows the extension of federal law to civilians supporting military operations.
But trying a criminal case in federal court requires guarantees that no one has tampered with the evidence. Because a defendant has the right to cross-examine witnesses, foreign witnesses would have to be transported to the United States.
Several legal experts said evidence gathered by Iraqi investigators and turned over to the Americans, even within days, would probably be suspect.
Another law that may be applicable covers contractors in areas that could be defined as American territory, like a military base or the Green Zone. But the Blackwater security contractors in the Sept. 16 shootings were in neither place.
The government has transferred the investigation from the diplomatic service to the Federal Bureau of Investigation, which has begun reinterviewing Blackwater employees without any grant of immunity in an effort to assemble independent evidence of possible wrongdoing.
Richard J. Griffin, the chief of the Bureau of Diplomatic Security, resigned last week, in a departure that appeared to be related to problems with his supervision of Blackwater contractors.
In addition, the Justice Department reassigned the investigation from prosecutors in the criminal division who had read the statements the State Department had taken under the offer of immunity to prosecutors in the national security division who had no knowledge of the statements.
Such a step is usually taken to preserve the government's ability to argue later in court that any case it has brought was made independently and did not use information gathered under a promise that it would not be used in a criminal trial.
The episode began as a convoy carrying American diplomats and staffed by Blackwater guards approached Nisour Square in Baghdad at midday on a Sunday. A second Blackwater convoy, positioned on the crowded square in advance to control traffic, opened fire, killing 17 people and wounding 24.
Blackwater's original statement on the shooting said the company's guards had "acted lawfully and appropriately in response to a hostile attack," and initial assertions by the State Department stated that the convoy had come under small-arms fire.
But subsequent accounts from witnesses and Iraqi investigators indicated that the convoy had not been attacked and that the Blackwater guards fired indiscriminately around the square. Americans soldiers investigating the scene afterward also found no evidence of an attack.
F.B.I. agents have been at the Blackwater compound in the Green Zone interviewing guards involved in the shooting.
Immunity is intended to protect the Fifth Amendment right against self-incrimination while still giving investigators the ability to gather evidence. Usually, people suspected of crimes are not given immunity and such grants are not made until after the probable defendants are identified. Even then, prosecutors often face serious obstacles in bringing a prosecution in cases in which defendants have been immunized