It became common practice during the Iraq occupation for the US State Department to work with private security companies like Blackwater to help facilitate giving what amounted to hush money to the families of Iraqis shot dead by private security contractors. In fact, Blackwater's owner, Erik Prince, discussed this practice when he testified in front of Congress in October 2007 and admitted to paying $20,000 to a Blackwater victim's family and $5,000 to another.
"We don't determine that value," Prince told Congress when asked how his company decides how much an Iraqi life is worth. "That's kind of an Iraqi-wide policy. We don't make that one."
Now, Blackwater (which recently renamed itself "Xe") is attempting to use other means to silence its victims. On July 20, the company's high-powered lawyers from Mayer Brown, which boasts that it represents eighty-nine of the Fortune 100 companies and thirty-five of the fifty largest US banks, filed a motion in the US District Court for the Eastern District of Virginia to impose a gag order on Iraqi civilians suing the company. The motion also seeks to silence the lawyers representing the families of Iraqis allegedly killed or injured by Blackwater in a series of violent incidents spanning several years. Four cases in the Washington, DC, area were recently consolidated before Judge T.S. Ellis III of the Eastern District of Virginia for pretrial motions. After preliminary issues are resolved, each case is slated to be tried individually.
The July 20 motion, filed on behalf of Blackwater by Peter H. White of Mayer Brown, requests that Judge Ellis issue "an Order restraining extrajudicial statements relating to these cases by the parties and their counsel to ensure that all parties receive a fair trial and a decision from an impartial jury." The motion specifically seeks to prohibit statements to "the national and local news media."
At the same time, according to a court filing, Blackwater is also asking Judge Ellis to seal evidence that Blackwater claims is confidential or could impact national security. The company argues that if its contracts with the State Department and its "Tactical Standard Operating Procedure" guide are publicly revealed, it "could give valuable information to those who wish to plan more effective attacks against diplomatic personnel stationed in Iraq." Susan Burke, the lead attorney on the civil lawsuits against Blackwater, is not contesting Blackwater's request to seal these specific documents—primarily because they will still remain evidence. But, it does mean that the public will not be able to view them. "Blackwater is basically trying to keep from public view all of the evidence that shows their criminality," says Burke. "They are trying to ensure that we cannot apprise the public of the progress of the lawsuit."
Blackwater's gag-order motion focuses at length on Burke. It cites her labeling of Erik Prince as "a modern-day merchant of death" whose "repeated illegal conduct...must be stopped" and then lists statements by Burke and other lawyers that Blackwater says "are merely the latest in a long line of inflammatory public utterances":
• The death of plaintiff Sa'adoon was "part of a pattern of illegal Xe-Blackwater shootings around the globe known to company management," and part of a "culture of lawlessness and unaccountability" fostered by the company.
• The deaths of plaintiffs in the Hassoon case "reflect the pattern and practice of recklessness in the use of deadly force" by Blackwater "mercenaries" who have "flouted the laws of the United States and their host nation Iraq."
• "Xe-Blackwater's repeated illegal conduct has caused hundreds of unnecessary deaths and thousands of unnecessary injuries. This shooting of [plaintiff] Rabea was not an isolated event. Xe-Blackwater personnel repeatedly and routinely shot for no reason as they prowled the streets of Iraq."
When asked about these specific statements, Burke quickly shot back: "It's all accurate. Those are all completely accurate statements. I stand by what I said."
The Blackwater legal team argues "there is no constitutional right to sway potential jurors through press releases, media interviews, and other extrajudicial statements. 'Legal trials,' the Supreme Court has observed, 'are not like elections, to be won through the use of the meeting-hall, the radio and the newspaper.'"
Burke's partner in the lawsuit, the Center for Constitutional Rights, says it will fight vigorously against Blackwater's attempt to silence their Iraqi clients and attorneys. "Blackwater has consistently spent millions of dollars on PR and public advocacy to try to promote their position and this is something that they have done before," says Bill Quigley, CCR's Legal Director. "This is a blatant attempt to gag the First Amendment rights of the individual Iraqis, their families, their lawyers and the public at large and to bury these factual allegations under a cone of silence. It's not new for Blackwater."
Judge Ellis has scheduled a public hearing on Blackwater's requests for sealed evidence for July 28 at 5:30 pm,, where journalists and the public can express their views to the judge. A hearing on the gag order request is set for August 7. Both will be held in the Eastern District of Virginia court. It is possible that Blackwater could ask the State Department to intervene on the company's behalf to support the sealing of documents, as Blackwater has done in the past with the Department of Defense. "I would encourage the State Department, the Obama administration and anybody else that thinks that Blackwater's misdeeds should be kept out of the public eye to really think very, very carefully before advancing that position publicly," says CCR's Quigley. As for the gag order, among the arguments Burke could make is this: Blackwater itself has a record of leaking information from court cases to the media.
Earlier this year, lawyers from the US Justice Department prosecuting five Blackwater operatives for the September 2007 Nisour Square massacre accused Blackwater's attorneys of improperly passing court discovery material to journalists, specifically Matt Apuzzo of the Associated Press. Apuzzo wrote several stories based on leaked "evidence" that supported Blackwater's line on the case, namely that their men fired in self-defense. (Apuzzo is a reporter with a track record of confronting US government attempts to keep information from the public or "off the record." There is no allegation Apuzzo engaged in improper or unethical conduct in covering Blackwater.) On April 6, 2009, US Attorney Jeffrey A. Taylor wrote:
Since the prosecutors sent a letter to the defendants on December 3, 2008, formally advising them to surrender themselves for arrest, there have been a number of documents and other material associated with this case that have been selectively provided to Mr. Matt Apuzzo, a reporter for the Associated Press wire service. In each instance, the material was provided to Mr. Apuzzo in an apparent attempt to influence improperly the opinions of prospective jurors at a trial in this case.... [Blackwater's] counsel have insisted on the right to disseminate copies of discovery material to third parties as they deem appropriate, and have declined to accept language that would place enforceable limitations on what those third parties can do with the material.
The judge in that case issued an order clarifying the rules, and Blackwater's lawyers, who insisted they had done nothing wrong, reached an agreement with prosecutors not to leak information. This case shows that "it's Blackwater, not us, that has been violating court strictures," says Burke. "For them to actually be bringing this on against us is ridiculous. There's nothing we've done that would merit any kind of order."
Quigley sees Blackwater's attempt to gag the Iraqi victims, their families and the attorneys representing them as an attack on the public's right to information about a government contractor that has been paid more than $1 billion in US taxpayer funds. "Blackwater is concerned about what the lawyers say and what the parties say and what's in the record, but what they're really concerned about is that journalists will cover it," says Quigley. "And so, even though this isn't an attempt directly to gag journalists, it's clearly—the thrust of this thing is to deprive journalists of any information that they can use to write about Blackwater or to hold Blackwater accountable or even to discuss the issues of hired mercenaries by our government."
Another interesting line to emerge in Blackwater's motion is that the company now prefers to be called by one of its recently created alternate identities, "US Training Center." One would be forgiven for thinking this is an Olympic facility, instead of a mercenary operation. The lawyer representing Blackwater, Peter H. White, boasts in his bio that he is "listed in The Best Lawyers in America—White Collar Criminal Defense."
Blackwater/Xe/US Training Center did not respond to a request for comment.