Blackwater Case Plagued By Missteps

Many Iraqis were incensed in when a federal judge threw out charges against five security contractors accused of killing civilians in a Baghdad Square in 2007. Washington Post reporter Del Quentin Wilber explains how the sensitive case against the Blackwater Worldwide guards collapsed.

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NEAL CONAN, host:

An Iraqi interior ministry official announced yesterday, that anyone who worked for the private security contractor once known as Blackwater Worldwide must leave that country within days. The ruling underscores anger that stems from an incident in 2007 when Blackwater guards working for the state department opened fire in a busy square in Baghdad and killed 14 people. The wound opened again when a federal judge threw out all charges against the Blackwater guards at the end of last year.

Now, as the government prepares an appeal, Del Quentin Wilber of The Washington Post learn more about why this sensitive and important case collapsed. If you have questions about the Blackwater case and why it blew up, 800-989-8255. Del Quentin Wilber's piece appears in today's edition of The Washington Post. He joins us here in Studio 3A. Nice to have you with us today.

Mr. DEL QUENTIN WILBER (Columnist, The Washington Post): Good afternoon, Neal.

CONAN: And let's go back to the beginning. The Blackwater guards said they opened fire in response to an ambush. The Iraqi government said the shooting was unprovoked. Why werent they charged in Iraq?

Mr. WILBER: They werent charged in Iraq because at the time, the Coalition Provisional Authority and all that stuff had been going on. Iraq was just begetting its, you know, authority over the country.

CONAN: Sovereign power.

Mr. WILBER: And the State Department and the U.S. government had some immunity for these guys. They were not going to be charged in Iraq. That left charging authority to the United States government under a really kind of complicated military extraterritorial jurisdiction act that most legal scholars thought the case might fall apart from.

CONAN: But that turned out (unintelligible).

Mr. WILBER: They never even got to that.

CONAN: Never even got to that question.

Mr. WILBER: No.

CONAN: Because, well, then, some investigation was done on the spot and these guards were interviewed in Iraq. They made oral statements and they made some written statements, but apparently under the belief that those would not be used against them.

Mr. WILBER: Right. They - after every shooting, and this is what the judge found - Ricardo Urbina, a very methodical, respected judge in the district courthouse where they brought this prosecution - that the oral statements and the written statements, you know, when you get to Iraq, they handed you a memo that said, we're going to talk to you after you are involved in a shooting incident. We're going to interview you, that you can't be fired for talking to us, you could be fired if you don't, and we're not going to use these things in court.

And so, when the Justice Department gets this case 10 days after the shooting -now remember, it's erupted, it's boiling relations between the two countries. Iraq really wants these guys prosecuted. The State Department doesnt want to mess with Blackwater because they are, like, really great at protecting guys over there. Not a single loss of a life of someone they're protecting. And the Justice Department's in the middle.

State Department investigators interviewed the Blackwater guards involved. Nineteen members of this convoy, Raven 23, from September 16, 2007, the shooting. They're interviewing them. They write up their report for the interviews and the written statements they gave later. They go meet with the Justice Department prosecutors, hey, here are the statements, here's the stuff we got, it's great. A couple days later, a State Department lawyer calls, we might be in trouble, guys.

CONAN: Right.

Mr. WILBER: The statements may have been given under the grant of immunity. Uh-oh, Justice Department gets rid of all those guys from the case. We can't have these guys on...

CONAN: Because they've seen these...

Mr. WILBER: Yeah.

CONAN: ...they've seen these statements. They are thereby tainted by that. So you have to throw out the whole first group of investigators and get a whole new bunch in, including a new prosecutor.

Mr. WILBER: Yup, like a new prosecutor, a guy very well respected. You know, he handled the anthrax investigation. He pushed back to make sure, you know -Steven Hatfill, if you remember him from anthrax, say, doesnt get charged. Won a big narco-terrorism case - complicated visited Bogota under threats of death, you know, knows what he's doing. He's the guy to do it.

CONAN: And in addition to him, they assigned somebody else who's going to say, right, I'm going to look at possible conflicts here and make sure everything is, you know, as, you know, just as great as (unintelligible).

Mr. WILBER: We know that this could get screwed up because of taint issues with these immunized statements, you know? It's a long remember Ali North?

CONAN: Sure.

Mr. WILBER: And all that? All fell apart in court. It all stems from this. So, okay, we're going to get this guy Ray Hulser, genius on these issues, expert, perfect. They have him review the stuff before it comes to the prosecution team. Oh, maybe it's tainted, we can give you well redact these documents, give you these other documents we dont think are tainted to protect the prosecutors.

CONAN: So anything they use will hold up in court?

Mr. WILBER: Yeah. Exactly. And to protect them - and to offer legal advice, like avoid this, you can do that.

CONAN: Right. Then they get - it turns out that the prosecutor in this case, decides, you know, those oral statements, they're okay. I think I can use those. And then he uses the oral statements to bootstrap, I think is the term used to buy a lot of lawyers, to say, once I've got the oral statements, I can subpoena the written statements.

Mr. WILBER: Yeah. Through search warrants and use them to build this case to figure out who fired where. This is according to what the judge found in these legal papers, thousands of pages that I lost a holiday weekend reading. And, you know, it's a very complicated issue. But meanwhile, Hulser is sending emails to, you know, this guy Kohl, the prosecutor...

CONAN: Prosecutor.

Mr. WILBER: ...Kenneth Kohl, his supervisor saying, I think we should avoid these oral statements. I think a judge may toss them out. We should avoid this. In one response, Kohl writes back that guy and says: Mike, I got it. Later, Kohl says I never read that email and I never got any other Hulser advice until it was too late. I had already read the oral statements. And the Justice Department then argued in court, we don't think these oral statements should be afforded the same protection as the written ones. When they signed the written statement, it had like, you know, a big glaring warning saying, you know, you're doing this on - it won't be used against you...

CONAN: In any court of law. Yeah.

Mr. WILBER: And they ordered the oral statements were different. Judge found otherwise.

CONAN: And there was also - the judge had questions about - indictments were brought about against these five guys. One pleaded guilty.

Mr. WILBER: Yes.

CONAN: Indictments were brought against them and that of course involves a grand jury investigation and the judge had questions about the way the prosecutor handled the grand jury as well.

Mr. WILBER: Yes. You know, so they're reviewing - they reviewed these statements, they build their case, they go to a grand jury. There are witnesses, lots of witnesses testified: guards, Iraqi witnesses.

CONAN: They bring people over from Baghdad.

Mr. WILBER: Yeah. Fly them over, you know, interview them in the grand jury. And then they come to realize, wait a minute. You know, the other Blackwater guards - there were three - three really good Blackwater guards, critical witnesses who are going to testify against their colleagues in the shooting, they read the written statements from these guys, the protected ones. And they had read news accounts of the written statements.

CONAN: So they are tainted.

Mr. WILBER: They're tainted. And, you know, you would think, well, couldn't you like, divorce your mind from like, what you read later and what you knew then? And so, the prosecutor goes all right, we're going to be very careful. We're going to start a new grand jury and we're going to read transcripts of the first grand jury to the second grand jury and redact all the stuff that might be tainted. Turns out, the judge found they didn't do that particularly well. They let stuff that was tainted into it. They didn't provide information to the second grand jury that was helpful to the guards, like for example, a couple of these guys, these witnesses said, I don't really think he committed a crime. Well, they redacted that part.

CONAN: Mm-hmm.

Mr. WILBER: Or, I'm not sure he fired. I think he did. And they said - they summarized that, you know, these two guards said, X fired.

CONAN: Right. I think he fired.

Mr. WILBER: Yeah. Yes. No, not I think. He fired.

CONAN: He fired.

Mr. WILBER: Not, I'm not sure, I'm not whatever. And so, they got in trouble for that too.

CONAN: And the prosecutor was also found to have made statements in the grand jury room saying that these guys had made written statements.

Mr. WILBER: Yes. And the judge is like, what's the point of that? The prosecutor is like, well, I was trying to see if they - I want to make sure the grand jury is not tainted. The judge didn't buy it. He said he was trying to quote, "color" the grand jury's thinking. It's like, you know, Neal, he made some really bad statements.

CONAN: I can't read them to you...

Mr. WILBER: No.

CONAN: ...but he made some really bad statements.

Mr. WILBER: Yes. Yeah.

CONAN: So, they get the indictment, and then they proceed to trial and then, these are all in pretrial evidentiary hearings where this matter comes up and the lawyers for the Blackwater guards, represented still by Blackwater - and it's now called Xe - but that company's lawyers say, wait a minute. This evidence is all tainted.

Mr. WILBER: The guard - the lawyers for the guards are their own lawyers but they're funded by Blackwater/Xe Services.

CONAN: Okay.

Mr. WILBER: It renamed itself after this. That's how big a deal the shooting was, it stained Blackwater. They changed the name. And so, they get to these hearings called Kastigar hearings, which flow(ph) from north at what happened (unintelligible).

CONAN: Mm-hmm. They're calling it the immunity bath and all of that sort of (unintelligible).

Mr. WILBER: Exactly. Exactly. So they have these - but the hearings, he closed the hearings. We fought to get in, we lost. But three weeks for these hearings where he called the prosecutors to testify - Ken Kohl testified, another prosecutor testified. Ray Hulser, the expert, testified. The FBI agents testified. Everyone testifies over these three weeks of very detailed hearings. And the judge then finds, you know, that they screwed up and he has this lengthy opinion that he released on New Year's Eve last year.

CONAN: And that said, basically, the prosecutor has been so - made so many egregious errors here that his case is thrown out and you cannot bring charges against these people again.

Mr. WILBER: There was a constitutional violation against the guards because, you know, you have the right not to - you know, the Fifth Amendment right to not incriminate yourself. If you're forced to - like, you're going to lose your job and then you testify, you tell them, yeah, I did this because I was worried about losing my job, the courts have found, hey, you can't use that stuff. It's not fair.

CONAN: And so, a lot of this at the time is still buried in documents, in court documents that are sealed?

Mr. WILBER: Yes. And all that stuff, the back and forth is, you know, he issues this lengthy 90-page opinion, you know, and he wrestles - you can tell the judge is wrestling with this Kohl guy, which I found interesting in the story today I focused on. If this guy is so well-respected and so good and so, you know, like this, how does this case end up like this, especially when they knew the issues they were approaching, you know, when they knew that was happening?

And so, you know - they have these arguments, 90-page opinion comes out and then we get, you know, maybe a thousand pages of the memos back and forth after and before the hearings, laying out their case, details of the case, and you kind of got a better sense of what the prosecutors were thinking, what the defense lawyers and what the judge was thinking.

CONAN: But somebody in Baghdad, still worried about these 14 people who were killed in this incident, might say, this looks like a set up deal. The United States government said they would prosecute these people and oh, the case gets thrown out on a technicality.

Mr. WILBER: Oh, I don't think anyone should think that these prosecutors, you know, wanted this case to get thrown out. I mean, it's a huge blemish on their career. You read this guy's - this judge - the judge is not in collusion with the government. You know, from all intent, you know, the government brought the case. And, you know, no prosecutor wants to have a judge say he's lacking in credibility.

CONAN: Mm-hmm.

Mr. WILBER: I didn't believe a thing he was saying. You know, it makes no sense to me how this seasoned and experienced guy could do all this stuff, it's implausible. No one wants that. So, I think they have a right to be frustrated that the case ended up this way. I think there are many questions that can be asked about why, you know, when you knew all these were the big issues, why weren't they getting on the phone with their experts and saying, so, you just brought on the - you were just brought on the team as my expert on this issue, can I use the oral statements or shouldn't I?

CONAN: Mm-hmm.

Mr. WILBER: Not, I didn't read the emails. I mean, it's - this is a big case. And I think those are the questions people have and what the judge had. And I think...

CONAN: Not that it was a set-up.

Mr. WILBER: Right. I think the judge came through going, this was so high profile, you knew all the stuff. There's this litany of warnings to you guys, how do you do this?

CONAN: The government is appealing that decision.

Mr. WILBER: Yeah.

CONAN: You write in your column today, in your piece today that, in fact, their prospects were that the appeal appeared very dim.

Mr. WILBER: I had interviewed lots of legal experts. I didn't quote them in the story, maybe four or five of them who specialize in this kind of law. And they, to a one, they didn't think it was going to have much of a chance to win. But that - you know, you can appeal for lots of reasons. Maybe they, you know

CONAN: Who knows? Could be win on a technicality.

Mr. WILBER: You never know.

CONAN: Del Quentin Wilber, thanks very much for your time today.

Mr. WILBER: Sure.

CONAN: Del Quentin Wilber, federal courts reporter for the Washington Post, who joined us here in Studio 3A.

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