A Dismissal Is Not An Acquittal

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For an Obama Administration intent on convincing the world that the US will no longer tolerate American atrocities against Iraqi civilians, this has not been a good month. On New Year’s Eve, a US Federal Court threw out the landmark criminal case against Blackwater contractors implicated in the Nisoor Square attacks on civilians in Baghdad.

But this week’s subsequent decision in the Blackwater case has provided a faint glimmer of hope that the prosecution against the six private military contractors who had been charged with voluntary manslaughter and weapons violations will be renewed. Despite its scathing findings of prosecutorial impropriety in the case, the court has held that the prosecution will not be barred from seeking a fresh set of indictments.

The September 2007 shootings left at least 14 Iraqi civilians dead and another 20 seriously wounded. The accused have argued that they acted in response to a legitimate security threat but onlookers maintain the attack was entirely unprovoked.

The extraordinary callousness of the violence was the final straw for the contractor-weary Iraqi Government, which promptly announced that Blackwater was to be expelled from the country and the offenders brought to justice in Iraqi courts. It soon emerged, however, that any amount of steely decisiveness on the part of the Iraqi government could not match the jurisdictional loopholes created by the US-led Coalition Provisional Authority.

On the eve of its handover of power to an independent Iraqi Government, the coalition authority enacted CPA Order 17 which, among other things, declared that all foreign contractors operating in Iraq would be immune from prosecution under Iraqi law. The blanket immunity left many Iraqis appalled and only served to reinforce the view that contractors saw themselves as above the law. Removal of contractor immunity was a key plank of Iraq’s negotiation of a new Status of Forces Agreement in 2008.

The Bush administration had sought to justify the blanket immunity on a number of grounds, including that foreign contractors could not be guaranteed a fair trial in Iraqi courts. While it was certainly refreshing to observe the Bush Administration’s rhetorical invocation of the rights of the accused (rights which had largely been abandoned in the case of Guantánamo detainees), the justification was widely viewed as a condescending smokescreen for an American commitment to impunity for allied atrocities in Iraq.

As it turns out, it has been in America — and not Iraq — where authorities have struggled to accord the accused a fair trial.

In a damning Federal Court ruling on 31 December 2009, the indictment against the accused was dismissed, with the court finding that serious procedural and evidentiary irregularities in the prosecution case had violated the defendants’ constitutional rights.

The Fifth Amendment of the US Constitution protects against self-incrimination, mandating that defendants are not to be compelled to give evidence against themselves in serious criminal cases. In cases that have come before US courts, including the Garrity and Kastigar cases, it has been established that this means that where government employees are compelled to make statements under the threat of job loss, those statements (and any evidence flowing from the statements) cannot be used in any subsequent criminal case.

In the immediate aftermath of the Nisoor Square shootings, the US State Department and other government investigators interviewed and took statements from each member of the Blackwater team involved in the incident. Although the government argued that the contractors were not compelled to give the statements, the written statements contained a pro forma clause which required the contractors to acknowledge that failure to provide a statement could result in "disciplinary action, including dismissal", and which gave the express assurance that the statements, and any evidence flowing from the statements, would not be used in any subsequent criminal proceedings.

The prosecution was unable to satisfy the court that it had not used this compelled and immunised information in the course of obtaining the indictments. Despite being attuned to the legal issues surrounding the use of the protected information, the prosecution built its case on evidence that was directly and indirectly tainted by the information contained in the statements.

The extent to which evidence was tainted was compounded by the fact that some of the statements were immediately leaked to the media in Baghdad as government sources sought to justify the shootings as a legitimate response to a military attack.

The court found that members of the prosecution trial team "purposefully flouted" the advice of senior government lawyers in relation to tainted evidence and, "in so doing, knowingly endangered the viability of the prosecution". Whether this was a matter of gross prosecutorial incompetence or a concerted effort to undermine the trial, we will never know. What we can be sure of, however, is that the decision reveals that US authorities in Iraq never had the proper processes in place to ensure accountability for atrocities committed by their contractors.

The critical failure of investigators and prosecutors to build a constitutionally sound case adds force to the argument that the Bush administration’s insistence that contractors should be granted immunity from prosecution in Iraq had little to do with concerns about the rights of defendants and much to do with creating spaces for American impunity.

Despite the accused’s attorney insisting that the decision reveals that "the United States has shown it will pursue an innocent man", US Vice-President Joe Biden has stressed that "a dismissal is not acquittal". All defendants have the right to be presumed innocent until proven guilty, but the court’s decision to throw out the case on procedural and constitutional grounds is not the same as making a positive finding that the accused is not guilty of committing the substantive offence of voluntary manslaughter.

This distinction is unlikely to give comfort to Iraqis affected by the shootings. One of the great strengths of a criminal trial is its capacity to set down a lasting and definitive record of events. In the face of Blackwater’s insistence that its contractors are responsible for little more than bringing safety and security to war-ravaged nations — not to mention a corporate re-branding effort which has even seen the Blackwater name replaced with the considerably less-known moniker of "Xe Worldwide" — half of the battle in ensuring accountability for atrocities lies in having a legitimate, legal source state with authority that the unprovoked attack on civilians did indeed happen.

With Iraqi authorities expressing outrage at the decision and announcing that Iraq will launch its own civil action against the company, the Obama Administration is well aware of the political importance of the case. On Saturday, Joe Biden emerged from a meeting with Iraqi President Jalal Talabani to announce that the US Department of Justice would appeal the decision, although most commentators are sceptical about the prospects of it being successful.

And while the court this week ruled that prosecutors were not barred from bringing fresh indictments based entirely on untainted evidence, it is likely that there is very little of that sort of evidence around. In its 31 December ruling, the court concluded that "the defendants’ compelled statements pervaded nearly every aspect of the government’s investigation and prosecution". The tainted evidence stretched from the statements of key Blackwater witnesses for the prosecution (including one contractor who had been so appalled by his colleagues’ cover-up as to write a detailed journal to set the record straight), to civilian witnesses to the attack, and all the way to physical evidence collected from the scene. It will be a miracle if the prosecution manages to build a new case on entirely untainted evidence.

For the time being, the Obama Administration will have to live with the uncomfortable fact that, despite America’s unprecedentedly heavy reliance on private contractors in its military operations abroad, not a single contractor has ever been successfully prosecuted for atrocities committed on Iraq’s battered soil.

New Matilda

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.

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