The Sad and Predictable Ending to the Nisour Square Tragedy Posted by Michael Cohen

The last hours of 2009 brought with it the quite unsurprising dismissal of charges against five Blackwater guards charged in the killing of 14 Iraqi civilians in Baghdad's Nisour Square in September 2007. I say unsurprising because for those of us who followed this case closely it has always had the odor of politics around it - and the chances of a successful prosecution seemed far-fetched at best.

First, there was the obvious and seemingly insurmountable jurisdictional challenges. The five BW guards were immune from Iraqi law and so instead were charged under the Military Extraterritorial Jurisdiction Act (MEJA). Yet it was far from clear that the law could even be applied to the defendants. Indeed, I had long assumed that the case would be thrown out because of jurisdictional issues and the lack of a clear and identifiable legal framework with which to charge the defendants. 

Putting aside the legal questions, the challenge in assembling evidence and witnesses as well as convincing a jury to pass judgment on a firing decision made by individuals who believed they were under attack was always going to be a hard bar to surpass. As my good friend Tara Lee (with whom I've appeared on more PSC-related panels than seemingly imaginable) always reminds me, juries generally don't like to second guess the split-second decisions made in the heat of war. 

Finally, there was the issue of statements given by the five men to the State Department's Bureau of Diplomatic Security in the days after the shooting. The contractors were required to give the statements, but with the understanding that they could not be used in any prosecution against the men. There was always a question as to how DoJ was going to get around that issue, but as it now seems clear, they didn't even bother to try. 

As Judge Ricardo Urbina's ruling makes clear DoJ prosecutors actively used statements by the defendants, given after immunity was provided, as a tool for building a case against them:

In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. 

In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team . . . that this course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and . . . these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury. The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility.

But the level of misconduct gets worse. DoJ lawyers also withheld exculpatory evidence from the grand jury suggesting that the BW guards believed that they were under attack when they opened fire and prosecutors distorted versions of the statements offered to jurors. 

Quite simply, the level of misconduct detailed in this ruling is shocking. The constitutional rights of the defendants were trampled over in what appeared to be an overzealous and deeply improper prosecution. I realize that no many progressives are going to shed tears for the ill-treatment of five Blackwater guards; but they should be outraged nonetheless - prosecutorial misconduct is prosecutorial misconduct, no matter who is the defendant.

Indeed, it is hard not to come to the conclusion that this entire case was politically charged from the outset; an effort on behalf of DoJ (which for years had simply failed to pursue charges of private security contractor misconduct) to show solidarity with an Iraqi government outraged by the incident and demonstrate some "toughness" against much maligned contractors like Blackwater.

Of course, the real victims here are not the now exonerated Blackwater guards - they are the 14 Iraqis killed and more than three dozen wounded in Nisour Square. For them there will be no justice. I don't know what happened that day in Nisour Square. The military concluded that the BW guards acted with malice; the guards claimed they were under attack by insurgents and responded accordingly. I have no idea where the truth lies, but because of actions taken by the USG we will never know the real answers. 

And to be sure the blame is not solely applied to DoJ lawyers. What about the State Department, which allowed BW to operate as private security guards in Iraq with no clear legal framework, conducted poor oversight of them and ignored repeated warnings of aggressive behavior by Blackwater employees and actual incidents of misconduct? What about DoD and its refusal to protect US diplomats, forcing State to rely on private contractors for security?  What about DoJ for failing to prosecute a single private contractor under existing legal frameworks contributing to a culture of impunity for contractors in Iraq? What about the CPA for granting full immunity from Iraqi law to private contractors? What about Congress for failing to provide proper oversight of the USG's burgeoning use of contractors in Iraq or even updating legal frameworks to cover the actions of these private actors (to this day, Congress has still not amended MEJA to ensure that contractors working for State Department are covered by it)? 

The list goes on; and it's indicative of the complete failure of the US military and State Department to fully contemplate - before going to war - the challenge of placing hundreds of thousands private contractors in the midst of an active war zone. After the Balkans, in which the ratio of contractors to soldiers was 1:1, the proliferation of private contractors in Iraq should have been a surprise to no one - and yet across the board, the USG was simply unprepared. The fact that DoD is now showing significant improvement in managing and overseeing contractors is a positive sign, but it hardly washes away the sins of the past 6 1/2 years.

In the end, the Nisour Square incident - and the dismissal of charges against BW guards - is a sad and tragic coda to the war in Iraq. Like the larger US conflict there, the use of contractors of Iraq is an embarrassing tale of mismanagement, incompetence, malfeasance and an abdication of responsibility across wide swathes of the US government.

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