Another Blackwater Killer Walks Away

It's four years since the U.S. government began a string of investigations and criminal prosecutions against Blackwater, now Xe, personnel accused of murder and other violent crimes in Iraq and Afghanistan, the cases are beginning to fall apart, because of a legal obstacle of the government's own making.
In the most recent and closely watched case, the American Justice Department on Monday said it would not seek murder charges against Andrew Moonen, a Blackwater armourer accused of killing a guard assigned to the Iraqi vice president on Dec. 24, 2006. Justice officials said that they were abandoning the case after an investigation that began in early 2007 and included trips to Baghdad by federal prosecutors and FBI agents to interview Iraqi witnesses. The US government's decision to drop the Moonen case follows a series of failures by prosecutors aimed at former personnel Xe Services. In September, a Virginia jury was unable to reach a verdict in the murder trial of two former Blackwater guards accused of killing two Afghan civilians. Late last year, charges were dismissed against five former Blackwater guards who had been indicted on manslaughter and related weapons charges in a September 2007 shooting incident in Nisour Square in Baghdad, in which 17 Iraqi civilians were killed. All these cases  have been covered in this blog.
Interviews with lawyers involved in the case, outside legal experts and a review of some records show that US federal prosecutors have failed to overcome a series of legal hurdles including overcoming immunity deals given to defendants by U.S. officials.
The difficulty of these cases also illustrates the tricky legal questions raised by the government's increasing use of private contractors in war zones.
Such problems clearly plagued the Moonen case. In the immediate aftermath of the Christmas Eve shooting, Moonen was interviewed, not by the FBI but by an official with the Regional Security Office of the U.S. Embassy in Baghdad, the State Department unit that supervised Blackwater security guards in Iraq.
Stewart Riley, Moonen's lawyer, said his client gave the embassy officials a statement only after he was issued a so-called Garrity warning - a threat that he might lose his job if he did not talk but that he would be granted immunity from prosecution for anything he said. The legal warning and protection given to Moonen was similar to warnings that embassy officials later gave to the Blackwater guards involved in the Nisour Square case.
The agreements presented an obstacle to U.S. prosecution. In effect, the Blackwater personnel were being given a form of immunity from prosecution by the people they were working for and helping to protect.
Once you immunize statements, it is very hard to prosecute.
Justice Department officials noted that more than 120 companies have been charged contract fraud and related crimes in Iraq, Afghanistan and Kuwait.
One of the problems in the Moonen case was that while Moonen admitted in his statement to the embassy official that he did shoot the Iraqi guard, he asserted that he had done so in 'self-defence'. The guards in the Virginia case also said that they shot in 'self-defence' when they believed they were 'facing an attack'.

American jurisdictional problems also plague the Blackwater cases. Since the guards were working under a contract with the US State Department, they did not fall under the laws that govern contractors working for the Defence Department overseas. Contractors for the Defence Department are subject to criminal prosecution under the Military Extraterritorial Jurisdiction Act, but it has never been clear whether the law can be applied to contractors for the State Department, like Blackwater. Those contractors generally have greater protections, no matter what their actions.

 Thanks to Ray Matthieu, American Law lecturer at Glasgow University, and friend of WITC for advice on this post.