Black People : Judge Dismisses All Charges Against Blackwater Guards in Nisoor Square Massacre

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DEMOCRACY NOW! - A federal judge in Washington, DC has thrown out all
charges against the five Blackwater operatives involved in the 2007 Nisoor
Square massacre that killed seventeen Iraqi civilians. Judge Ricardo Urbina
handed down his ruling late in the afternoon on New Year’s Eve. Urbina
accused the Justice Department of building its case on sworn statements
that the guards had given under a promise of immunity. We speak with
attorney Scott Horton.


AMY GOODMAN: A federal judge in Washington has dismissed all
charges against the five Blackwater operatives accused of gunning down
fourteen innocent Iraqis in Baghdad’s Nisoor Square in September of 2007.

Judge Ricardo Urbina’s dismissal of the charges on New Year’s Eve was met
with outrage in Iraq. The Iraqi prime minister’s spokesman Ali Al-Dabbagh
vowed to pursue the case and called Judge Urbina’s dismissal, quote, “unfair
and unacceptable.”

ALI AL-DABBAGH: We are sorry that the federal judge had
that verdict. We keep them and we hold them criminals, as per our
investigation here in Baghdad. The Blackwater personnel, those five people,
they had used excessive force, and they didn’t follow the rule of
engagement, and they had killed innocent Iraqis. We reserve the right of our
victims, Iraqis and all the citizens, which has been harmed during this
criminal act. We reserve the right to follow and to bring them to the justice.​

AMY GOODMAN: Al-Dabbagh also indicated that the Iraqi government
would support a lawsuit filed in US courts by victims of the shooting against
the five security guards from Blackwater, now known as Xe Services. That’s
X-e.

Last Thursday, Judge Urbina dismissed the charges against the five
Blackwater guards, saying US Justice Department prosecutors had built their
case on sworn statements that the guards had given under a promise of
immunity. He said the government’s explanations were,
quote, “contradictory, unbelievable and lacking in credibility.”

Defense lawyers called the decision, quote, “tremendously gratifying” and
said it invigorated their belief in the American court system.

Meanwhile, General Ray Odierno, the American commander in Iraq, said he
understood that people would be upset by the decision, but added,
quote, “the bottom line is, using the rule of law, the evidence obviously was
not there, or was collected illegally.”

Well, for more on this, I’m joined here in New York by attorney Scott Horton.
He is a contributor to Harper’s Magazine, an international law expert.

Welcome to Democracy Now!

AMY GOODMAN: Do you think that’s possible?

SCOTT HORTON: I think it is possible. Specifically in this case, there
were briefings that occurred on Capitol Hill early on in which senior officials
of the Justice Department told congressional investigators, staffers and
congressmen that essentially they didn’t want to bring the case. In fact,
one of the congressmen who was present at these briefings told me they
were behaving like defense lawyers putting together a case to defend the
Blackwater employees, not to prosecute them. And I think we see the
evidence of that copiously in Judge Urbina’s opinion.

AMY GOODMAN: I want to play a clip of Dr. Jawad, who lost both his
wife, Mohasin, and his son, Ahmed, in the Blackwater shootings on
September 16, 2007. In this excerpt, we hear Dr. Jawad describing how he
came to learn of what had happened to his family. He had been waiting that
day for his wife and son to pick him up from work. He was a doctor. When
he returned home alone that afternoon, he was worried not to find them
there. He called his brother, who went to the morgue after failing to find
them at the emergency room and operating theater of a local hospital. Dr.
Jawad is being translated from Arabic.

SCOTT HORTON: Good to be with you, Amy.

AMY GOODMAN: Were you surprised, Scott?

SCOTT HORTON: Well, we knew this was going to be an issue. I think
it was surprising that we got a decision before any evidence was ever taken
and it went to trial. And in fact, you know, I think the vehemence of Judge
Urbina’s decision is also something of a surprise.

AMY GOODMAN: Well, explain exactly what it was he decided and
what it was he was objecting to.

SCOTT HORTON: Well, first of all, I should note that General Odierno’s
statement is completely incorrect; that is, the decision to dismiss these
charges had nothing to do with lack of evidence or weak evidence against
the Blackwater employees. To the contrary, there was copious evidence.
There was plenty of evidence prosecutors could have used that they
evidently weren’t prepared to, including eyewitnesses there. The decision to
dismiss was taken as a punishment measure against Justice Department
prosecutors based on the judge’s conclusion that they engaged in grossly
unethical and improper behavior in putting the case together.

And specifically what they did is they took statements that were taken by
the Department of State against a grant of immunity; that is, the
government investigators told the guards, “Give us your statement, be
candid, be complete, and we promise you we won’t use your statement for
any criminal charges against you.” But the Justice Department prosecutors
took those statements and in fact used them. They used them before the
grand jury. They used them to build their entire case. And they did this
notwithstanding warnings from senior lawyers in the Justice Department that
this was improper and could lead to dismissal of the case. It almost looks like
the Justice Department prosecutors here wanted to sabotage their own
case. It was so outrageous.

DR. JAWAD: [translated] He went to the morgue, and the person
who was responsible for the morgue told him that they received sixteen
bodies as casualties from the incident that day. They were all identified,
identifiable, except for two. Two bodies completely burnt and disfigured.
They were put in black plastic bags.

My brother, on that day, in the morning, he was in the hospital, and he heard
the shots, and he heard helicopters and shooting from helicopters. It was a
battle, a fight, a war. And, of course, it didn’t occur to him that my wife and
my son were the victims—among the victims of the incident. My wife, what
remained from his head is only the jaws and part of the neck. I identified her
from the dental bridge, has a lot of dental bridge. And my son, what
remained from his clothes was only part of the shoes and socks.​

AMY GOODMAN: Dr. Jawad, talking about what happened to his wife
and his son, as they were gunned down in Nisoor Square by the Blackwater
operatives. Now the case against them has been dismissed. Scott Horton,
can another case be brought against them?

SCOTT HORTON: Absolutely. In fact, this decision puts the US in
breach of its treaty obligations to prosecute this case, which was an
absolute international law obligation. Now, this case was being prosecuted in
US court because of an order that was issued by the US occupation
authorities that granted these people immunity from Iraqi criminal
prosecution and accountability.

And I think the rule of international law is quite well settled. If the US
cannot, for technical reasons—that’s this ruling here, it is purely technical,
has nothing to do with the merits of the case—if the US cannot, for
technical reasons, prosecute the case, the US is really obligated to waive
the immunity under that order and surrender these individuals to the Iraqi
authorities for prosecution, probably with an agreement as to what charges
will be brought and an agreement that any prison term they were sentenced
to could be served in the United States.

In addition to that, there’s also the possibility, that was alluded to in the
setup here, for a civil action, and civil claims on behalf of the families of the
victims are already pending in US courts. And the Iraqi government has now
announced it’s going to directly support those claims.

AMY GOODMAN: What about the civil lawsuit that’s been brought
against the Blackwater guards?

SCOTT HORTON: Well, that will be for damages. And the evidence of
their culpability is quite overwhelming. You know, one of the surprising things
about this case before Judge Urbina is that the prosecutors were developing
their entire case based on the statements that had been issued by the
guards. Well, they didn’t need to do that. There were dozens of
eyewitnesses in Iraq who were only too happy to come forward and testify
about what happened and what was seen. And there was an incredible
amount of forensic evidence of what occurred that day. So there’s plenty of
evidence to be used. Plus, of course, in a civil suit, the standard for liability
is a lower standard. It’s not beyond a reasonable doubt; it’s rather by
preponderance of the evidence.

AMY GOODMAN: I wanted to read for you an excerpt of a Wall Street
Journal editorial that talks about this being another instance of “gross
prosecutorial misconduct, as abusive Justice lawyers went after an
unsympathetic political target…

“Something is rotten in the culture of Justice, leading ambitious”—it says—
“ambitious government crusaders to think they can get away with flouting
due process when the political winds are blowing hot. Congress and the
press corps may be too politically implicated to police this prosecutorial
malpractice, so it may be up to the judiciary to apply more stringent
sanctions.”

SCOTT HORTON: I think, as we go back and look at this past decade,
one of the things that marks it is exactly what the Wall Street Journal is
talking about here. It was a decade of gross prosecutorial abuse. We saw
lawyers at the US Department of Justice issue opinions attempting to justify
torture and mistreatment of prisoners. That was adopted as a legal mantra
of the department. We saw hundreds of politically motivated prosecutions
being brought, one of which is already withdrawn. That was the prosecution
of Senator Stevens of Alaska. But we have the Siegelman case, the Paul
Minor case, many others, where notwithstanding now overwhelming
evidence of misconduct by prosecutors, the Justice Department standing its
ground. We have the Broadcom case only a few weeks ago, in which a judge
out in California also found that there was gross prosecutorial abuse. And
now this case.

It’s really quite a mountain of evidence now pointing to serious misconduct
by Justice Department prosecutors. And there’s very little evidence—
although most of this occurred on the watch of the Bush administration,
there’s very, very little evidence that Eric Holder has realized the gravity or
severity of the situation or taken any appropriate measures to deal with it.


AMY GOODMAN: What about the US continuing to work with
Blackwater, now called Xe, X-e? You have just this latest news of two
government—Blackwater operatives reportedly killed last week at the CIA
base in Afghanistan.

SCOTT HORTON: Well, that’s right. In fact, I would note that one of
the statements the Iraqi government made in response to this was that
even though Blackwater was no longer formally a contractor in Iraq, they
found that many of the Blackwater employees had simply recontracted with
the new contractors there, so they were still in place. And the Iraqi
government said that’s completely unacceptable.

Well, the problem is that the US has not changed its pattern of heavy
reliance on private security contractors. If anything, we’re actually seeing
that reliance increase in connection with the operations in Afghanistan. And
in fact, there are only a handful of qualified and authorized service
providers. So Blackwater, almost by definition, is going to continue to hold a
large part of these contracts as they’re awarded, not with—this is
notwithstanding promises that were made by Hillary Clinton, when she was
running for president, to terminate the Blackwater contracts. I mean, now
she is Secretary of State, and Blackwater is still the principal security
contractor to the State Department.

AMY GOODMAN: In this issue, you’ve written about “graymailing”?

SCOTT HORTON: That’s exactly right. There’s obviously a far-reaching
criminal investigation going on into Blackwater right now, two grand juries
that have been impaneled. And we saw this recent interview of Erik Prince’s
with Vanity Fair in which he’s suggesting that he will spill the beans on all
sorts of delicate state secrets involving the CIA and JSOC, which is the
Special Operations Command of the military, if criminal cases are brought
against him and his company. So this is a classic case of graymailing, which
I think points to the foolishness at the outset of entrusting to a private
company some of the most secret and most confidential matters of the
nation’s intelligence community.

AMY GOODMAN: Well, I want to thank you very much, Scott Horton,
for being with us. Welcome to our new studios. It’s great to have you here.
Scott Horton, New York attorney specializing in international law and human
rights, also a legal affairs contributor to Harper’s Magazine, where he writes
the blog “No Comment."
 

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