Lawless: Bush State Dept Offered Blackwater Mercenaries Immunity

By David Johnston, International Herald Tribune. Posted October 30, 2007.

State Department investigators offered Blackwater USA security guards immunity during an inquiry into last month's deadly shooting of 17 Iraqis in Baghdad -- a potentially serious investigative misstep that could complicate efforts to prosecute the company's employees involved in the episode, government officials said Monday.

The State Department investigators from the agency's investigative arm, the Bureau of Diplomatic Security, offered the immunity grants even though they did not have the authority to do so, the officials said. Prosecutors at the Justice Department, who do have such authority, had no advance knowledge of the arrangement, they added.

Most of the guards who took part in the Sept. 16 shooting were offered what officials described as limited-use immunity, which means that they were promised that they would not be prosecuted for anything they said in their interviews with the authorities as long as their statements were true. The immunity offers were first reported Monday by The Associated Press.

The officials who spoke of the immunity deals have been briefed on the matter, but agreed to talk about the arrangement only on the condition of anonymity because they had not been authorized to discuss a continuing criminal investigation.

The precise legal status of the immunity offer is unclear. Those who have been offered immunity would seem likely to assert that their statements are legally protected, even as some government officials say that immunity was never officially sanctioned by the Justice Department.

Spokesmen for the State and Justice Departments would not comment on the matter. A State Department official said, "If there's any truth to this story, then the decision was made without consultation with senior officials in Washington."

A spokeswoman for Blackwater, Anne Tyrrell, said, "It would be inappropriate for me to comment on the investigation."

The immunity deals were an unwelcome surprise at the Justice Department, which was already grappling with the fundamental legal question of whether any prosecutions could take place involving American civilians in Iraq.

Blackwater employees and other civilian contractors cannot be tried in military courts, and it is unclear what American criminal laws might cover criminal acts committed in a war zone. Americans are immune from Iraqi law under a directive signed by the United States occupation authority in 2003 that has not been repealed by the Iraqi Parliament.

A State Department review panel sent to investigate the shootings concluded that there was no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to address the problem.

The House overwhelmingly passed a bill this month that would make such contractors liable under a law known as the Military Extraterritorial Jurisdiction Act. The Senate is considering a similar measure.

Some legal analysts have suggested that the Blackwater case could be prosecuted through the act, which allows the extension of federal law to civilians supporting military operations.

But trying a criminal case in federal court requires guarantees that no one has tampered with the evidence. Because a defendant has the right to cross-examine witnesses, foreign witnesses would have to be transported to the United States.

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