NYT : Immunity Deals Offered to Blackwater Guards

Tuesday, October 30, 2007

Immunity Deals Offered to Blackwater Guards

By DAVID JOHNSTON | Published: October 29, 2007

WASHINGTON, Oct. 29 — State Department investigators offered Blackwater security guards immunity during an inquiry into last month’s deadly shooting of 17 Iraqi civilians, government officials said today, calling it a potentially serious investigative misstep that could complicate efforts to prosecute the company’s employees involved in the episode.

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 said the officials, who spoke on the condition of anonymity because the investigation is ongoing. 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 episode were offered what officials described as limited-use immunity, which means that they were promised 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 today by the Associated Press.

State and Justice Department spokesmen would not comment on the matter. “If there’s any truth to this story, then the decision was made without consultation with senior officials in Washington,” one State Department official said.

A spokeswoman for Blackwater, Anne E. Tyrell, said: “It would be inappropriate for me to comment on the investigation.”

The immunity deals came as 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are immune from Iraqi law under a directive signed by the United States occupation authority in 2003 that has not been repealed by the Iraqi parliament.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 is no basis for holding non-Defense Department contractors accountable under United States law and urged Congress and the administration to urgently address the problem.

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

The government has transferred the investigation from the diplomatic service to the Federal Bureau of Investigation, which has begun re-interviewing Blackwater employees without any grant of immunity in an effort to assemble independent evidence of possible wrongdoing.

Richard J. Griffin, the chief of Diplomatic Security Service resigned last week, in a departure that appeared to be related to problems with his supervision of Blackwater contractors.

In addition, the Justice Department reassigned the investigation from prosecutors in the criminal division who had read the State Department’s immunized statements to prosecutors in the national security division who had no knowledge of the statements.

Such a step is usually taken to preserve the government’s ability to argue later on in court that any case it has brought was made independently and made no use of information gathered under a promise that it would not be used in a criminal trial.

Immunity is intended to protect the Fifth Amendment right against self-incrimination while still giving investigators the ability to gather evidence. Usually people suspected of crimes are not given immunity and such grants are not given until after the probable defendants are identified. Even then, prosecutors often face serious obstacles in bringing a prosecution in cases in which defendants have been immunized.

The courts have made it all but impossible to prosecute defendants who have been granted immunity since the appellate court reversals of the Iran-contra affair convictions against John M. Poindexter, a former national security adviser, and Oliver L. North, a national security aide, who had each been immunized by Congress.

John M. Broder contributed reporting.