In the meantime, in Baghdad, the survivors and victims’ families of Nisour Square were learning what U.S. justice really meant.
Nothing You Say Can and Will Be Used Against You in a Court of Law
Any criminologist will tell you that it is essential to seal off the scene of a crime as soon as possible. Evidence must be secured, witnesses interviewed, suspects identified and taken into custody. It is a race against the clock. The Bush administration’s handling of Nisour Square was a textbook case in how not to investigate a crime. Perhaps that was the point all along.
Ten days after the shooting, and with the administration facing a mounting scandal, the State Department’s “first blush” report on Nisour Square was leaked to the media. Dated September 16, 2007, the day of the shooting, and stamped “Sensitive but Unclassified,” it was titled “SAF [small-arms fire] attack on COM team.”119 The report alleged that the Blackwater team entered the square and was “engaged with small arms fire” from “8-10 persons” who “fired from multiple nearby locations, with some aggressors dressed in civilian apparel and others in Iraqi police uniforms. The team returned defensive fire.” It made no mention of any civilian deaths or injuries. While it appeared as though the State Department had investigated and was contradicting the widespread allegations of an unprovoked shooting, what was not revealed at the time was that the report was written by a Blackwater contractor, Darren Hanner, and printed on official State Department letterhead.120
It would be two weeks before the Bush administration would get around to deploying a ten-person team from the FBI—the official investigative body of the U.S. government—to Baghdad to investigate the shooting.121 As the FBI prepared to depart for Baghdad, reports emerged that the agents were to be guarded by none other than Blackwater itself.122 Senator Patrick Leahy quickly raised questions about the arrangement, forcing the Bureau to announce it would be guarded by official personnel and not personnel from the same company it was investigating.123
In the meantime, the official investigation of the Bush administration would be conducted by the State Department, whose personnel continued to depend on the chief suspects to keep them alive. “To rely on non-law enforcement to conduct sensitive law enforcement activities makes no sense if you want impartial justice,” said Melanie Sloan, a former federal prosecutor who currently serves as executive director of Citizens for Responsibility and Ethics in Washington.124
Normally when a group of people alleged to have gunned down seventeen civilians in a lawless shooting spree are questioned, investigators will tell them something along the lines of: “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” But that is not what the Blackwater operatives involved in the Nisour Square shooting were told. They were questioned by State Department Diplomatic Security investigators with the understanding that their statements and information gleaned from them could neither be used to bring criminal charges against them nor even be introduced as evidence.125
ABC News obtained copies of sworn statements given by Blackwater guards in the immediate aftermath of the shootings, all of which began, “I understand this statement is being given in furtherance of an official administrative inquiry,” and “I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding.”126 CCR’s Ratner said the offering of so-called “use immunity” agreements by the State Department was “very irregular,” adding he could not recall a precedent for it.127 In normal circumstances, Ratner said, such immunity was granted only after a grand jury or Congressional committee had been convened and the party had invoked its Fifth Amendment right for protection against self-incrimination. Immunity would then be authorized by either a judge or the committee.
“What the State Department has done in this case is inconsistent with proper law enforcement standards. It is likely to undermine an ultimate prosecution, if not make it impossible,” said military law expert Scott Horton of Human Rights First. “In this sense, the objective of the State Department in doing this is exposed to question. It seems less to be to collect the facts than to immunize Blackwater and its employees. By purporting to grant immunity, the State Department draws itself more deeply into the wrongdoing and adopts a posture vis-à-vis Blackwater that appears downright conspiratorial. This will make the fruits of its investigation a tough sell.”128 One U.S. diplomat described the relationship between the U.S. Embassy’s security office in Baghdad and Blackwater to the Los Angeles Times. “They draw the wagon circle,” the diplomat said. “They protect each other. They look out for each other. I don’t know if that’s a good thing, that wall of silence. When it protects the guilty, that is definitely not a good thing.”129
But it wasn’t just that the State Department was apparently corrupting or stifling the investigation or hindering a successful prosecution of Blackwater. As Congress investigated Nisour Square, what emerged was evidence of a clear pattern of the State Department urging Blackwater to pay what amounted to hush money to Iraqi victims’ families. “In cases involving the death of Iraqis, it appears that the State Department’s primary response was to ask Blackwater to make monetary payments to ‘put the matter behind us,’ rather than to insist upon accountability or to investigate Blackwater personnel for potential criminal liability,” according to a report of the House Oversight Committee. “The most serious consequence faced by Blackwater personnel for misconduct appears to be termination of their employment.”130 Congressman Waxman charged that the State Department was “acting as Blackwater’s enabler.”131
On Christmas Day 2006, the day after Blackwater operative Andrew Moonen allegedly shot and killed the Iraqi vice president’s bodyguard, the State Department recommended that Blackwater pay off the guard’s family. The U.S. Embassy’s chargé d’affaires wrote to the regional security officer, Blackwater’s handler, “Will you be following in up [sic] Blackwater to do all possible to assure that a sizeable compensation is forthcoming? If we are to avoid this whole thing becoming even worse, I think a prompt pledge and apology—even if they want to claim it was accidental—would be the best way to assure the Iraqis don’t take steps, such as telling Blackwater that they are no longer able to work in Iraq.”132
It was a prophetic warning, coming a full nine months before the Iraqis would demand just that in the aftermath of Nisour Square. The chargé d’affaires initially suggested a $250,000 payment, but the State Department’s Diplomatic Security Service said this was too much and could cause Iraqis to “try to get killed so as to set up their family financially.”133 In the end, the State Department and Blackwater reportedly agreed on a $15,000 payment. During his Congressional testimony, Prince corrected that figure, saying Blackwater had actually paid $20,000.134 In another case, in Al Hillah in June 2005, a Blackwater operator killed an “apparently innocent bystander” and the State Department requested that Blackwater pay the family $5,000.135 “Can you tell me how it was determined that this man’s life was worth $5,000?” Representative Davis asked Prince. “We don’t determine that value, sir,” Prince responded. “That’s kind of an Iraqi-wide policy. We don’t make that one.”136 In cases where the government and Blackwater claimed the guards fired in self-defense, though, no money was offered to victims’ families. The three victims of the Blackwater sniper at the Iraqi TV station in February 2007, for example, received nothing.137