By Del Quentin Wilber
Washington Post Staff Writer
Saturday, December 6, 2008
Five Blackwater Worldwide Security guards have been charged in a September 2007 shooting that left 17 Iraqi civilians dead and raised questions about the U.S. government's use of security contractors in combat zones, according to two sources familiar with the case.
The guards, all former U.S. military personnel, worked as security contractors for the State Department, assigned to protect U.S. diplomats and other nonmilitary officials in Iraq.
Federal prosecutors obtained the indictment Thursday, and it was sealed. Channing Phillips, a spokesman for the U.S. Attorney's Office in the District, declined to comment on the investigation. The exact nature of the charges could not be determined. The five security guards are expected to surrender to authorities on Monday, the sources said.
Authorities have not publicly identified the guards.
The indictment caps a year-long investigation into the shooting, which occurred Sept. 16, 2007, when the guards' convoy arrived in Baghdad's bustling Nisoor Square.
An Iraqi government investigation concluded that the security contractors opened fire without provocation. And the U.S. military and initial findings by the FBI found that Blackwater guards were the only ones who fired their weapons that day. Blackwater has said its guards were fired upon and acted in self-defense.
A federal grand jury in Washington has heard testimony from dozens of witnesses, including some Iraqis, the sources said.
Anne E. Tyrrell, a Blackwater spokeswoman, said that "it would be inappropriate to comment on anything under seal." But she added: "Based on the information available to us, however, we do not believe criminal violations occurred."
"If it is determined that an individual acted improperly," she said, "Blackwater would support holding that person accountable."
The shooting strained tensions between the Iraqi government and the United States over the use of security contractors in the country. Responding to widespread anger among Iraqis over the shooting, the country's political leaders have insisted that contractors be held more accountable under Iraqi law. They have been exempt under a 2003 decree by the U.S. occupation administration.
The Iraqi parliament recently approved a security pact that allows foreign security contractors to be tried under Iraqi law for crimes.
The sources, who spoke on the condition of anonymity, refused to discuss specific charges facing the guards because the indictment was sealed.
But they said the men generally face assault charges -- allegations that do not require prosecutors to prove that the guards actually wounded or killed any Iraqis. They will have to prove only that they fired their weapons in an attempt to harm them, the sources said.
Some of the men may face charges under a 1980s drug law that has severe penalties for use of a machine gun in a crime of violence, the sources said. The law has a 30-year mandatory minimum sentence.
The guard's lawyers have urged the Justice Department not to indict the men, saying the government does not have jurisdiction to bring charges.
The sources said the government is bringing the charges under the Military Extraterritorial Jurisdiction Act, which has been previously used to prosecute only cases referred to federal prosecutors by the Defense Department for crimes committed by military personnel overseas.
Some legal scholars and the defense lawyers have argued that the law does not apply to the Blackwater guards because they were working for the State Department. Such a position was buttressed by an August report by the Congressional Budget Office, which said that the law does not apply to civilians working for agencies other than the Defense Department. Legislative proposals to extend the law's provisions to other agencies have fallen short in Congress.
But prosecutors are likely to argue that a 2005 amendment to the law expanded it to include contractors "supporting the mission of the Department of Defense."
Scott L. Silliman, a Duke Law School professor and expert on national security law, said defense lawyers may win the legal argument.
"The hardest issue for prosecutors will be jurisdictional," he said.
Silliman said the lawyers also will argue that the men are immune from prosecution or that the evidence was obtained improperly because they gave statements to State Department officials after the shooting. The interviews were conducted under legal protections against self-incrimination, and the guards were told that the statements could not be used against them.
Blackwater is one of three U.S. security firms under contract with the State Department to provide personal security in Iraq.
The Nisoor Square incident took place on a Tuesday afternoon. A Blackwater team arrived in several vehicles at the intersection -- accounts differ as to why they were there -- and tried to stop traffic. Shooting erupted, leaving numerous Iraqis dead and wounded.