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Missteps, errors and miscommunication doomed Blackwater case

By Del Quentin Wilber
Washington Post Staff Writer
Thursday, February 11, 2010; A04

When its investigation into a deadly and politically sensitive Baghdad shooting involving U.S. security contractors ran into major trouble, the Justice Department quickly handed it over to Kenneth Kohl, a seasoned and well-respected prosecutor.

Kohl, after all, had successfully prosecuted Colombian narco-terrorists, overseen the investigation of the 2001 anthrax attacks and won scores of hard-fought homicide trials. He seemed to be the perfect prosecutor to lead a complex and thorny investigation into the controversial actions of U.S. private contractors in a faraway war zone.

So, how then, with all the forewarning of the case's pitfalls and Kohl's experience and dedication, does the Justice Department now find itself defending the prosecutor's conduct? How could such a high-profile case, one that generated international headlines and roiled U.S.-Iraq relations, implode so badly? On Dec. 31, a federal judge threw out the charges against the five Blackwater security guards.

The questions come as the Justice Department last month launched its appeal of a scathing opinion by the well-respected judge, who ruled that the conduct of Kohl and other prosecutors was so egregious that it "requires dismissal of the indictment against all the defendants." The guards had been accused of killing 14 Iraqi civilians and wounding 20 others in an eruption of gunfire and grenade explosions in a busy Baghdad square on a sunny afternoon in 2007.

The stakes are high. It was the most serious incident involving security contractors in Iraq or Afghanistan and raised profound questions about the oversight of private U.S. guards in war zones. Fallout from the incident was so intense that it forced Blackwater to rename itself; it now goes by Xe Services. In a sign of the case's continuing significance in U.S.-Iraq relations, Vice President Biden took the unusual step of announcing the appeal of the case's dismissal while on a trip to Baghdad.

Legal experts have said the Justice Department faces a difficult task in winning a reversal, pointing to what they consider a detailed and well-reasoned opinion by U.S. District Judge Ricardo M. Urbina, and could risk further embarrassment if another set of judges comes to similar conclusions. The Justice Department's reputation has already been marred by prosecutorial misconduct in the trial of then-Sen. Ted Stevens (R-Alaska) on corruption charges. A federal judge threw out Stevens's conviction, and a lawyer appointed by that judge is investigating Justice Department prosecutors over potential criminal contempt violations.

A review of Urbina's decision, recently unsealed court papers and interviews with dozens of prosecutors, investigators and defense lawyers paint a less-than-flattering picture. They reveal a passionate prosecutor who risked his life in Iraq to seek justice while pushing legal boundaries and an investigation plagued by missteps, miscommunication and bungling.

Even when Kohl's team took steps to protect the integrity of the investigation, the procedures proved inadequate to withstand three weeks of intense closed-door hearings.

Tough case to prosecute

Kohl declined to comment. But in an e-mailed statement, he wrote: "All of us who were involved in this case felt an obligation to the 34 victims who were killed or wounded at Nisoor Square to do everything we could, within the bounds of the law, to bring this case to trial in an American courtroom.

"We don't want federal prosecutors to flinch at taking on tough cases involving complex legal issues, and I worry that some of the reaction to the court's ruling will have that effect." He declined to elaborate.

Kohl, 50, grew up in the Chicago area and joined the Justice Department in 1985, straight out of the Northern Illinois University College of Law. He lives with his wife and two children in the D.C. suburbs.

The prosecutor quickly rose through the ranks of the U.S. attorney's office in the District. Several colleagues say Kohl never lost a homicide trial. They described him as an aggressive and zealous advocate for victims.

In more recent years, he was assigned national security cases, including the years-long investigation into the anthrax attacks. In 2007, Kohl won a conviction against a Colombian rebel leader who took three Americans hostage. The man was sentenced to 60 years in prison.

Alex Barbeito, an FBI agent who worked on that case, said Kohl was meticulous and brave. "He came down to Bogota several times, despite death threats to U.S. prosecutors," Barbeito said. "To me, he's exactly the type of prosecutor an agent wants to handle complex international criminal cases."

Colleagues say Kohl was fearless in his pursuit of the Blackwater guards, visiting Baghdad three times. On one visit, while staying in a trailer in the Green Zone, the compound was hit by rockets and mortar shells, forcing Kohl to dive under his bunk for shelter.

"And yet he still went back," a fellow prosecutor wrote in an e-mail. "It would take a lot for me to go back there" after that.

The shooting that led to the criminal charges occurred Sept. 16, 2007, when 19 Blackwater Worldwide security guards were part of a heavily armed convoy code-named Raven 23. At the time, Blackwater had a contract to provide security for State Department officials in Iraq.

Just after noon that day, Raven 23 arrived in Nisoor Square, which is near the Green Zone, to support other Blackwater teams in response to a bombing.

Soon, one Raven 23 guard was shooting at a white car. Five others fired machine guns and grenade launchers. By the time the explosions stopped, at least 14 Iraqis were dead and 20 were wounded, authorities have said.

Within hours, State Department investigators were questioning the Blackwater guards. Four of the five guards later indicted in U.S. District Court in Washington -- Paul Slough, Nicholas Slatten, Donald Ball and Dustin Heard -- told investigators that they opened fire in the square in self-defense. The fifth, Evan Liberty, did not say whether he fired a shot but said the others responded to an attack by insurgents.

Over the next few days, the guards gave written statements, and some were re-interviewed by State Department agents.

Guards' tainted accounts

The shooting caused an uproar. The Iraqi government insisted that its citizens had been slain in an unprovoked attack. Meanwhile, the State Department and Blackwater said the guards had been responding to an ambush.

Caught in the middle was the Justice Department.

Ten days after the incident, State Department officials gave federal prosecutors and FBI agents copies of their initial reports, which included information from the guards' statements.

That caused an immediate problem. The guards had given written and follow-up interviews. The statements had been given under assurances that they would not be used in court and under warnings that the guards could be fired if they didn't cooperate.

Because of the assurances, prosecutors and FBI agents should never have been exposed to those accounts, so those agents and lawyers were reassigned. The Justice Department then turned the case over to Kohl.

Kohl and another prosecutor, Stephen Ponticello, examined the evidence and decided to treat the written statements as if they were out of bounds, court records indicate.

But Kohl did not think that the initial oral interviews deserved the same protection. To help Kohl navigate immunity questions, the Justice Department assigned Raymond Hulser, an expert on such issues, to act as a "taint" attorney. His job would be to screen material before it got into the hands of prosecutors and agents and to provide legal advice.

Within weeks, according to court records, Hulser was warning prosecutors and investigators to avoid the oral interviews because he thought a judge might rule that they were also protected.

In November, Hulser wrote an e-mail detailing his concerns to a Justice Department supervisor, Michael Mullaney, who forwarded the comments to Kohl. "Got it," Kohl responded. "Thanks Mike."

Hulser made a string of similar warnings over the next few months. Kohl says he never received the advice, and he denied having read the e-mail to which he had responded.

By January and February 2008, Kohl and FBI agents were interviewing the State Department investigators who had taken the guards' first oral statements -- something that Hulser thought should have been avoided.

Kohl eventually obtained reports of the oral statements and used those accounts in search warrants to obtain drafts of the guards' written statements. Hulser was never told of the search-warrant effort.

A grand jury indicted the five guards in December 2008 on manslaughter and weapons charges. A sixth guard, Jeremy Ridgeway, pleaded guilty to manslaughter charges.

By October, Urbina was holding closed-door hearings to determine whether the guards' statements had improperly influenced the investigation.

Kohl testified at the hearings, while other Justice Department lawyers defended the government's case. They argued that the oral statements were fair game and that any taint from the written accounts was harmless.

The guards' attorneys, who were paid by Blackwater, argued that prosecutors should have avoided the statements and that the case was too damaged to continue.

Urbina ruled in favor of the guards, writing that it was "objectively reasonable" for the contractors to believe that their first interviews were protected because they had given such statements in past shootings. But he didn't stop there.

The judge chastised prosecutors for not heeding the advice of Hulser and other experts. He also said that he did not believe Kohl's assertion that he had not received the expert's advice until it was too late.

The protected statements infected the entire case, Urbina wrote, and prosecutors even exploited them to decide whether to charge two of the guards. He was particularly perplexed that Kohl had thought it proper to use the oral accounts in search warrants for written statements, Urbina added.

The judge also accused prosecutors of not giving grand jurors evidence that was helpful to the guards. He found that Kohl and other prosecutors did not take steps to shield grand jurors from tainted testimony, particularly from three Blackwater guards who read the defendants' written statements or news stories describing them.

More subtle actions also irked the judge.

Kohl, for example, went out of his way to tell the grand jury that the five guards had given immunized statements to investigators, the judge wrote. Urbina felt that Kohl was playing dirty, "to color the grand jury's thinking," by alluding to the guards' statements without further elaboration.

"The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants' compelled testimony were all too often contradictory, unbelievable and lacking in credibility," wrote Urbina, voicing astonishment that such a "seasoned and accomplished" lawyer could make so many blunders.

wilberd@washpost.com

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