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The Trial of Ex-Blackwater: An Overview of the Competing Stories

Opening statements in the trial of the four Blackwater members alleged to have carried out the killings in Nisour Square, Baghdad, Iraq ended in Washington D.C. this week. On Tuesday this week, the government produced an overview of the evidence it would be presenting over the next few months, and the four defense teams explained their version of events the following day. There are various points of interest for Just Security readers in this trial, but I propose to provide you only with a rough overview of the arguments raised by the parties at this juncture, leaving academic and policy type questions for analysis elsewhere. Together with the excellent assistance of Sara Gray, presently a law student, I’ll be following this trial every day over the next few months, and plan to tweet about it regularly from @jimgstewart. I’ll also use Twitter to advertise my own writing about the trial’s broader implications here and in other fora, so for those interested, please tune in. In this post, I limit myself to providing a necessarily rudimentary factual overview of the case as presented by the parties.

Background

This case involves an incident that took place at a traffic roundabout called Nisour Square on September 17, 2007. Nisour Square is located directly adjacent to the Green Zone in Baghdad. The four defendants in the case are Paul Slough, Evan Liberty, Nick Slatten and Dustin Heard. The defendants are just four of 19 members of Raven 23, a Backwater unit charged with tactical assistance to the Department of State in Iraq. At midday on September 27, the Raven 23 unit deployed in a convoy of four armored vehicles to help assist a Department of State official return to base after a car bomb went off elsewhere in the city. Several of the members of Blackwater’s Raven 23 unit opened fire in Nisour Square, leaving 14 civilians dead and at least 19 wounded.

The majority of defendants are charged with manslaughter, attempted manslaughter, aiding and abetting manslaughter, and a firearms charge (the latter comes with a statutory minimum of 30 years imprisonment). For a copy of the indictment, see here. All pled not guilty (obviously), but at least one individual within their unit has pled guilty in exchange for testimony against these defendants. This insider will be a key witness.

Only one accused, Nick Slatten, is charged with pre-meditated murder. There is a long backstory here, but briefly, because of a statute of limitations expired on a manslaughter charge against him, the government had to substitute first degree murder so as not to let him off the hook entirely. The indictment alleges that Slatten is responsible for first degree murder because, with a premeditated desire to kill Iraqis, he allegedly shot the first civilian in Nisour Square with a sniper rifle. As you’ll see below, he disputes this whole account.

The Government Case

The government argues that this was either an entirely unprovoked attack by the members of Raven 23, or a seriously disproportionate reaction to a perceived risk.  There are several core arguments the government uses to substantiate this theory:

  • Only 7 of 19 members of Raven 23 fired their weapons at all. If there was a threat, why did only a small number perceive and engage it (so heavily)?
  • A number of the members of Raven 23 will testify that they saw no threat;
  • Blackwater employees in a Helicopter overhead will give evidence that they saw no threat;
  • Two army investigators inspecting the scene soon afterwards found “no evidence of a two way battle;”
  • Upon returning to base, one defendant allegedly high-fived his teammates, bragging “I had my gun on fully automatic;”
  • One member of Raven 23 publicly confiscated one defendant’s weapon after the incident;
  •  “Ding marks” on one of Raven 23’s armored vehicles were shrapnel from a grenade launcher they themselves fired, not evidence of taking hostile fire.

The opening statements were very intriguing. At one stage, the prosecutor lay down on the carpet to show how victims were attempting to hide in the gutter of the road to protect themselves. He also brought the heavy weaponry used at Nisour Square to explain its ability to fire a large number of rounds per second, and queried why anyone would fire a grenade launcher at a car they thought contained a suicide bomb: “that’s like firing a bomb at a bomb.”

Most intriguingly, the prosecutor had to come down hard on the State Department investigation that took place four days after the event, since that particular investigation found AK47 ammunition cartridges in the vicinity of where the defendants were firing. To some extent, this evidence was consistent with the defendants’ self-defense arguments, so the prosecutor told the court that the State Department investigation, “if you can call it that,” was a “failure,” “haphazard” and seemingly intent on “clearing contractors.”

The Defense Cases

The defendants’ case is primarily about self-defense. Several of the defense attorneys emphasized, time and again, how their client’s guilt needs to be considered based on their subjective experience, in light of the enormously insecure conditions in Baghdad at the time. Here are some of the defense responses:

  • A car bomb had exploded elsewhere in the city that morning near a State Department official, which was precisely why Raven 23 was called out;
  • Over the prior two weeks in September 2007, Blackwater units were attacked four times;
  • At least one defendant had lost friends in Iraq;
  • The Department of State issued the defendants the heavy weaponry they used, because it is was necessary in Baghdad at the time;
  • There was evidence from the State Department and others of AK47 coming from the direction the defendants were firing;
  • The “ding holes” in the armored vehicle were AK47 rounds; any other theory is “ridiculous;”
  • There was a log kept contemporaneously during the incident at Blackwater’s base, which recorded Raven 23 members’ radio reports that they were taking fire at precisely this time;
  • Most of Raven 23 did not fire because of their location in the four-vehicle armored convoy, not because there was no threat.

Overall, the defense emphasized two themes. First, one defense attorney used an electric pump to blow up a balloon in a couple of seconds, to the point that it exploded with a loud bang. His point was that it takes just this amount of time to identify and neutralize life-threatening threats in Iraq. Second, he pressed the slogan “no Monday morning quarterbacks.” Here, his point was that one cannot second guess decisions made in the heat of battle from the comfort of a DC courtroom after a long process of deliberation; “that’s not fair”, he argued, because “we weren’t in these defendants’ shoes.”

The Military Extraterritorial Jurisdiction Act Issue

This case is brought on the basis of the Military Extraterritorial Jurisdiction Act. That Act now allows federal criminal jurisdiction over certain military contractors who commit federal crimes overseas, under certain circumstances (I won’t list the circumstances, but see here for the current version of the Act). Steve Vladeck and Bobby Chesney have written about other MEJA cases (see here and here), and in discussions with a Senior DOJ Attorney this week, I was assured that there’ve been around a couple dozen of these cases (not all of which went to trial). Still, one aspect of MEJA struck me (and the defendants’ attorneys) as “quite unusual.” One component of the MEJA jurisdiction is a question of fact for the jury. All of the defense attorneys began their openings by insisting that the jury needed to find whether Raven 23 was “related to and supporting the mission of Department of Defence forces” (see here for that definition). Although the prosecutor will undoubtedly argue that if Blackwater didn’t do this work DOD would, jurisdiction is far from a foregone conclusion when Blackwater’s contract was with the Department of State. Interestingly, then, if the jury returns a verdict of not guilty, we may never know whether the acquittal is based on jurisdictional grounds, or the prosecutor’s failure to prove some substantive element of the charges.

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This trial is very important for people in a variety of fields, which I’ll discuss in a subsequent post. For now, I hope this very rough factual overview of the case sets the scene for discussions to come. If you’re interested, please follow me on Twitter @jimgstewart for regular information and occasional commentary over the coming months.

 

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About the Author

is an Associate Professor at the Peter A. Allard School of Law at the University of British Columbia. He has previously worked for the Office of the Prosecutor at the International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as the Legal Division of the International Committee of the Red Cross. Follow him on Twitter @jimgstewart).