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The Blackwater Trial: Part 1 – Two Factual Issues

Earlier this week, a jury in Washington D.C. convicted four Blackwater guards for a shooting at Nisour Square, Baghdad. The sniper Nicholas Slatten was convicted of premeditated murder. His three teammates, Evan Liberty, Paul Slough, Dustin Heard, were convicted of voluntary manslaughter and a weapons offence. For an excellent overview of the case and the verdict against each accused, see the Washington Post’s breakdown here.

Out of a shared interest in the intersection between commerce and criminality in war zones, we jointly attended every day of the guards’ trial except one. We also received help and information from both sides to the litigation. So, instead of rehearsing various views—that the case is “a watershed for accountability in war zones” or the first step toward more progressive regulation of the private military industry—we provide a summary of both sides to the case.

In the future, we will reflect on the trial from various analytic vantage points, but for now, we set out below competing evidence on two of the most important factual issues in this trial. In Part 2, which will follow separately, we will discuss two legal controversies that arise from the case, which may feature on appeal.

We resist the temptation to offer our own opinion about the case here (although we have done this to some degree during a talk last week at Columbia Law School, before these verdicts came down). Our purpose is more to orient readers around the core contested factual and legal issues in this historic trial, in ways that will hopefully create space for fulsome discussion and debate.

We also include aspects of the evidence to help illustrate what took place during the this complex trial. In that regard, we start by including immediately below a copy of an exhibit from the trial that was generously supplied to us by the Department of Justice’s investigators. The chart helps to identify the defendants, introduce the other Blackwater guards we refer to throughout these two summaries, and explain the guards’ relative position within the four vehicle convoy that day:

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1. “Lighting the Fuse” : Was the White Kia a Threat?

According to the prosecution, after the Blackwater convoy locked down the traffic circle at Nisour Square that day, Nicholas Slatten spotted an Iraqi medical student named Ahmed Al Rubia’y in a white Kia car through the scope of his SR25 sniper rifle. The prosecution’s case was that without provocation or cause, Slatten fired a well-aimed shot through the windshield into Ahmed’s head, “lighting the fuse” for his team’s subsequent shooting spree. Prosecutors reasoned that, once shot, Ahmed’s foot slipped off the break, causing the automatic transmission vehicle to roll forwards slowly toward the convoy. Then, other members of Raven 23 opened fire on the car and much of the surrounding traffic jam with heavy weaponry. Below, we include a picture of the white Kia car after the incident:

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Conversely, the defense argued that Ahmed’s white Kia burst forward. Paul Slough, believing it to be a Vehicle Borne Improvised Explosive Device (VBID), fired the first shots into the engine block of the car to prevent it from continuing to approach the convoy. When the vehicle did not stop, members of the Iraqi police approached the car, appearing to push it further toward the Blackwater convoy. At that point, Blackwater’s Jeremy Ridgeway, who had pled guilt to lesser charges in exchange for his testimony in this trial, shot Ahmed’s mother who was understandably hysterical in the passenger seat of the white Kia at this time. When the car did not stop, Slough fired a single M203 grenade at it.

To support its version of events, the defense argued that there was no forensic evidence linking any victims to shots from Slatten’s sniper rifle, that no eyewitness saw him shoot at the white Kia, and that he himself had never admitted as much. Most importantly, almost all members of Raven 23 testified that they perceived the white Kia as a genuine threat while it was approaching the convoy.

In response, the prosecution retorted that this defense narrative was asking the jury to “start the movie 5 minutes in.” Members of Raven 23 might have perceived the white Kia to be a threat once it had started to roll, but Nicolas Slatten never did; he shot the driver when the car was stationary. To the allegation that there was no forensic evidence linking bullets to the deceased, the prosecution insisted that this arose because the multiple grenades fired at the white Kia incinerated the bodies and ballistic evidence inside. Investigators’ attempts at recovering workable evidence with sieves and shovels proved futile.

As proof that Slatten took that first shot, the prosecution called Majed Al-Gharbawi, who was in the car in front of the white Kia. He testified that he heard one shot before feeling the white Kia bump his car from behind. Jimmy Watson, Raven 23’s shift leader, also testified at the Grand Jury that he heard Slatten shoot twice at the outset of the incident, though he was reluctant to repeat this at trial. Many other witnesses reported hearing “pops” before any other unusual activity. And after the incident, Slatten allegedly told Jeremy Ridgeway that he “popped a guy’s head like a grape.” For obvious reasons, the defense called on the jury to discount this as just another lie from arguably the worst offender that day to save his own skin.

A number of witnesses also testified that Slatten had a deep contempt for the Iraqi people. The jury heard evidence that he had told a teammate that he had shot a woman who was cutting vegetables on a previous occasion, and that he’d said he wasn’t sure if he felt enough remorse for his actions. Others said Slatten had previously fired where insurgents “would be” to draw them out, and that his team members had blindly followed his lead in previous incidents, in ways they later regretted. At one point, a witness reported that he had heard Slatten say that Iraqis are “not even human, they are animals.” His lawyers strongly objected to these allegations, saying they were all unsubstantiated hearsay. Evidently, the jury placed great weight on it.

2. Incoming Gunfire: Important, Negligible or Fictitious?

Whether or not the white Kia was reasonably perceived to be a threat was far from the only issue at trial—in the prosecution’s words, “so much more death and destruction that occurred outside of the white Kia.” After the defendants shot this first vehicle, they continued to shoot automatic machine guns southwards, killing unarmed men, women and children. A grenade landed in a girls’ school close-by, one passenger in a passing bus was shot dead, and the jury heard evidence that at least one Blackwater member fired a number of rounds at an oil tanker. Here is a chart of just some of the victims:

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The defense argued that the convoy was taking incoming fire and that these civilians were very unfortunate collateral damage in a necessary and reasonable armed confrontation. The prosecution rejected this explanation entirely, boldly arguing that there was no incoming fire at Nisour Square at all, and less intensely, that even if there was, it was certainly not enough to justify the extent of the firepower employed that day. On this score, prosecutors colorfully claimed that “the defense would have you believe that their clients were storming the beaches of Normandy that day.”

Investigators did find AK-47 shell casings south of Nisour Square, including at a bus stop, a dirt area nearby and behind the southeast corner of the adjacent girls school. Some Raven 23 members also testified that they heard AK-47 gunfire. Eddie Randall, seated in the driver’s seat of the fourth vehicle, told the jury he saw bullets strike the side of the BearCat, although the prosecution labeled him “Superman” from then on, reasoning that no mere mortal could possibly distinguish bullets from shrapnel in flight.

Brett Fishback, a Green Beret not connected to the shooting, believed he picked up fresh AK-47 rounds during the event. Again, the prosecution claimed that this defense witness had magical powers, since FBI lab technicians often could not definitely identify whether a particular round came from an AK-47, even after extensive scientific testing. Still, Tommy Vargas, also a member of Raven 23, called out locations of “muzzle flashes”, yelled “contact, contact, contact” at the time, and the Blackwater logbook back at base recorded that members of Raven 23 had radioed in that they were taking fire. Curiously, Vargas did not testify at trial.

In addition, the BearCat sustained damage during the incident, which the defense would point to as corroborating the guards’ self-defense case. The BearCat’s radiator was punctured and the side of the vehicle had multiple “pock-marks.” To the defense, these “pock-marks” were caused by incoming AK-47 gunfire and any other explanation was “ridiculous.” For the prosecution, however, these marks were from grenade fragments from Raven 23’s own M203 grenade launchers. “The irony – the ultimate irony of this case,” claimed the prosecutors, “is that they did it to themselves.”

In elaborating on this point, the prosecution argued that strikes found on the vehicle resulted from blow-back from a grenade detonated too close to the convoy, not AK-47 fire. The prosecution showed an image of the vehicle from the incident alongside an identical vehicle that they had shot at with an AK-47 to generate a comparator. The damage to their test vehicle was much more significant than the dings on the Blackwater vehicle. Much debate ensued about whether the test was meaningful. But tellingly, fragments from a grenade were actually found in the tire of the Blackwater vehicle.

As for the AK-47 shell casings found at the scene, the prosecution dismissed them as simple debris, arguing that “finding shell casings on the streets of Baghdad is about as common as finding a cigarette butt in a major U.S. city. It’s about as common as finding a seashell at the beach.” Apparently, Iraqi police fire into the air to clear traffic. In fact, one Iraqi policemen testified that this practice was so commonplace in Baghdad that the Iraqi Police had to issue a formal directive banning it.

Finally, even if there was a “ghost AK-47 armed man” as the prosecution put it and the white Kia was reasonably construed as a threat, the prosecution still asserts that the shootings were incredibly excessive when so many of the victims were nowhere near the white Kia or the bus stop. Gunners in two Blackwater helicopters that were flying figure eights above the incident at the time reported that they saw no threat and did not fire. They were looking, they said, and would certainly have engaged, but saw nothing. The idea that these guards were engaged in a firefight like storming the beaches of Normandy seemed seriously far-fetched.

Even if there was some incoming fire, military personnel confirmed that this response was out of all proportion to normal military practices in Iraq over that period. Colonel Tsarsa of the US Army, whose battalion was stationed in the very same area at the time, testified that AK-47 fire was “harassment fire” when directed at personnel in armored vehicles. Being on a defensive mission with no client to protect, this Blackwater team could have “turtled-up” and left. Instead, they fired grenades, hand-held automatic weapons and mounted heavy machine guns into a densely populated traffic jam.

The shooting continued for over ten minutes. No dead insurgents were found.

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About the Authors

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).

is a third-year J.D. student at the University of British Columbia Faculty of Law. She attended every day of the Blackwater Trial except one.