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The Blackwater Trial: Part 2 – Two Legal Issues 

In the first part of this summary, we introduced the individuals in Blackwater’s Raven 23 team and set out their contrasting arguments about what took place at Nisour Square around midday on September 16, 2007. In this second part, we move from questions of evidence to issues of law. We first address aiding and abetting, which were central to the prosecution’s case and hotly debated by all sides throughout the trial. We then consider the Military Extraterritorial Jurisdiction Act (MEJA), which intriguingly, gave rise to issues of fact that were left to the jury in their final deliberations.

1. Aiding and Abetting the Team: Does the Back Alley Beating Analogy work?

Somewhat surprisingly, complicity and causation were the most important legal issues in this case.

For no fault of its own, the prosecution frequently could not prove that defendant X fired weapon Y killing victim Z. Recall that ballistics from the white Kia were simply worthless from a forensic standpoint, because the car and its content were completely incinerated by Blackwater’s grenades. Witnesses often had real difficulty identifying precisely which defendant shot at whom as they scrambled for their lives in terror. Overall, the number of shooters, volume of shots, the lengthy passage of time after the incident before a rigorous investigation took place, and the Iraqi practice of burying the dead as soon as possible, frequently made it nigh on impossible for the prosecutors to link particular deaths to specific defendants.

As a consequence, the prosecution relied on a notion of aiding and abetting, or accomplice liability, in federal criminal law. According to this doctrine, if five associates take someone into a dark alley and beat her to death, the government need not prove who landed the fatal blow. Otherwise, each of the defendants could point to their associates as creating a reasonable doubt that they did it, meaning perversely, that everybody would walk. By extrapolation to the Blackwater trial, if a defendant even opened fire that day, he shared responsibility for the harm in its terrible totality.

For a range of reasons, however, that application of the doctrine proved awkward in this case, and probably explained why deliberations took so long.

In response, the defense argued that “every man is responsible for his own shots”, which was a powerful slogan given its intuitive appeal and when the prosecution couldn’t prove where each of the literally hundreds of shots came from or ended up. In addition, the prosecution raised the possibility that, with respect to the attack on the white Kia at least, some shooting took place in self-defense that day. This, they claimed, was true even if the attack as a whole was excessive. And finally, the defense blamed everything on Jeremy Ridgeway, that Blackwater guard who has already pled guilty to similar charges for putting down “suppression fire” that day, saying that everything excessive was attributable to him and him only.

Why, after all, should anyone spend the remainder of their days behind bars just because one of their teammates went berserk? That’s guilt by association.

Apparently, the jury struggled with the dilemma. On the one hand, the federal criminal law governing aiding and abetting seemed to treat just firing as sufficient to inculpate the shooter for all criminality that day, regardless of where the shots ended up. On the other, a doctrine of this breadth could very well lead to a conviction of a Blackwater guard who was entirely innocent of the crimes alleged. Such was the jury’s apprehension, that towards the end of their deliberations, they formally asked the judge how the law of aiding and abetting might apply. We include one of their notes to the judge below:

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By reaffirming the federal standard, the judge paved the way for the numerous convictions that followed. In the next few paragraphs, we provide a short overview of how this standard applied to the three defendants charged with aiding and abetting.

Both Jeremy Ridgeway and his former team member Mark Mealy testified that they saw Dustin Heard firing his M240 South of the circle. Allegedly, Heard later told team member Matt Murphy that he shot a grenade during the incident and, according to Jeremy Ridgeway, he also said that he “smoked” a man wearing a dishdasha. A 5.56 mm casing from Heard’s M-4 was found at the scene. In the context of the broad notion of aiding and abetting, this type of evidence was sufficient to assign responsibility to Dustin Heard for the full extent of the offending at Nisour Square, even though he was an otherwise exemplary soldier and seemingly one of the least culpable of his colleagues.

Evan Liberty met with a similar fate, although his character was questioned in far stronger terms during the trial. There was considerable evidence about Liberty throwing water bottles at civilians in an overly-aggressive, mean-spirited manner prior to this Nisour Square incident, and allegedly, he once shot over 1000 rounds during a single incident. When asked why he had fired so much that day, he apparently replied: “when other people on the team are shooting, just shoot at something.” The implication was that Nisour Square was a repeat of the same misguided practice.

On the day of this incident at Nisour Square, Liberty was driving the Blackwater Bearcat. Jimmy Watson testified that he opened Liberty’s door and fired, and that Liberty shouldered his M-4 and fired out the door as well. In a mistake that helped prove the case against him, Liberty named his ammunition magazines and left one at the scene. Once the photo below was revealed, he worriedly discussed how to explain this away with colleagues, but his initial attempt to redescribe the word “Liberty” as a reference to American values was entirely unsuccessful. The photo was damning:

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After the event, Liberty also allegedly told Ridgeway that he had “pulled a Gray 55” at Nisour Square, referencing a past incident where he had put his M-4 on his lap and shot out a driver’s door portal without even looking. Although the defense vehemently denied this whole idea of a “Gray 55” (by attacking Ridgeway’s credibility and pointing to his vested interest in continuing to lie at trial), the totality of the evidence combined with the broad notion of aiding and abetting probably led to Liberty’s conviction—he too shared responsibility for the full extent of his team’s offending.

As for Paul Slough, many members of Raven 23 saw him shoot southwards from his single turret throughout the incident. During its closing, the prosecution drew on an analogy with a one-armed bandit, saying that a prosecutor always dreams of a defendant who had a clear distinguishing characteristic like a missing arm. According to the prosecution, Paul Slough was so easily identified because he was the only up gunner in a single turret vehicle. The highlighted section of the court’s transcripts below illustrate the government’s argument (note that Slatten should read Slough):

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On this basis, Paul Slough too was implicated in the vast majority of the offending that day. For all of these reasons, one suspects that this notion of aiding and abetting may feature within appellate litigation as this case moves forward.

2. MEJA: Vital Jurisdictional Hook or Morally Irrelevant Technicality?

The privatization of military service, especially during the Iraq conflict, created real concerns that members of private military companies were operating in a legal vacuum. In the year 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA) that gave federal courts jurisdiction over felonies committed by persons “employed by or accompanying the armed forces” overseas. In 2004, Congress amended MEJA to include contractors working for other agencies, “to the extent such employment relates to supporting the mission of the Department of Defense.” The problem in this trial was that Blackwater was formally contracted to the Department of State.

There were several aspects of this issue that were very interesting at trial. First, the question whether Blackwater’s work “relate[d] to supporting” the mission of the Department of Defense was deemed a question of fact for the jury. As we mentioned in our initial post about this case, this meant that the whole trial proceeded even though it was unclear whether the court had jurisdiction over the accused at all. Both sides made detailed arguments about why this mission was or was not “relate[d] to supporting” the Department of Defense, but the first fascinating implication was that the jury could have entered acquittals at the end of the trial on the basis of jurisdiction alone, for reasons completely unrelated to the defendant’s guilt or innocence. While the jurisdictional question is fact bound and therefore legitimately before the jury, other systems would front-load this question to prevent a formally innocent accused sitting through a lengthy trial if the court had no ability to enter a conviction.

So, how did the prosecution get around the fact that formally speaking, Blackwater was working for the wrong branch of government? To start, it told the jury that the requirement was exceptionally broad, and didn’t even require Blackwater to actually assist the Department of Defense:

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To establish this requirement, the prosecution argued that both the Department of State and the Department of Defense were working together on the larger goal of security in Iraq: “To put it another way, we were all on the same team. It’s one team. It’s one mission.” The Prosecution also called many senior members of the U.S. Army who testified that Blackwater contractors coordinated with them on certain missions, helped with training and emergency situations, and provided personal security to diplomats, which allowed the Army to focus on other missions.

Evidently, this line of reasoning convinced the jury, at least in part one suspects, because these technicalities are morally irrelevant. Having sat through evidence of children being shot in the head of the back seat of their family car, dismissing the case on these grounds would probably be emotionally difficult. Still, it’s worth noting the powers they disagreed with in reaching that conclusion.

During the trial, the defense called Gordon England, the former Deputy Secretary of Defense, who testified that the formal position of Department of Defense was that, at the time of the shooting, Blackwater contractors were supporting the Department of State mission only. According to England, the Department of State did not cooperate with the Department of Defense, and while the Department of Defense occasionally helped the Department of State, the inverse was not true.

Although a federal prosecutor assured us that they’d brought several dozen cases on the basis of MEJA prior to the Blackwater trial (many of which, according to our source, resulted in plea agreements rather than trials), the Blackwater trial is undeniably the most important application of this jurisdictional provision. With the defense already intimating that it will appeal these convictions on the basis of jurisdiction, this too may prove to be just the beginning of a much wider set of legal questions this case engenders.

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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.