State Defends Immunity Deal for Blackwater Guards

Since news broke yesterday that the State Department had offered immunity deals to the Blackwater guards involved in the September 16th Nisour Square shooting, which left seventeen Iraqis dead, inquiries from Democrats have mounted, and the State Department has evidently been scrambling to respond.

And it’s evident what their response is: at least we didn’t offer absolute, blanket immunity to the guards from prosecution. As part of the PR offensive, two “senior State officials” stressed just that point to CNN earlier today. But the AP, which broke the story, never reported any such thing.

The type of immunity offered the guards was “use” immunity, meaning that the guards were offered the ability to talk with the promise that their statements couldn’t be used in a criminal prosecution. ABC got a hold of the statements today and confirms this.

So State Department spokesman Sean McCormack tried to look on the bright side in a press briefing:

“The kinds of, quote, ‘immunity’ that I’ve seen reported in the press would not preclude a successful criminal prosecution,” he insisted.

“The Department of State cannot immunize an individual from federal criminal prosecution,” he added.

There are a couple of problems with that, however.

While State certainly doesn’t have the ability to absolutely bar a criminal investigation, they also didn’t have the authority to offer the “use” immunity officials offered the guards, as The New York Times, citing “government officials,” reported this morning.

And while the Department’s choice to offer immunity certainly “cannot immunize an individual from federal prosecution,” it makes things a lot harder for FBI agents and Justice Department lawyers who are trying to build an already incredibly difficult case. As the AP put it today:

The immunity deal will not prevent the Blackwater guards from ever being prosecuted. However, it forces prosecutors to prove that they did not use the information gleaned from the bodyguards’ statements — or anything related to them — when seeking criminal charges. That means investigators will have to find other credible witnesses or evidence to make their case.

It remains unclear who was responsible for authorizing the immunity deal. A “senior State Department official” whispered to ABC that “If anyone gave such immunity it was done so without consulting senior leadership at State.” The AP gave a hint yesterday when it reported that last week’s resignation of Assistant Secretary of State Richard Griffin was “directly related to his oversight of Blackwater contractors.”

The inquiries, unfortunately for State, have only just begun. Today House oversight committee chair Henry Waxman (D-CA) sent a list of questions to Secretary of State Condoleezza Rice about the immunity deal, calling it “an egregious misjudgment.”

Ed.Note: Thanks to all the TPM legal eagle readers who wrote in with their takes on this.

Update: ABC adds a cautionary note to all this, noting the difficulty Blackwater’s lawless position offers prosecutors:

Even without immunity, however, it would be extremely difficult to prosecute the Blackwater security guards in U.S. courts.

Shortly after the Sept. 16 Blackwater incident, Secretary Rice dispatched a panel of experts to Iraq to examine the use of private security contractors.

The panel’s report, drafted by Ambassador Patrick Kennedy, concluded that even if a private security guard committed cold-blooded murder, there may be no legal basis for prosecuting the guard in U.S. courts under current law.

“The panel is unaware of any basis for holding non-Department of Defense contractors accountable under U.S. law,” the report concluded.