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If you have "no place to go," come here!

Congratulations! Your immunity has been pre-approved!

If you're Blackwater, that is. ABC:

The wording of the immunity is included at the beginning of the Blackwater guards' sworn statements, which have been obtained by ABC News.

In each of the statements, the guards begin by saying "I understand this statement is being given in furtherance of an official administrative inquiry," and that, "I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001."

The immunity deal was granted in the immediate aftermath of the shooting by State Department officials in Iraq who were under intense pressure to quickly explain what happened in the face of allegations by Iraqi officials that the contractors murdered civilians in cold blood.

Not a bad deal. This is my favorite part, though:

News of the immunity deal caught State Department officials in Washington off guard.

Why? After Scooter and the telcos, I would have thought the immunity for lawbreakers was standard operating procedure under Bush. Plus, this is State, so it's Condi, and you know she shared the whole deal with Inerrant Boy during pillow talk.

Hey, here's an idea: Why don't we save ourselves a lot of grief, and pre-approve immunity for the entire Republican Partei?

NOTE This story seems to update this CNN story. The immmunity looks pretty "blanket" to me. As All Spin Zone remarks:

There was a reason why Secretary of State Condoleeza Rice’s investigators preceded the FBI into Iraq. It’s now pretty obvious why. Blackwater has a U.S. government-issued license to kill.

Beyond the obvious implications of this story, we now have an obstruction of justice angle, conspiracy to obstruct justice, and a coverup of a war crime. Secretary Rice should be hauled before congress tomorrow, and impeachment proceedings against her should begin immediately. This goes well past incompetence, into the realm of the criminal.

If Blackwater can get away with a massacre in Iraq, be afraid. Be very damn afraid. Because if they can get away with it there, they can get away with it here.

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bringiton's picture
Submitted by bringiton on

Surprise at State is not a frequent occurrence? State under Bush is seemingly surprised at just about everything, in this case about Constitutional law which is, well, not surprising.

In spite of the screaming headlines, this isn’t blanket immunity from prosecution, not at all. It is a common and routine occurrence called "Garrity warnings" and "Kalkines warnings," a limited form of use immunity and in actuality a good thing for everyone involved especially the investigators – here’s why:

A citizen does not give up their constitutional rights just because they become a government employee; they keep the right to refuse to give self-incriminating testimony and we all agree on that, yes? On the other hand, the government has extraordinary coercive power over its employees, more so than over citizens who are not, because the employee’s job, or pay rate, or future advancement can be used directly as a coercive instrument to compel self-incriminating testimony.

Under Garrity and Kalkines the employee can be compelled to give truthful testimony with the restriction that the information given cannot be used to prosecute or punish the employee. It can be used to prosecute others, and if the employee lies then they can be prosecuted for perjury and in that case their Garrity/Kalkines statement can be used in evidence for the perjury charge alone.

This is beneficial to prosecutors because the employee cannot then hide in silence behind the 5th Amendment, but rather must comply with the terms of employment which universally obligate all government employees to co-operation with any and all criminal investigations. The government thereby receives needed information in the most expeditious way possible.

Pursuing prosecution against the employee requires finding sufficient evidence from other sources, supposedly independently, but the information provided through direct testimony will inevitably get passed around and makes the investigation a lot easier than it would be otherwise.

scarshapedstar's picture
Submitted by scarshapedstar on

Hell, they're not even Blackwater employees. They're independent contractors.

Right? (nudge, nudge, wink, wink)

But I still believe
And I will rise up with fists!!

Submitted by lambert on

See TPM here.

We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan

chicago dyke's picture
Submitted by chicago dyke on

children? that's really the only important question here. because we know that blackwater has slaughtered at least a few of them, probably quite a few, just as we know that in truth, there is no iraqi government or legal system with the power to hold murderers responsible. you've been paying attention to the occupation's "progress," yes? how many people have been kidnapped, murdered and tortured in iraq? and how many of the criminals responsible have been put in jail? right.

so spare me your legalese, your justifications, and most of all, your foolish belief that in Iraq, or here, there is a "rule of law" for murderous republicans who kill (brown, nonchristian) women and children for no reason (as if there ever is). as the TPM link demonstrates, this is more parsing and "is is-ing" from the beltway imperialists, who will spin any matter that reflects badly upon themselves as some kind of "special" case that mere mortals like us can't understand.

even for you, this is a new low. defending murderers who will never see the inside of a courtroom, let alone a jail? that's pathetic.

Sarah's picture
Submitted by Sarah on

unfortunately.

Here's the deal: just like under the UCMJ some of your rights were, ahem, a little different than out here in the civilian world, in certain fedgov (or contractors thereunto) jobs, your rights are, ahem, a little different.

You can of course interpret this as a get-outa-jail-free card.
It's not.
It works the same way civilian-life DAs work, 'turning and burning' an informant to make a case.

Does it, often, mean somebody gets away with stuff?
Absolutely.
Is it worth that, to stop the bosses getting away with more?
Lemme tell ya: HELL YES I'D LET SCOOTER WALK if I could turn him on Big-Time and Dim Son. In a half a heartbeat.
Scooter will get his, otherwhere and otherwhen, and if he's like the vast run of people who make deals with DAs,
he'll get himself in trouble again too. That Dim Son walked him out to keep his mouth shut, though, pisses me right the hell off -- and it should you, too.

What bringiton is saying is that when you need to take out a corrupt organization (or cure a systemic infection) you sometimes need to develop weapons and evidence sufficient to ensure the slam stays dunked, and sometimes the mechanics of that aren't just ugly, they're disgusting.

I know you know this.
I know you see this around you in Chicago.
I know you saw it, and I think it's what sent you running screaming, in DC.
Fitzmas has to happen, sometime.

chicago dyke's picture
Submitted by chicago dyke on

for you and bringiton, should any of these murderers actually end up in a jail cell. until then, consider me unduly shrill and unreasonable, in wanting murderers to to directly to jail, and not caring so much about how they get there. i'm stupid and simple like that.

bringiton's picture
Submitted by bringiton on

Even for me. Didn't make that 24 hour goal, damn, and I did try. The comment I submitted above is actually good news, please listen. I made no defense of any crime, nor of the damn invasion and occupation, nor of the use of independent contractor slash mercenaries nor of any abuses by them or by anyone else. Didn't say that, don't believe that.

But I do know a thing or two about this sort of immunity. It provides the investigators with more information than what they would get if the employees were just read their Miranda rights and they lawyered up, as is their right. That's a good thing. The business at TPM about investigators having to dig up evidence independent of the emmployees statements is true, but that would also be true if the employees said nothing so big whoop, meaningless point. This immunity does not impede the investigation, it greatly facilitates; it is a strong investigatory tool and a big advantage for the investigators.

Now surely you aren't arguing that these people ought to be presumed guilty and we should just go straight to the sentencing? Hope not. Even the most heinous criminal is deserving of a fair process. If we disagree on that, well then, we'll just damn well disagree.

Nothing I said was supportive of malicious criminal behavior; I do not, regardless of the skin color of victims. What I do support is the rule of law and due process, for all people, and a deliberate approach to getting at the truth of what happened in this and other similar instances. The limited use immunity proceedure is routine, for all government empoyees at all levels including contractors, for any investigation. The results this immunity process provides are a plus for getting at that truth, and their use speaks to the professionalism and competence of the front line investigators which is also a good thing.

Will the higher-ups bury this investigation? May well be, they're a criminal cabal and they will likely want to do that. Is this grant of limited use immunity going to be of any benefit to those higher-ups in any conspiracy to coverup? Nope. Makes it harder to pull off, actually.

Here I thought you all would be pleased to know that at least the first steps had been done by the book and in a manner that maximizes the possibility of successful prosecution. Perhaps I'm just not able to make the matter sufficiently clear.

If you have a critique of my argument - as different from an attack on my character - I'd love to read it. For the record I don't appreciate being called an apologist for murderers because I support competent investigatory practices and the rule of law.

Submitted by lambert on

I would find bringiton's safeguards argument plausible; also Sarah's argument that the little guys should be turned, in order to get the big guys. Alas, as we all know, Scooter skated (as did Ollie North, for that matter).

But we deal with the insanity we have, and what we have is a mercenary army, outside any rule of law (CPA Rule 17) except possibly their contracts, with a chain of command that runs up to State, and thence to Bush. In other words, the chain of command is mercs to Condi, to Bush. Condi's not known for competence, and she's especially not known for administrative competence. But she is the loyal Bushie par excellence.

So, my confidence level that what, in chain of command terms, amounts to Bush's personal, private army will be held to account by using these forms of immunity would approach zero if it were not already an extremely negative number.

Think about it. Their typical modus operandi, their playbook, is to blame incidents like this on the "bad apples." They didn't do that here. Instead, they granted the bad apples immunity. Why would that be? Because the "bad apples" have leverage over their higherups, I would think. Hmmm...

So, in that context, I have to say that I find the remarks of TPMs commenter compelling:

You know you're getting bamboozled when the reassuring statement is so carefully worded.

However, any suggestion that the Blackwater employees in question have been given immunity from federal criminal prosecution is inaccurate.

The immunity the employees reportedly got is not "immunity from federal prosecution" (also known as "transactional immunity") it's what prosecutors call "use immunity" (or "use and fruits immunity"). There is a difference that is important in a court proceeding that makes the DOJ statement technically correct, but as a practical matter if the Blackwater folks got use immunity, there is virtually no chance they will be tried or convicted for any crime. If they did get that kind of immunity, then prosecutors would theoretically be able to indict, but they would then have to prove that every piece of evidence used in the prosecution was obtained completely independent of the employees' statements. Especially in DC federal courts, where the Ollie North case produced an extreme version of that doctrine, that's pretty much an impossible task -- the prosecutors would also have to show that none of their witnesses had heard what the employees said in their immunized statements.

The State Department had no authority to give the employees "immunity from federal prosecution," but it's a much thornier question whether a promise not to use statements is also beyond their authority -- or whether it's any less binding on DOJ than the usual "use immunity."

Bottom line: DOJ's statement is a very careful bamboozle. Don't be fooled.

It's a scam. All this talk about flavors of immunity is Shystee's process dodge.

We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan

bringiton's picture
Submitted by bringiton on

Every right thing might be a cover for something wrong.
Every shadow is a threat.
Every promise is a lie.
Everyone in government is corrupt.
They’re all coming to get us.

I don’t believe that. I believe that most people, most of the time, try to do the right thing. In the specific case cited in the original post, what the investigators did was follow standard procedures. They did the right thing. Follow my link above and you will see how common this procedure is.

I already countered the TPM posting above; it is erroneous in both content and conclusion. It is precisely because these employees may be at prosecutorial risk that the specific immunity procedures were beneficial for investigators. The Blackwater folk get to have their 5th Amendment protection (equal protection for all, even the poeple we loath, yes?) AND they are forced to truthfully tell all they know to the investigators. Come time for prosecution, DOJ will have to show evidence just as they always do – the only thing excluded from prosecuting a specific individual is their compelled statement itself.

Maybe BushCo will fry the small fish and skate themselves; maybe everyone will walk; neither would surprise me but right this moment I just don’t know and neither does anyone else. Maybe absolutely everyone in government are darkly evil pod-people in lock-step control under some VRWC master command, but I really truly doubt it. The assertion Lambert, and many others, made was that the specific use immunity employed by the first line investigators was part of a cover-up. My response is no, that couldn’t possibly be, because it compelled the employees to tell what they knew - truthfully and completely - and to do so in writing. Any time information gets put into writing the risk of disclosure is substantially heightened and the ability to keep a lid on it greatly diminished. A top-to-bottom cover-up would have had them lawyered up and silent.

Summary: The Iraq invasion and occupation suck. BushCo sucks. Blackwater sucks. Murder sucks. Withal, these investigators did the right thing – sometimes, that happens.

Submitted by lambert on

Too many straw men for me to deal with.

Got a link for your views on immunity?

We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan

Sarah's picture
Submitted by Sarah on

any different than what Fitzgerald did, working Rove against Cheney in the Plame case?

I don't understand your logic.

And for what it's worth, I do see what you're saying about chain of command. Condi is the cutout here.

NOTHING in the Constitution says she can't be indicted, convicted, and imprisoned for treason. A good US Attorney would be looking at the evidence to back up those charges, maybe even presenting to a grand jury somewhere, NOW.

She's running a standing military -- a paid mercenary force -- outside the authority of any Constitutional branch of government empowered to do so even in an emergency, and given that Blackwater mercs patrolled US streets after Katrina, and Blackwater mercs have attacked US armed forces members in Iraq (and maybe Afghanistan too, altho I haven't researched that) she isn't just giving aid and comfort: she's raising, sustaining and protecting an ARMED ENEMY.

bringiton's picture
Submitted by bringiton on

Straw men? No idea what that might mean in this context. Think of me as somewhat slow, the kid on the little bike peddling as fast as I can trying to keep up with everyone else here, and speak to me slowly; use small words and short sentences, and please try to avoid vague allusions because I just won’t be able to understand. If there’s a Straw Man – or Men - in what I’ve said, please point it out, just pick the ugliest one, and I’ll expand/explain/flesh out whatever. Otherwise, claiming “straw men” is just a failure to engage on the substance.

Provide a link? More than the one I already provided above? Please read this piece written by a defense attorney reviewing Garrity and Kalkines warnings.

Here’s another one:

Your Right to Remain Silent, Does It Apply?

Often, in the midst of an investigation, federal agents will provide the target employee with Garrity/Kalkines or Miranda warnings during an interview. Miranda warnings, used in a criminal investigation, guarantee your right to remain silent, but warn you that what you say may be used against you in a criminal prosecution. They also guarantee you the right to have an attorney present during the investigation interview.

If the investigation does not involve a criminal allegation, but administrative employee misconduct instead, the government should provide the subject employee with a Garrity/Kalkines warning. The Garrity/Kalkines warning is the exact opposite of Miranda. It states that you must answer the investigators’ questions truthfully, but are immune from criminal prosecution based upon your answers, unless you do not tell the truth.”

So what a clever investigator does in these circumstances is to make a formal declaration that the scumbag subject is not currently the object of a criminal inquiry. The predicate for the inquiry is simply procedural, of course; only want to know if policies were followed, you understand, no worries, all you have to do is tell us everything that happened, all the facts, truthfully and under penalty of perjury and no, actually, you can’t have an attorney present. That’s what these investigators did.

Here’s the exact wording of the warning and immunity via ABC News, who claim to have the complete statements:

”In each of the statements, the guards begin by saying ‘I understand this statement is being given in furtherance of an official administrative inquiry,’ and that, ‘I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001.’

Sometime later, perhaps, depending, a different investigator may determine - based on independently gathered information, to be sure – that the scumbag subject is an object of criminal inquiry and Miranda comes into play. But if you think that the information in the original Garrity/Kalkines statement remains secret, that there is absolutely no crosstalk, that investigators don’t chat off the record about what they know, well, I have a bridge in Bangor you might want to buy.

Using Garrity/Kalkines rather than Miranda was the correct procedural move, opens up much more in the way of investigatory scope, and makes it much more difficult to put together a cover-up. Leaking the written statements to news agencies for publication makes it possible for everyone to read what the employees had to say for themselves. BushCo will of course end up focused on who leaked the statements rather than who shot Iraqi civilians but that’s just the BushCo playbook.

The bigger issue around prosecution, and an appropriate focus for tar and feathering sharply worded statements of outrage is this from the same ABC story:

“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.”

Will the Dark Creatures Who Dwell In The Swamp try to cover their own asses? Probably. But these investigators, by every account I can find and by right of reason alone, did their job as they are supposed to do. That is at least a glimmer that there are people still in government who take their jobs seriously and are trying to do the right thing. That was my only point here; bewildering why it should draw such vituperation.

Sarah's picture
Submitted by Sarah on

"material witness" -- and if you refuse to cooperate after being so named, you become a hostile material witness, which means it's assumed you lied/withheld evidence.

I still think there's grounds to charge Condi with treason for being in charge of paid mercs attacking US forces and US citizens.

Just repeatin'.

bringiton's picture
Submitted by bringiton on

for when Condi returns to the Hoover and moves back in with her secret lesbian lover close, close lady friend roommate. Idea is that every time she's spotted in public, on the street, in Niemen-Marcus, in a restaurant, wherever, we unknown persons are planning to point and laugh, and laugh, and laugh. Public ridicule, maybe not as satisfying as a treason trial but costs much less and the result is a form of house arrest without all the inconvenient legal niceties.

It’s the little things in life that make me smile.

Submitted by lambert on

So much for Civility, but then, that died the death a long, long time ago....

We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan