October 30, 2007

In Blackwater: "a potentially serious investigative misstep that could complicate efforts to prosecute."

The NYT is reporting that State Department officials investigating the Blackwater incident offered immunity — limited-use — that only the prosecutors at the Justice Department have the authority to give.

Here's the WaPo version of the same story.

I'm not an expert in this area of law. If you are, I encourage you to comment here.

27 comments:

B said...

It appears there is an urgent need to educate the American public on exactly who in this country is able to grant immunity and who is not.

B said...

Anyone else get the feeling from the Times version that the Gray Lady is more frustrated than the WaPost that none of the American contractors has been convicted and sentenced yet?

do said...

If memory serves me, wasn't the basis of Ollie North's conviction being overturned the limited use immunity issue? Will this not be the root issue if prosecution is sought?

In simpliest terms,the decision that must be made is to whether or not to advise the Blackwater parties who were told they would receive limited use immunity by State that it is either valid or not. If it is valid then it is a subtraction problem: take all the statements given under immunity and line them up against all evidence gathered, subtract the immune answers and if what is left is enough then a case can be brought.

If the immunity is ruled invalid, then seal those files and start from scratch. But the fundemental decision to be made is the recognition of the validity of the limited use immunity that has been granted.

I also note the Blackwater initial reaction stating that, in effect, we have broken no law. That is factually correct as Blackwater employees do not operate under any law as per terms of their contract.

After the validity of immunity issue is decided, would it not be a second line of defense to see if the government can take part in a contract that grants immunity (in effect) for crimes not yet commited..a blank check.

MadisonMan said...

I'm shocked -- shocked! I tell you -- that someone in the present administration didn't follow rules.

Bruce Hayden said...

I frankly don't see how the government can now tell them that, oh well, State wasn't authorized to give the immunity, so we will just use all that stuff against you. You may have given it believing you had immunity, but only Justice can give it, so ha ha.

Zach said...

Count me as confused, as well. The right not to give incriminating testimony is not contractual. But the testimony was offered as part of a contract, in return for immunity. They were not being witnesses "against themselves." How could it be used in a trial if the immunity grant was invalid? Wouldn't the defendent have an awfully good case for excluding the testimony? Isn't that, in fact, pretty close to the exact meaning of the fifth amendment?

save_the_rustbelt said...

Since when did the Bush administration start worrying about the law?

Erik Prince is well connected to very big GOP money. End of story.

Zach said...

It's also worth some skepticism of the claim that the investigators didn't have the authority to make an immunity deal. I'm assuming here that there exists somewhere a signed contract granting immunity in return for testimony. If such a contract exists, it implies that somebody drew it up who had good reason to believe it was valid. Apparently there now exists someone in Justice who disputes that validity, but I would hardly take it on faith.

Fen said...

I'm shocked -- shocked! I tell you -- that someone in the present administration didn't follow rules.

Wish you had read the Wapo article before knee-jerking into BDS: 1) Rice has turned investigation over to FBI to avoid any conflict of interest and, 2) another team has been sent to Iraq to ensure investigation is independent and 3) US Military investigation has concluded Blackwater peeps were unprovoked.

There are interesting issues of law here regarding merc ops. Sullying the thread with the usual BDS tripe is unfortunate.

MadisonMan said...

Fen, my opinion is that there are many many people in the Government who believe they can do what they want, and that there will be no consequences. That what the law says doesn't matter, and if you don't know the law, why even bother looking it up? That kind of thinking starts at the top. You can call it BDS, but I think you are wearing blinders. I'll call it BBS.

TROBlog said...

I frankly don't see how the government can now tell them that, oh well, State wasn't authorized to give the immunity, so we will just use all that stuff against you. You may have given it believing you had immunity, but only Justice can give it, so ha ha.

Having had quite a bit of experience in this area I can say that State offering limited immunity is going to kill any federal prosecution. Perfect example is an criminal investigator from a non-DOJ agency offering it during a subject interview and getting a confession in return. No way the statement would even be admissable much less get a jury to convict if it was. The defense would have a field day.

Since when did the Bush administration start worrying about the law?

Since when has State been a part of the Bush Administration? The old-guard liberal FSOs there are hardly Bush fans.

Fen said...

MadisonMan: Fen, my opinion is that there are many many people in the Government who believe they can do what they want, and that there will be no consequences.

Agreed, but you might as well claim that a fed who's been in DOL for 20 years is part of the Bush administration. I think State screwed up, but that doesn't mean you should turn it into a partisan issue. Your better than that, and I'm surprised that you of all people went there.

Fen said...

troblog: Having had quite a bit of experience in this area I can say that State offering limited immunity is going to kill any federal prosecution.

Did State have the authority to offer limited immunity? ie., is it legal and/or ethical? Where's the meat of the "scandal" here, if any?

Eli Blake said...

Fen:

I think is that what TROblog is saying is that 1. State DID NOT have the right to offer immunity, but that 2. whether the offer was made in sincerity or not, to prosecute anyone based on what they told would come perilously close to 'tricking' someone into confessing.

For example, suppose that I find my lawn mower in my neighbor's yard. I ask him about it, and I promise him (either verbally or in writing) that I won't press charges if he admits to me that he removed it from my property. So he admits stealing it from my yard. If I then go to the police and tell them he confessed (or even give them a videotape of him confessing) then neither my statement about what he told me nor the videotape could be used in court because they were obtained under false pretenses.

In the Blackwater case, the State Department officials were not pretending to be anything other than State Department officials but they still obtained whatever evidence they have under false pretenses, so I would think it would be inadmissible.

Fen said...

Thank you Eli.

Why did State believe they had the right to offer immmunity? Were they acting in good faith or being sneaky?

MadisonMan said...

Why are you assuming that the people who offered the immunity are long-term employees of the State Department?

TROBlog said...

Why are you assuming that the people who offered the immunity are long-term employees of the State Department?

Why is anyone assuming that State offered the immunity because of Bush? No, don't answer, I know that one already.

I don't know who offered the immunity. Neither does anyone else at this point. What I do know is that there are plenty of senior FSOs in State who are not Bush people and who have done nothing but fight his foreign policy decisions in their own little back-channel ways.

Are the two connected? Who knows? But it is just as good a theory as saying they offered immunity because the Bush Administration loves to break laws.

Luckyoldson said...

B said..."Anyone else get the feeling from the Times version that the Gray Lady is more frustrated than the WaPost that none of the American contractors has been convicted and sentenced yet?

Well, I certainly understand your immediate slam at anything you don't want to hear, but as far as I know, no one has even been charged yet, and regardless of who is or is not behind any such offer...I think the first question to be asked is this:

Why was immunity offered in the first place?

What kind of message does this send to the world; that we provide cover for suspected crimes, even before they are officially charged?

Too many jims said...

Here's the solution. Extradite them to Iraq. They have a perfectly fine criminal justice and court system there.

Luckyoldson said...

According to the latest news reports, it's now being referred to as "limited immunity," whatever that means.

Regardless, a State Department spokesperson says any form of immunity creates a problem for prosecutors.

B said...

Luckyoldson,
I don't think I've ever said this before, but here goes:

I completely agree with your last 2 comments.

MadisonMan said...

loves to break laws.

I would use the term flout. Or ignore.

MadisonMan said...

Rules, that is, not necessarily laws.

Luckyoldson said...

B said..."I completely agree with your last 2 comments."

Well, that's wonderfl, but don't be bugging me about getting together for any BBQ's or political soirees...Fen & Pogo already have me booked for for the next month or so...and we'll have to see if I make it through the waterboarding.

TROBlog said...

loves to break laws.

I would use the term flout. Or ignore.

Rules, that is, not necessarily laws.


Well, I agree, he and every other President, loves to flout laws that they do not think are legal in regard to their Constitutional authority.

And as you pointed out there is a difference between laws and rules.

Frankly, I am not sure any of either were broken here just yet. It appears that State applied legal protections given to federal employees in administrative investigations to contractors. That appears to been a mistake but probably not illegal. And I bet there wasn't even a rule for or against doing so. But I could be wrong on that.

Richard Dolan said...

The immunity issue is interesting but not, I think, difficult. The article talks about a grant of limited immunity, which usually refers to "use immunity," meaning that nothing you say or anything derived from it can be used against you in a criminal proceeding; and is distinguished from "transactional immunity," meaning that you can't be prosecuted for anything disclosed in the immunized testimony. Use immunity is the norm in federal criminal proceedings; some states (NY is one of them) retain transactional immunity in some circumstances.

A grant of use immunity is sufficient, in the normal case, to allow the Gov't to force a witness to testify, since the 5th Amend only protects you from providing testimony that may tend to incriminate you. With a grant of use immunity, it can't be used against you criminally, and thus can't "tend to incriminate" in any legally relevant sense. As teh SCOTUS has said, the grant of immunity is coextensive with the Constitutional right, and thus a witness granted use immunity can be compelled to testify.

Grants of immunity in the federal system come in two flavors: statutory grants pursuant to 18 USC 6001-6005, and informal agreements governed by principles of contract law. Basically, Sec. 6002 says that if a witness declines to testify or provide information to a federal court or grand jury, a federal agency, or Congress, the "person presiding" may inform the witness that an order pursuant to 6002 granting use immunity has been issued, at which point the witness's Fifth Amend privilege is at an end. Section 6004 governs grants of immunnity "called to testify before an agency of the United States (which pursuant to Sec 6001 includes any "executive department" of the Gov't). Sec 6004 provides that the agency may, "with the approval of the Attorney General," issue an immunity order under Sec 6002. This case does not seem to involve any issue of statutory immunity.

As for informal immunity, the cases suggest that any promise of immunity by the State Dep't investigators would be unenforceable. US v. Flemmi, 225 F.3d 78 (1st Cir. 2000), surveys the cases, and holds that a promise of use immunity by FBI agents was unenforceable against the Gov't. The court noted that doctrines of apparent authority and estoppel don't apply against the Gov't, and thus the dispositive issue was whether the FBI agents had actual authority to make a promise of use immunity. In answering that question in the negative, the First Circuit said that "the power to investigate does not necessarily encompass (or even reasonably imply) the power to grant use immunity." Id. at 87. Even less do State Dep't investigators have "the power to grant use immunity."

So, if the Blackwater guys are relying on a promise of "use immunity" by some State Dep't guy, they are in trouble. Whether the issue will ever surface is doubtful, given the many other and far more serious problems that the Gov't would face, beginning with whether anything these civilians did in Iraq could possibly have violated some US criminal statute.

TROBlog said...

So, if the Blackwater guys are relying on a promise of "use immunity" by some State Dep't guy, they are in trouble. Whether the issue will ever surface is doubtful, given the many other and far more serious problems that the Gov't would face, beginning with whether anything these civilians did in Iraq could possibly have violated some US criminal statute.

Would be a jury killer too if they found out about it I think.