Tuesday, October 30, 2007

Latest Twist in the Blackwater Saga: Immunity for the Shooters?

There seem to be two competing versions of today's story about Blackwater and the "immunity" its employees received for the September shooting incident in Baghdad. In one version, the bumbling State Department stupidly granted immunity to the Blackwater cowboys and now because of that screw-up those mercenaries might escape justice for their crimes. In the other version, those Machiavellian passive-aggressives at the State Department deliberately sabotaged the FBI's investigation in order to protect their Blackwater henchman while maintaining deniability.

Critics and commentators were having so much fun that almost no one noticed that no immunity from prosecution had, in fact, been granted. See the New York Times story here: "A Justice Department spokesman, Dean Boyd, said in a statement that Blackwater employees could be prosecuted despite the immunity deals, which were not authorized by federal prosecutors. He said that neither the Justice Department nor the F.B.I. could discuss the case, but said "any suggestion that the Blackwater employees in question have been given immunity from federal criminal prosecution is inaccurate."
What the Blackwater operators received from Diplomatic Security officials in Baghdad was a so-called "Garrity" statement, a common practice in internal police or security investigations when an employee is mandated to make a statement in connection with an on-the-job incident. Since the employee is compelled to make the statement on pain of being fired, it can't be used against him later without violating his Constitutional right against self incrimination, as recognized in the Garrity vs. New Jersey court decision, among others.

The "Garrity" statement doesn't prevent the employee from being prosecuted, however, the prosecutor can't use the statement or anything resulting from it. Here's an example of a Garrity statement, courtesy of a local Virginia police organization:

"On ___________(date) ___________(time) at _____________(place) I was ordered to submit this report (give this statement) by _____________________(name & rank). I submit this report (give this statement) at his order as a condition of my employment. In view of possible job forfeiture, I have no alternative but to abide by this order."

"It is my belief and understanding that the department requires this report (statement) solely and exclusively for internal purposes and will not release it to any other agency. It is my further belief that this report (statement) will not and cannot be used against me in any subsequent proceedings. I authorize release of this report to my attorney or designated union representative."

"I retain the right to amend or change this statement upon reflection to correct any unintended mistake without subjecting myself to a charge of untruthfulness."

"For any and all other purposes, I hereby reserve my constitutional right to remain silent under the FIFTH and FOURTEENTH AMENDMENTS to the UNITED STATES CONSTITUTION and any other rights PRESCRIBED by law. Further, I rely specifically upon the protection afforded me under the doctrines set forth in Garrity v. New Jersey, 385 U.S. 493 (1967), and Spevack v. Klien, 385 U.S. 551 (1956), should this report (statement) be used for any other purpose of whatsoever kind or description."

My guess is that prosecution will not be possible, but that will be due to a lack of evidence, principally a lack of witnesses who can be brought to the U.S. and cross-examined in court. The "Garrity" statements will have nothing to do with it. Nonetheless, State and Diplomatic Security will get a certain amount of unfair blame.

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