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(Source picture: Expose the War Profiteers)

(Source picture: Expose the War Profiteers)

United States of America v. Paul A. Slough, et al.

Court United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number No. 10-3006
Decision title Appeal from the United States District Court for the District of Columbia
Decision date 22 April 2011
Parties
  • United States of America
  • Paul A. Slough
  • Nicholas A. Slatten
  • Evan S. Liberty
  • Dustin L. Heard
  • Donald W. Ball
Other names
  • Blackwater 5
Categories Human rights violations
Keywords accountability, Blackwater, Iraq, manslaughter, PMC, private contractors
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Summary

In September 2007, 14 Iraqi civilians were killed and 20 wounded by employees of Blackwater, a private security company hired by the US to protect its government employees. They stated that it was self-defence, but were charged with manslaughter.

They alleged they made statements under pressure (as they were threatened to be fired if they would not do so). Under US law, these statements are ‘compelled’ and can therefore not be used in criminal proceedings. As these statements appeared in the press, both the prosecution team and witnesses were influenced by them. Therefore, the Court ruled, the rights of the defendants have been inexcusably breached. It dismissed the charges against the defendants.

The Court of Appeals did not agree and stated that the District Court should have been more specific when it branded the evidence against the defendants as ‘tainted’. It held that, for example, witness statements should have been subjected to a part by part examination to determine which parts were tainted. These statements should not have been ‘thrown out’ entirely, according to the Court of Appeals. 

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Procedural history

After the defendants got involved in a shooting incident in Iraq on 16 September 2007, a grand jury indicted five men, charging them with voluntary manslaughter and weapons violations on 4 December 2008.

In several pre-trial hearings, the defendants held that the government had made use of compelled statements. On 8 September 2009, the Court determined that these compelled statements should not have been used but that the defendants had laid a firm foundation that these testimonies had been used in the investigation and prosecution of the case. After the hearing on this matter commenced, the government filed a motion to dismiss claims against defendant Slatten without prejudice, conceding that the defendant’s rights had not been sufficiently safeguarded in relation to the compelled statements. Slatten cross-moved for dismissal of the claims against him with prejudice, claiming that there was not sufficient untainted evidence to support an indictment. Also, he alleged that there had been prosecutorial  misconduct in obtaining the indictment. The other defendants filed a motion to dismiss as well, alleging prosecutorial misconduct.

The District Court granted this motion on 31 December 2009. The US appealed.

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Related developments

The Supreme Court refused to dismiss the charges, after which criminal proceedings continued.  

The Blackwater case sparked a discussion in the United States regarding the extension of criminal jurisdiction to Non-Defense Department contractors. This debate finally led to the introduction of the Civilian Extraterritorial Jurisdiction Act (“CEJA”), which was enacted to clarify en extend criminal jurisdiction to these contractors.

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Legally relevant facts

The Defendants were Blackwater Company security guards who provided security services to US government employees operating in Iraq. On 16 September 2007, the defendants, being part of a Tactical Support Team, responded to a message that an explosion had taken place in the vicinity of a compound in which US officials were meeting with Iraqi officials.  The team’s convoy subsequently took up position in traffic circle Nisur Square to secure the evacuation route for American officials. Shortly after, a shooting incident erupted during which the defendants allegedly shot and killed 14 persons and wounded 20 others.

The government contended that the victims were unarmed civilians who where the victim of unprovoked violence by the defendants. The defendants claimed that they came under attack by insurgents and that their actions ‘constituted a legitimate response to a mortal threat (Memorandum Opinion, pp. 2-3).

They were questioned about the events several times and submitted a ‘sworn statement’ form. This form stated that employees had to make a statement or face termination, but that this statement could not be used in a subsequent criminal prosecution (Memorandum Opinion, pp. 3-4). Written statement pursuant this form were made on 18 September 2007. Subsequently, these statements were leaked to the media (Memorandum Opinion, p. 5)

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Core legal questions

  • Were the defendants’ compelled statements erroneously used by the government?

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Specific legal rules and provisions

  • Paragraphs 2, 924(c), 1112, 1113 and 3261(a)(1) of Title 18 of the US Code (Crimes and Criminal Procedure).

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Court's holding and analysis

The Court of Appeals held that in analyzing whether the evidence, both physical evidence and witness statements before the indicting grand jury had been ‘tainted’, the District Court made a ‘number of systemic errors based on a erroneous legal analysis’ (p. 8).

Firstly, the Court held that the District Court should not have ‘lumped’ witness statements and should not have excluded them in their entirety when at the most only some portion of the content was tainted (p. 8). Secondly, the Court held that the District Court erred by failing to conduct a proper independent-source analysis (p. 10). It failed to distinguish between sources which were ‘tainted’ and which were not. Thirdly, it held that the wrong legal standard had been applied when the Court excluded a witness’ journal and testimony, because the news reports, based on the compelled statements, were a cause, only one, for writing his journal (p. 12). Lastly, the Court held that the District Court should not have lumped the indictments in holding that all indictments were tainted (p. 13).

The Court concluded that, on remand, the Court should determine, as to each defendant, what evidence—if any— was tainted (p. 17).  

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Further analysis

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Instruments cited

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Additional materials

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