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

Court	United States District Court for the District of Columbia, United States
Case number	08-0360 (RMU)
Decision title	Memorandum Opinion
Decision date	31 December 2009
Parties	United States of America Paul A. Slough Evan S. Liberty Dustin L. Heard Donald W. Ball Nicholas A. Slatten
Other names	Blackwater 5
Categories	Human rights violations
Keywords	Blackwater, Iraq, manslaughter, PMC, private contractors
Links	Memorandum Opinion

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 government employees. They stated that it was self-defence, but were charged with manslaughter.

They alleged they had 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 that the rights of the defendants have been inexcusably breached. It dismissed the charges against the defendants.

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 US 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.

Related developments

On 22 April 2011, the Court of Appeals overturned the District Court’s judgement. The Supreme Court refused to dismiss the charges, after which criminal proceedings continued.

Legally relevant facts

Defendants were Blackwater 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 twenty 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’ (pp. 3-4). 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 (pp. 7-8). Written statement pursuant this form were made on 18 September 2007. Subsequently, these statements were leaked to the media.

Core legal questions

Whether the defendants were compelled to testify by the government;
Whether the evidence used by the prosecution had a legitimate source wholly independent of the compelled testimony.

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).

Court's holding and analysis

The Court held that it followed from case law (most importantly Garrity and Kastigar) that “if a criminal defendant . . . demonstrates that she was compelled to testify by her government employer, ‘the government must show that any evidence used or derived has a legitimate source wholly independent of the compelled testimony.’” The Court held that several statements were compelled. The defendants believed that they would lose their jobs if they would not make a statement and, according to the Court, they had reason to believe that this would be the case (pp. 33-46). Also, the government failed to meet the burden of proof that they had not used compelled statements by the defendants. Witness statements were tainted, according to the Court, as they had learned about the contents of the compelled witness statements in the media (pp. 52-54, 66, 70 and 74-75). Also, the compelled testimonies played an important role in the decision to prosecute several defendants (pp. 78, 81 and 84-85) and had influenced the search for physical evidence (pp. 87-88). Since these breaches of the defendants’ rights cannot be regarded as ‘harmless errors’ (p. 89), the indictment against all defendants was dismissed.