Guest blogged by Ernest A. Canning

On Friday, a three judge panel of the U.S. Circuit Court of Appeal in D.C. reinstated a criminal case against four of five Blackwater (now known as “Xe”) mercenaries who had been indicted for voluntary manslaughter in connection with the Nov. 16, 2007 massacre of Iraqi civilians in Nisur Square.

The five guards, as reported by Reuters, were originally “charged with 14 counts of manslaughter, 20 counts of attempt to commit manslaughter and one weapons violation count over a Baghdad shooting that outraged Iraqis and strained ties between the two countries.” The decision by the appellate court panel was unanimous and seen as “a victory to the U.S. Justice Department in a high-profile prosecution dating to 2008.”

The five had been part of a 23 member Blackwater team known as Raven 23 who “submitted sworn written statements to the State Department using a form that included a guarantee that the statement and…evidence derived therefrom would not be used in a criminal proceeding against the signer,” the court stated in its redacted opinion.

The District Court dismissed the case on the grounds that the government had failed to prove that the evidence it was relying upon was not derived or affected by the immunized statements. The Court of Appeal ruled that the District court had erred by treating all of the evidence as tainted instead of conducting an independent, line-by-line analysis as to whether the evidence was independently obtained from other sources, including Iraqis present at the massacre, noting “when armed guards shoot a number of people in a crowd, it doesn’t take Hercule Poirot to start wondering what the crowd was doing.”

While criminal proceedings continue against these four, low-level former Blackwater mercenaries, Blackwater and its founder Erik Prince are not amongst the accused — this despite the never resolved, explosive allegations, discussed in our Aug. 10, 2009 article, “Blackwater = Murder, Inc.” that the company and its founder had engaged in “murder, destruction of evidence, weapons smuggling” and other sordid crimes…

UPDATE to ‘Blackwater = Murder, Inc.’

The allegations we discussed in August of 2009 — separate from the manslaughter cases now re-instated, as mentioned above — were directed at Prince and other members of Blackwater management. They arose not by way of indictment but by way of sworn affidavits that were submitted in the case of Albazzaz v. Prince, a federal civil action brought under the Alien Tort Claims Act (ATF) by the families of three Iraqis who were “killed when Blackwater personnel opened fire on a crowd of Iraqi civilians in and around Al Watahba Square in Baghdad on September 9, 2007.”

The case, which was filed in U.S. District Court for the Eastern Virginia, was subsequently consolidated with four other cases, entailing 65 plaintiffs, 45 Iraqi nationals and the estates of 19 deceased Iraqis who were allegedly shot or beaten by Blackwater mercenaries.

Links to pertinent pleadings, motions and rulings are available here in PDF format.

Blackwater filed separate motions trying on the one hand to substitute the U.S. as a party, contending that the “shooters” should be considered U.S. government employees and therefore the U.S. should assume any liability for Blackwater’s actions. In a separate motion to dismiss, Blackwater urged that the ATF does not recognize claims of war crimes or summary executions; that ATF is limited to state actors and cannot be applied to corporations, that plaintiffs had failed to allege sufficient facts to support a cause of action under the ATF and that the plaintiffs had failed to exhaust remedies in Iraqi courts.

In a 56 page, Oct. 21, 2009 opinion [PDF] the court rejected Blackwater’s claims that the ATF does not apply to war crimes or that it was limited to crimes committed by states and could not be applied to corporations. The court regarded the argument that remedies in Iraq had not been exhausted as absurd, since, under orders imposed by the Coalition Provision Authority at the outset of the conflict, Blackwater and its mercenaries were immune from liability in Iraqi courts.

The one area where the existing complaints were found deficient is that the plaintiffs were required to demonstrate that war crimes “not only occurred in the context of an armed conflict but must be in furtherance of the conflict.” The court granted leave to amend the complaints in four of the cases, but denied it in a fifth, where it was not possible to show that the death of a former Iraqi vice president’s security guard was “in furtherance of the conflict,” because the widow had previously alleged that the security guard was shot by an intoxicated Blackwater mercenary for “no apparent reason.”

In an Oct. 28, 2009 first amended complaint [PDF], plaintiffs alleged that Blackwater principals, Prince, Gary Jackson, and Bill Matthews, had conspired to kill Iraqis out of “greed and religious beliefs,” citing racist remarks and Prince’s statement about a “crusade”; that the three “expressly authorized Blackwater personnel to kill and seriously injure innocent Iraqis”; that “Prince personally authorized the use of…Little Bird helicopters for…’night hunting’ of Iraqis…Prince and Gary Jackson personally traveled repeatedly to Iraq to oversee these murders of innocent Iraqis.”

The amended complaint alleged that there existed an atmosphere of impunity inside Blackwater; that “when one Blackwater employee questioned executive Mike Rush about the illegalities involved in smuggling…weapons…Rush responded, ‘You fucking idiot, we are at war and we are going to do whatever it takes. If it means moving weapons in there outside of some of these stupid laws, do it.” The complaint went on to allege that Blackwater employees who bragged about killing Iraqis were promoted and the company purchased hollow-point bullets that were designed to inflict maximum damage on Iraqi victims. “The illegal weaponry and ammunition kept Blackwater’s private army…fully armed and able to kill innocent civilians.”

The amended complaint also alleges that Blackwater paid a series of bribes to Iraqi officials.

A short time after the amended complaint was filed, the parties settled, and on Jan. 6, 2010, Albazzaz v. Prince was dismissed. The Center for Constitutional Rights, which represented the plaintiffs in the Albazzaz case, did not disclose the terms of the settlement.

One year later, the Washington Post reported that a “company closely associated with…Blackwater…won a new State Department contract worth more than $84 million over five years.”

The firm, according to an unnamed State Department official, no longer has a relationship with Blackwater/Xe, though both “are headquartered in tiny Moyock, N.C., formerly headquarters of Blackwater and Xe Services,” according to WaPo’s intelligence reporter Jeff Stein.

The case, re-instated on Friday against the four Blackwater guards — Paul Slough, Evan Liberty, Dustin Heard, and Donald Ball — will now be sent back to U.S. District Judge Ricardo Urbina, who was found to have improperly dismissed the charges originally in December 2009. Charges against the fifth guard, Nicholas Slatten, have been dismissed by prosecutors. A sixth guard had pleaded guilty to charges of voluntary manslaughter and attempt to commit manslaughter, and agreed to cooperate with prosecutors.

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).