Justice Dept. Moves Toward Charges Against Contractors in Iraq Shooting
By Del Quentin Wilber and Karen DeYoung
Washington Post Staff Writers
Sunday, August 17, 2008; A01
Federal prosecutors have sent target letters to six Blackwater Worldwide security guards involved in a September shooting that left 17 Iraqi civilians dead, indicating a high likelihood the Justice Department will seek to indict at least some of the men, according to three sources close to the case.
The guards, all former U.S. military personnel, were working as security contractors for the State Department, assigned to protect U.S. diplomats and other non-military officials in Iraq. The shooting occurred when their convoy arrived at a busy square in central Baghdad and guards tried to stop traffic.
An Iraqi government investigation concluded that the security contractors fired without provocation. Blackwater has said its personnel acted in self-defense.
The sources said that any charges against the guards would likely be brought under the Military Extraterritorial Jurisdiction Act, which has previously been used to prosecute only the cases referred to the Justice Department by the Defense Department for crimes committed by military personnel and contractors overseas. Legal experts have questioned whether contractors working for the State Department can be prosecuted under its provisions.
The sources cautioned that prosecutors are still weighing evidence gathered in a 10-month investigation that began shortly after the shootings. A federal grand jury has heard testimony from about three dozen witnesses since November, including U.S. and Blackwater officials and Iraqis, according to two of the sources.
Target letters, often considered a prelude to indictment, offer suspects the opportunity to contest evidence brought before the grand jury and give their own version of events. The letters were sent this summer, although the sources, who agreed to discuss the case only on the condition of anonymity because of its sensitivity, said a final decision on whether to indict may not be made until October, about a year after the incident.
The U.S. attorney's office in Washington and the Justice Department's National Security Division are leading the investigation. Channing Phillips, a spokesman for the U.S. attorney's office, declined to comment, as did Justice Department spokesman Dean Boyd. A spokeswoman for the FBI's Washington field office, which investigated the shooting on the ground in Iraq in the weeks after the incident, also declined to comment.
Anne E. Tyrell, a spokeswoman for North Carolina-based Blackwater, said that the company believes the guards fired their weapons "in response to a hostile threat" and is monitoring the investigation closely.
"If it is determined that an individual acted improperly, Blackwater would support holding that person accountable," Tyrell said in a statement. "But at this stage, without being able to review evidence collected in an ongoing investigation, we will not prejudge the actions of any individual. The company is cooperating fully with ongoing investigations and believes that accountability is important."
Earlier reports on the investigation indicated that the FBI had focused on three Blackwater guards among a larger but unknown number present at the time of the Sept. 16 incident in Baghdad's Nisoor Square. None has been publicly identified, and authorities did not say which six received the target letters.
The shooting, and the perceived failure to hold anyone accountable for it, has fueled congressional dissatisfaction with the government's use of private security contractors in a combat zone. Contractors working for the Defense Department are now explicitly liable for crimes under laws covering the military, but several efforts in Congress to extend that jurisdiction to State Department contractors have failed.
The incident also angered Iraqi political leaders. U.S. contractors have been exempt from Iraqi law under a decree imposed by the U.S. occupation administration in 2003.
Seeking to respond to widespread fury among Iraqis over the Nisoor Square incident, the government of Prime Minister Nouri al-Maliki insisted in negotiations over a new bilateral security agreement with the United States that all contractors come under Iraqi legal jurisdiction. Facing pressure to finalize an agreement by the end of the year, the Bush administration agreed to meet the Iraqi demand, according to officials close to the discussions. But the administration continues to insist on immunity from Iraqi law for military and official Defense Department personnel, the officials said.
Blackwater is one of three U.S. security firms under contract with the State Department to provide personal security in Iraq. The State Department in May extended Blackwater's contract for another year, saying that while the case was still under investigation it had no enforceable cause to cancel it.
Lawyers for the Blackwater guards have argued in ongoing discussions with prosecutors that the Military Extraterritorial Jurisdiction Act, known as MEJA, can be applied only to contractors working for the Defense Department, two sources said. That position appeared to be buttressed by the Congressional Budget Office, which said in a report on contractors in Iraq released last week that MEJA "does not apply to civilians working . . . for federal departments or agencies other than DOD [the Department of Defense]."
Legislative proposals to extend MEJA's provisions beyond the Defense Department -- which have been repeatedly opposed by the White House -- have made the same point.
But the question has never been tested in court. Some outside legal experts said that prosecutors would be able to make a compelling argument that MEJA covers Blackwater guards involved in the shooting under a 2005 amendment that expanded MEJA's provisions to include contractors "supporting the mission of the Department of Defense."
"You are dealing with a military environment," said Scott Silliman, a law professor at Duke University who specializes in national security matters. "If the contractors were not there, those State Department folks would be guarded by the military. Prosecutors could argue to the judge that those facts fit within the definition of furthering the [Defense Department] mission in Iraq."
Among other possible complications in potential legal action against the Blackwater contractors are interviews some of the guards gave to officials from the State Department's Bureau of Diplomatic Security immediately after the incident. The interviews were conducted under legal protections against self-incrimination granted to government employees, and the guards were informed that they could not be used by FBI investigators or in a potential prosecution.
Several former prosecutors and defense attorneys said that the government would have a difficult time proving the case even if it overcame the jurisdictional question. They noted the hurdles facing prosecutors in domestic police shooting cases, adding that such cases are exceedingly hard to win.
Trying to convince jurors that guards committed a crime by opening fire in a war zone "makes it an exponentially tougher case to prove" than a bad police shooting, said George Parry, a former federal and state prosecutor in Pennsylvania who handled law enforcement shootings as a prosecutor and defense attorney. Parry does not represent anyone in the Blackwater matter.
The former prosecutors and defense attorneys said defense lawyers would work hard to put jurors inside the war zone and portray the guards as having to make split-second decisions in an environment where insurgents dress like civilians and attacks could occur anywhere, at any moment. Witnesses in such situations also often contradict each other, and evidence gathered in Baghdad may not meet the same forensic standards that jurors are used to seeing in the United States, the lawyers said.
The Nisoor Square incident took place on a Tuesday afternoon. A Blackwater team arrived in several vehicles at the intersection -- accounts differ as to why they were there -- and tried to stop traffic. Shooting erupted, leaving numerous Iraqis dead and wounded. Blackwater officials have said the guards came under fire; investigations by the U.S. military and the Iraqi government -- and initial findings by the FBI -- concluded that no one fired except the contractors.Defense Spooks: Let's Control Enemy Minds
Forget performance-enhancing drugs for soldiers, the next frontier is performance-degrading drugs for our enemies. Rick Weiss at the Science Progress blog has just written a nice post about a just-released 150-page report from the National Research Council and the Defense Intelligence Agency that argues that the military needs to do a better job keeping up with neuroscience: in part so it can learn how to make our enemies stupider.
“Although conflict has many aspects, one that warfighters and policy makers often talk about is the motivation to fight, which undoubtedly has its origins in the brain and is reflected in peripheral neurophysiological processes," quotes Weiss from the report. “So one question would be, ‘How can we disrupt the enemy’s motivation to fight?’ Other questions raised by controlling the mind: ‘How can we make people trust us more?’ ‘What if we could help the brain to remove fear or pain?’ ‘Is there a way to make the enemy obey our commands?’… As cognitive neuroscience and related technologies become more pervasive, using technology for nefarious purposes becomes easier.”
By Jumah al Dossari
Sunday, August 17, 2008; B04
I've covered the U.S. detention facility at Guantanamo Bay, Cuba, since 2004 as military correspondent for The Post. Jumah al Dossari first caught my attention in October 2005, when I heard the story of his gruesome suicide attempt during a visit from his lawyer. Then known as Detainee #261, Dossari clearly was making a public plea for help. Though the U.S. military has said many times that all detainees at Guantanamo are treated humanely and that Dossari had been getting the help he needed, detention in Guantanamo apparently became more than he could bear. His wish to die humanized the desperation of many detainees held indefinitely at the facility.
U.S. officials maintained for years that Dossari was a dangerous terrorist who had been arrested after going to Afghanistan to fight with the Taliban against U.S. forces. Dossari also spent some time in the United States and allegedly tried to recruit terrorists with fiery sermons, something that obviously raised concerns among his interrogators and jailers. Nevertheless, he was never charged with a crime, never admitted any connection to terrorism and was ultimately released to Saudi Arabia in July 2007.
His return to freedom has been smooth. He is employed, married and doing well. When I talked to him by cellphone from Dammam late last year, he spoke of a hope and a peace and a forgiveness that arose from his "black days" behind bars at Guantanamo.
-- Josh White
DAMMAM, Saudi Arabia
It has been a little over a year since I left the U.S. military prison at Guantanamo Bay, Cuba, but I still have trouble sleeping sometimes. On a recent restless night, I found a DVD entitled "United 93" beside the family television set. I had no idea what it was about, but I started watching. When I realized that it was about the hijacked American plane that had crashed in Pennsylvania on Sept. 11, 2001, I began to cry. It reminded me of a very simple question I had asked myself countless times during my 5 1/2 years in Guantanamo: When will humans start treating each other with respect, whatever our religion or color?
I arrived in Guantanamo in January 2002 after Pakistani forces handed me over to the United States, probably, I suspect, for a bounty. I had been in Afghanistan to assess the progress of a mosque-building project there, funded by people in my native Saudi Arabia. I knew that Afghanistan was a dangerous place, but I was paid for the trip and I needed the money, so I went. It is a decision I will always regret. When the U.S. began bombing Afghanistan in November 2001, I fled to Pakistan. At a border checkpoint, I asked Pakistani guards for help getting to the Saudi embassy. Instead, they put me in a prison, where I was kept for days with shackles on my legs.
After several weeks, I was blindfolded and flown with other detainees to a U.S. military base in Kandahar, Afghanistan. Upon our arrival there, we were thrown to the ground. Someone hit my head and forced his boot into my mouth. Despite the freezing Afghan winter, I spent several weeks in an open tent circled with barbed wire. I still have scars from my time in Kandahar. One is from a cigarette that was extinguished on my wrist and the other from the time I was pushed to a floor covered with broken glass.
One night about two weeks after our arrival, some soldiers came and cut off my clothes and put me in an orange suit. They fitted me with very tight goggles so that I could not see and put something over my ears so that I could not hear. I was chained to the floor of a plane for several hours, then again to the floor of another for what seemed like an eternity. When they pulled us off the second plane, we had no idea where we were.
It was Guantanamo.
We were taken to Camp X-Ray, which consists of cages of the sort that would normally hold animals. Imprisoned in these cages, we were forbidden to move and sometimes forbidden to pray. Later, the guards allowed us to pray and even to turn around, but whenever new detainees arrived, we were again prohibited from doing anything but sitting still.
Physical brutality was not uncommon during those first years at Guantanamo. In Camp X-Ray, several soldiers once beat me so badly that I spent three days in intensive care. My face and body were still swollen and covered in bruises when I left the hospital. During one interrogation, my questioner, apparently dissatisfied with my answers, slammed my head against the table. During others, I was shackled to the floor for hours.
In later years, such physical assaults subsided, but they were replaced by something more painful: I was deprived of human contact. For several months, the military held me in solitary confinement after a suicide attempt. I had no clothes other than a pair of shorts and no bed but a dirty plastic mat. The air conditioner was on 24 hours a day; the cell's cold metal walls made it feel as though I was living inside a freezer. There was no faucet, so I had to use the water in the toilet for drinking and washing.
I was transferred to the maximum-security Camp Five in May 2004. There I lived -- if that word can be used -- in a cell with cement walls. I was permitted to exercise once or twice a week; otherwise, I was alone in my cell at all times. I had nothing to occupy my mind except a Koran and some censored letters from my family. Interrogators told me that I would live like that for 50 years.
While I was in Camp Five, the military gave me a piece of paper that laid out the allegations against me. I had been in Guantanamo at that point for 2 1/2 years. My lawyer later told me that I had received this paper as a result of a U.S. Supreme Court ruling that detainees were to be allowed to have court hearings. We never got the promised hearings; instead, we went through military hearings at Guantanamo in which we were not shown any evidence or allowed to have lawyers. All we got was the piece of paper.
Some of the allegations were silly. One said that I had gone to Afghanistan for military training in 1989. The truth was that I had told an interrogator about a trip I had made to Afghanistan for a weekend as an overweight 16-year old after the war with the Soviet Union there ended. This trip was sponsored by the Saudi government, which had helped fund the Afghan mujaheddin and was celebrating -- with the United States -- the defeat of the Soviets.
Only one of the allegations seemed to be directly related to what is called the "War on Terror." It said that I had been "present at Tora Bora." No other details were provided. I had never heard of Tora Bora (although I later learned that it was Osama bin Laden's suspected hiding place, where U.S. forces battled the Taliban in December 2001). Later, I learned that a Yemeni detainee had told interrogators that I had been there, along with many others, because he hoped to be released if he was seen as cooperating with the U.S. military.
I know that there have been newspaper stories saying that I recruited people to go to al-Qaeda training camps. But the sheet of paper the military gave me said nothing about recruiting, which is not something I have ever done.
There were many times in Guantanamo when I felt as though I was falling apart, like a sandcastle being washed out by the tide. I lost all hope and faith. The purpose of Guantanamo is to destroy people, and I was destroyed. I decided that I preferred death to life, and I attempted suicide several times.
Once, during a break in a meeting with my attorney, I cut my arm with a razor and tried to hang myself. I do not remember it, but apparently my attorney returned earlier than I had told him to and found me suspended by my neck from the cell wall, unconscious and covered in blood. I broke a vertebra but survived with surgery.
Between suicide attempts, I tried desperately to hold on to the few fleeting moments of light that presented themselves to me. I met every few months with my attorneys and felt better whenever they were in Guantanamo, but my despair would return within a day of their departure. On occasion, I was helped by compassionate guards. After the beating in Camp X-Ray, a young female guard appeared at my cage, looking to make sure that no other guards were watching. "I'm sorry for what happened to you," she whispered to me. "You're a human being just like us." These words were a temporary balm for my bruises and loneliness. Ultimately, though, I believe it was God who did not allow me to die.
In July 2007, a colonel told me that I was going home. He did not explain why I was suddenly no longer too dangerous to live in freedom. Four days later, I was put on a Saudi government plane. When we landed in Riyadh and I saw my family, I was overwhelmed. We all cried and hugged. I said hello to someone I thought was my sister only to hear her say, "Daddy." I looked at her face again and saw that it was my daughter, who had grown from a 7-year-old child to a 13-year-old young woman while I'd been gone.
In Guantanamo, I was very angry with the people who had decided to hold me thousands of miles from home without charging or trying me. I was very angry with the people who kept me in isolation even when I was at my most desperate. I was very angry about having no rights at all. I was not angry with Americans in general and I even drew comfort from some, such as my lawyers and the kind soldier. But I could scarcely comprehend how U.S. policy had allowed me to be treated as I had been.
On the plane ride home, though, I decided that I would have to forgive to go on with my life. I also know that Sept. 11 was a great tragedy that caused some people to do dark things that they would not otherwise do. This knowledge helped me forget my miserable existence in Guantanamo and open my heart to life again, including to my recent re-marriage.
When I was watching "United 93," I thought of the soldier who had offered me compassion in Guantanamo. Her words reminded me that we all share common values, and only by holding on to them can we ensure that there is mercy and brotherhood in the world. After more than five years in Guantanamo, I can think of nothing more important.
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