Text of Blackwater Immunity Deal

Members of a private security company pose on the rooftop of a house in Baghdad, Sept. 18, 2007. ABC News has learned details of an immunity deal the State Department granted Blackwater guards involved in a deadly shootout in Iraq that left Iraqi civilians dead.

State Department Grants Immunity to Guards Investigated for Shooting Iraqi Civilians

by JONATHAN KARL and KIRIT RADIA - Oct. 30, 2007

ABC News has learned the exact wording of the immunity deal the State Department granted Blackwater security guards involved in a September shooting incident that left 17 Iraqis dead.

The security guards were given a limited immunity called "use immunity" in exchange for giving sworn statements about their involvement in the Sept. 16 shooting incident.

The wording of the immunity is included at the beginning of the Blackwater guards' sworn statements, which have been obtained by ABC News.

In each of the statements, the guards begin by saying "I understand this statement is being given in furtherance of an official administrative inquiry," and that, "I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001."

The immunity deal was granted in the immediate aftermath of the shooting by State Department officials in Iraq who were under intense pressure to quickly explain what happened in the face of allegations by Iraqi officials that the contractors murdered civilians in cold blood.

News of the immunity deal caught State Department officials in Washington off guard.

"If anyone gave such immunity it was done so without consulting senior leadership at State," a senior State Department official initially told ABC News.

State Department spokesman Sean McCormack would not comment directly on the immunity given to the security guards, but said Secretary of State Condoleezza Rice is determined to hold anybody guilty of wrongdoing accountable.

"Secretary Rice's attitude is that if there are individuals who broke rules, laws or regulations they must be held to account," McCormack told reporters. "Every action that she has taken during the course of the aftermath of this incident has been consistent with that approach."

McCormack refused to discuss the specific shooting and the subsequent investigation. However, he did say that the State Department "would not have asked the FBI and the Department of Justice to get involved in a case that we did not think that they could potentially prosecute."

"The kinds of, quote, 'immunity' that I've seen reported in the press would not preclude a successful criminal prosecution," he insisted.

"The Department of State cannot immunize an individual from federal criminal prosecution," he added.

McCormack refused to answer questions as to whether the type of immunity provided to the Blackwater guards would in fact make prosecution much harder, citing the ongoing investigation.

"The secretary doesn't want us to say anything that would potentially jeopardize an ongoing investigation," he said.

Scope of Immunity Is Limited

The immunity granted to the Blackwater guards is more limited in scope than so-called "transactional immunity" which would prevent any proscution for the alleged crimes. But the immunity granted to the guards means that anything said in the statements -- and anything learned as a result of the statements -- cannot be used by prosecutors.

"It's a nightmare for prosecutors," said legal expert Eugene Fidell.

Even without immunity, however, it would be extremely difficult to prosecute the Blackwater security guards in U.S. courts.

Shortly after the Sept. 16 Blackwater incident, Secretary Rice dispatched a panel of experts to Iraq to examine the use of private security contractors.

The panel's report, drafted by Ambassador Patrick Kennedy, concluded that even if a private security guard committed cold-blooded murder, there may be no legal basis for prosecuting the guard in U.S. courts under current law.

"The panel is unaware of any basis for holding non-Department of Defense contractors accountable under U.S. law," the report concluded.

Blackwater bodyguards promised immunity

Blackwater has said its Sept. 16 convoy was under attack before it opened fire, killing 17 Iraqis. An investigation by the Iraqi government concluded that guards, like the ones shown, were unprovoked.

State Department gave protection to all guards in deadly Iraq incident

Associated Press - Oct 30, 2007

The State Department promised Blackwater USA bodyguards immunity from prosecution in its investigation of last month’s deadly shooting of 17 Iraqi civilians, The Associated Press has learned.

As a result, it will likely be months before the United States can — if ever — bring criminal charges in the case that has infuriated the Iraqi government.

“Once you give immunity, you can’t take it away,” said a senior law enforcement official familiar with the investigation.

A State Department spokesman did not have an immediate comment Monday. Both Justice Department spokesman Dean Boyd and FBI spokesman Rich Kolko declined comment.

FBI agents were returning to Washington late Monday from Baghdad, where they have been trying to collect evidence in the Sept. 16 embassy convoy shooting without using statements from Blackwater employees who were given immunity.

Three senior law enforcement officials said all the Blackwater bodyguards involved — both in the vehicle convoy and in at least two helicopters above — were given the legal protections as investigators from the Bureau of Diplomatic Security sought to find out what happened. The bureau is an arm of the State Department.

Strained relationship with Iraq

The investigative misstep comes in the wake of already-strained relations between the United States and Iraq, which is demanding the right to launch its own prosecution of the Blackwater bodyguards.

Blackwater spokeswoman Anne Tyrrell declined comment about the U.S. investigation. Based in Moyock, N.C., Blackwater USA is the largest private security firm protecting U.S. diplomats in Iraq.

The company has said its Sept. 16 convoy was under attack before it opened fire in west Baghdad’s Nisoor Square, killing 17 Iraqis. A follow-up investigation by the Iraqi government, however, concluded that Blackwater’s men were unprovoked. No witnesses have been found to contradict that finding.

An initial incident report by U.S. Central Command, which oversees military operations in Iraq, also indicated “no enemy activity involved” in the Sept. 16 incident. The report says Blackwater guards were traveling against the flow of traffic through a traffic circle when they “engaged five civilian vehicles with small arms fire” at a distance of 50 meters.

The FBI took over the case early this month, officials said, after prosecutors in the Justice Department’s criminal division realized it could not bring charges against Blackwater guards based on their statements to the Diplomatic Security investigators.

Official: Guards spoke after given protection

Officials said the Blackwater bodyguards spoke only after receiving so-called “Garrity” protections, requiring that their statements only be used internally — and not for criminal prosecutions.

At that point, the Justice Department shifted the investigation to prosecutors in its national security division, sealing the guards’ statements and attempting to build a case based on other evidence from a crime scene that was then already two weeks old.

The FBI has re-interviewed some of the Blackwater employees, and one official said Monday that at least several of them have refused to answer questions, citing their constitutional right to avoid self-incrimination. Any statements that the guards give to the FBI could be used to bring criminal charges.

A second official, however, said that not all the guards have cited their Fifth Amendment right against self-incrimination — leaving open the possibility for future charges. The official declined to elaborate.

Prosecutors will have to prove that any evidence they use in bringing charges against Blackwater employees was uncovered without using the guards’ statements to State Department investigators. They “have to show we got the information independently,” one official said.

Rare move

Garrity protections generally are given to police or other public law enforcement officers, and were extended to the Blackwater guards because they were working on behalf of the U.S. government, one official said. Experts said it’s rare for them to be given to all or even most witnesses — particularly before a suspect is identified.

“You have to be careful,” said Michael Horowitz, a former federal prosecutor in Manhattan and senior Justice Department official. “You have to understand early on who your serious subjects are in the investigation, and avoid giving these people the protections.”

It’s not clear why the Diplomatic Security investigators agreed to give immunity to the bodyguards, or who authorized doing so.

Bureau of Diplomatic Security chief Richard Griffin last week announced his resignation, effective Thursday. Senior State Department officials, speaking on condition of anonymity, have said his departure was directly related to his oversight of Blackwater contractors.

Tyrrell, the Blackwater spokeswoman, said the company was alerted Oct. 2 that FBI would be taking over the investigation from the State Department. She declined further comment.

Government oversight boosted

On Oct. 3, State Department Sean McCormack said the FBI had been called in to assist Diplomatic Security investigators. A day later, he said the FBI had taken over the probe.

“We, internally and in talking with the FBI, had been thinking about the idea of the FBI leading the investigation for a number of different reasons,” McCormack told reporters during an Oct. 4 briefing.

Last week, Secretary of State Condoleezza Rice ordered a series of measures to boost government oversight of the private guards who protect American diplomats in Iraq. They include increased monitoring and explicit rules on when and how they can use deadly force.

Blackwater’s contract with the State Department expires in May and there are questions whether it will remain as the primary contractor for diplomatic bodyguards. Iraqi Prime Minister Nouri al-Maliki has said his Cabinet is drafting legislation that would force the State Department to replace Blackwater with another security company.

Congress also is expected to investigate the shootings, but a House watchdog committee said it has so far held off based on a Justice Department request that lawmakers wait until the FBI concludes its inquiry.