Before Blackwater case crumbled, internal legal debate played out at DOJ over evidence

Before Blackwater case failed, legal debate at DOJ

WASHINGTON — As the U.S. investigated Blackwater Worldwide contractors for a deadly 2007 shooting in Baghdad, a legal debate was playing out behind the scenes at the Justice Department between two veteran prosecutors. One urged caution. The other aggressively pushed the case forward.

The disagreement foreshadowed problems that in December led a judge to dismiss manslaughter charges against five contractors who fired machine guns and grenades into a busy intersection. The dismissal outraged Iraqis and sent the Obama administration scrambling to repair a case that is all but in ruins.

In dismissing the case, U.S. District Judge Ricardo Urbina said prosecutors ignored the advice of senior Justice Department officials and built their case on sworn statements that had been given under a promise of immunity. Documents unsealed Tuesday in response to a request by The Associated Press and The Washington Post paint the clearest picture yet of how the case prosecution went awry.

Immediately after the Sept. 16, 2007, shooting, Blackwater contractors told State Department investigators what happened. Two days later, the security gave written statements under a promise that nothing they said could be used against them in a criminal case.

Because of that deal, prosecutors had to make sure they didn’t use the written statements to build their case. It was unclear, however whether prosecutors could use the Sept. 16 interviews.

Ken Kohl, the lead prosecutor, believed he could. And he thought Raymond Hulser agreed.

Hulser is among the Justice Department’s experts on Garrity V. New Jersey, the Supreme Court case that spells out how to deal with these kinds of immunity deals. Hulser did not agree with Kohl.

“I think that we agreed that there was an issue regarding the Sept. 16, the earlier statements,” Hulser testified in one of several closed-door hearing last year that ultimately persuaded Urbina to dismiss the case. “My view was that the risk was such that they shouldn’t take it. His view was that they had a good chance of arguing the other way.”

Hulser repeatedly tried to warn Kohl that building the investigation on those interviews could jeopardize the case.

“We’ve got an uphill battle on this Garrity issue, and the burden of proof is ours, so we need to be particularly cautious,” Hulser wrote in an e-mail to Michael Mullaney, who served as the middle man between Hulser and Kohl.

The Justice Department installed Mullaney as a middle man as a safeguard to protect tainted evidence from sinking the case. But that structure just made things more confusing, attorneys said in testimony unsealed Friday.

When Mullaney relayed Hulser’s warnings, Kohl said he either didn’t read them or didn’t interpret them the way they were intended. Kohl’s team did use the Sept. 16 statements, a strategy that ultimately helped unravel the prosecution.

Kohl acknowledged that at times his investigation went “close to the line” but said he always thought he had the approval of his supervisors.

In his ruling, Urbina said Kohl simply ignored the warnings. The Justice Departments internal affairs division, the Office of Professional Responsibility, is investigating the Blackwater prosecutors for their handling of the case.

The Justice Department now faces an uphill battle resurrecting the case. Traveling in Iraq earlier this year, Vice President Joe Biden told Iraqi leaders that the U.S. would not give up.

The five guards are Donald Ball, a former Marine from West Valley City, Utah; Dustin Heard, a former Marine from Knoxville, Tenn.; Evan Liberty, a former Marine from Rochester, N.H.; Nick Slatten, a former Army sergeant from Sparta, Tenn., and Paul Slough, an Army veteran from Keller, Texas.

Associated Press writer Pete Yost contributed to this report.