There has been some kinda crazy talk floating around the MSM that State Department investigators somehow conferred immunity on Blackwater mercenaries in the course of questioning them. Without commenting on whether or not the word "immunity" was ever used in any conversation let me tell you that as a matter of law, it would be impossible for that to be true.
You see for statutory immunity to be conferred---YOU NEED A COURT ORDER. Immunity is not some causal thing that you can accidentally or carelessly sprinkle about like pocket lint. It is the result of a formal application by a lawyer for the government that strips a person of their right to refuse to answer questions and compels their testimony, but because of the 5th Amendment right not to self incriminate, prohibits the use of that testimony against the compelled witness.
This is legal process folks. You go to court for this. It isn't a "well maybe I did, maybe I didn't," or a "whoops, I did it again" kind of thing. If someone has statutory immunity, we would all know it, because there would be a court order downloadable from the PACER system (that's the federal court's electronic docket and document management system---you know, where we got all the Plame filings?)
Oh and State couldn't get such an order (not that anyone is contending they did) without Main Justice knowing about it because in order to apply for such an order a government attorney has to get approval from the Assistant Attorney General who deal with their agency:
The Attorney General has designated the Assistant Attorneys General and Deputy Assistant Attorneys General of the Criminal, Antitrust, Civil, Civil Rights, Environmental and Natural Resources, and Tax Divisions to review (and approve or deny) requests for immunity (viz., authorization to seek compulsion orders) in matters assigned to their respective divisions (28 C.F.R. Sec. 0.175), although this approval is still subject to Criminal Division clearance. This authority extends to requests for immunity from administrative agencies under 18 U.S.C. § 6004
Id.
There are even forms to fill out and everything.
Now, there is another type of immunity, which isn't a true immunity at all and is actually a contract between the witness and the government. It is sometimes called "pocket immunity" or "letter immunity" and its variants can include the extremely limited proffer agreement known as a "queen for a day" letter. The testimony given in this context is voluntary and is usually had in connection with a plea agreement or a deferred prosecution agreement.
These are both extensively negotiated and highly formal documents. If any Blackwater criminal suspect had one of these documents, his defense lawyer would certainly know it, having spent many hours working on the draft documents, and have a copy of it to show to reporters. Again, there would not be any confusion in the minds of agents, prosecutors, or defense counsel. There would be a document.
The ONLY POSSIBLE THEORY I can possibly come up with about why there would be ANY confusion about the prosecution status of the Blackwater shooters, would be if the investigators from the State Department either didn't give the defendants the proper warnings or gave the wrong warning:
Kalkines warnings are given when the possibility of criminal prosecution has been removed, usually by a declination to prosecute by the DOJ, and the employee is required to answer questions relating to the performance of his or her official duties or be subject to disciplinary action.
Id.
Clearly, the DOJ had not yet declined prosecution, I cannot conceive of any circumstance involving loss of life via gunfire, why an agent would give a Kalines warning rather than a Garrity or Miranda warning.
Nonetheless, this is not the same as or even a kissing cousin of "immunity." So somebody has been disseminating disinformation to the MAS. I wonder why?
Something else I wonder about? Why Blackwater was illegally exporting gun silencers without a State Department permit?
Login Here
Share This
Spotlight
Ding Dong
1
Yay LHP!
LHP!!
Jane!!!! I hope she is doing well.
Thanks lhp, I was wondering about this.
“Immunity is not some causal thing that you can accidentally or carelessly sprinkle about like pocket lint. “
That image just made my day. ;)
LHP. What I’d like to know is where was the State Department’s General Counsel in all this? It seems as though the modus operandi of this administration is to not bother with passing legal stuff past legally trained specialists. After all, the law is just for little people. We make our own reality.
When is the legal profession going to come out big time against this travesty?
Aren’t silencers produced with the express purpose of keeping murder quiet?
LHP! I read that story about the silencers earlier today. It does make one wonder why they need silencers on protection duty.
Maybe so. But a good defense lawyer would say that their client was promised immunity, so anything divulged under that promise is not admissible. Poison fruits etc.
Now this can be disputed, and perhaps cases can go forward. But it substantially muddies the case, adds time and trouble, and helps all of this fade from the public eye.
Heckuva job Condi!
Would say, Mukasey for example, if he were the AG, be able to make application for immunity?
Blackwater have been bad boys with their “gun running”; exporting suppressors to Iraq is a “no no”.
SWR
OT, but I’m so appalled I have to post about Short Ride’s response to criticism of Kyl-Lieberman (via TPM):
Really, Joe, “ample evidence”? Perhaps you could share some of that with the American people before asking us to believe it. I haven’t heard of any “evidence” other than a dog-and-pony show in Iraq with military briefers who didn’t even want their names used. I would think that after the debacle of the “evidence” for the Iraq War, warmongers would be ashamed to refer to The Big Lie as “evidence,” but of course, Joe has no shame.
You know how you “get over” distrust, Joe? The first step is for the guy you distrust to stop lying to you and deceiving you. Otherwise it’s not called “getting over it.” It’s called “being a sucker.”
The American people have made it pretty damn clear they don’t want any more of that.
LHP,
If I pretend I’m a “defense attorney” for a moment (a real stretch since IANAL at all), would I have a compelling argument in court that my client “believed” the Government when it said my client had “immunity” from prosecution?
What I’m asking is would a Judge “tend” to rule in my client’s favor to toss out any and all evidence related to my client’s “conversation” with investigators?
I am getting too cynical (I blame it mostly on a cold that will not go away) - but all I could think of as I read your post was “I bet there’s some sort of signing statement or executive order floating around that they think covers this”. I hate what’s happened to our country & it makes me really cranky that I thought this for even a second.
The silencers? It’s so Blackwater guys can fell like real men. Macho posturing so they can be more badass than anyone else.
There’s nothing about escorts and personal protection that requires a silencer. If anything, they reduce the effectiveness of the firearm.
They’re probably the last guys you’d choose to go off on a special ops mission for a little close-in wet work. At the very least they’d be bragging the next night down in the bar.
Do we think AG Mukasey could facilitate the President’s political agenda?
Lieberman is a bad lawyer.
They don’t need to follow no stinkin’ laws anymore…they now have Administrative Orders.
I don’t think it muddies the case at all. There either was legally binding immunity conferred, or there wasn’t. The State Department was not (and is not empowered to) doing a criminal investigation, so I don’t even see why any warning had to be given at all.
My guess is that the FBI is going to put together a case that doesn’t use any self-incriminating testimony… and if/when the defense lawyers try to argue “poison fruit”, the FBI can say “even if there was an immunity deal, this isn’t poison fruit — and there was no immunity deal.”
LHP:
Assuming facts not in evidence, namely that anyone in W’s administration acts in accordance with the rule of law.
J’immunity Cricket!
Just to be clear: Is it legally possible and/or likely that Dept of State investigators could have interviewed Blackwater agents involved in the killings, and prior to the interviews, given them verbal or written assurances that none of the statements made in those interviews would be used against the agents in a criminal prosecution?
If so, could these agreements be legally binding on DoJ prosecutors?
It wouldn’t mean they couldn’t be prosecuted; but it would mean the prosecution would have to be based on evidence obtain entirely independent of these interviews.
jon @ 15
In comments section somewhere I read that silencers do things like eliminate the flash that might temporarily blind a coworker at night, and other technical reasons, and that we should not all jump to conclusions.
Hahahahahahaha.
Any one who opposes the Bush Middle East actions is either a communist, a fascist, or a nazi.
AP - President Bush compared Congress’ Democratic leaders Thursday to people who ignored the rise of Lenin and Hitler early in the last century, saying “the world paid a terrible price” then and risks similar consequences for inaction today.
Scarecrow @ 22
IANAL (obviously) but given the propensity of Blackwater folks to play fast and loose with the truth, wouldn’t the lies they (presumably) told under the faux immunity be enough to cancel them anyway?
So…now that Blackwater is under DOD, just who might be a marked target requiring a silencer??? That is the question. It almost sounds like they are planning a “hit”. Hmmmm….they protect diplomats from the Department of State, who they don’t work for anymore…Hmmmm…who do they have access to? What would happen if someone important got bumped? Just random thoughts about this…I think the silencer question is really important. Something stinks; especially, since they didn’t get the permit from….who else…the Department of State.
Thank You LHP!
You just made my day with that.
Someone is obviously trying to pull the wool, as they say.
Not with LooseHeadProp on the case!
Wasn’t it the FBI that investigated them?
Oklahoma kiddo @ 24
My rule: the side of the arguement that mentions Nazis, Hilter or Holocaust first, loses.
let me tell you that as a matter of law, it would be impossible for that to be true
You mean impossible like searches/wiretaps without warrants? Or impossible like ex post facto immunity for past crimes?
When you create your own reality, the ability to create your own law comes with the territory.
Silencers do cut down on noise pollution though.
eCAHNomics @ 29
The eCAHN Rule: the side of the argument that mentions Nazis, Hilter or Holocaust first, loses.
I like it!
LS @ 26
So much of our intel is now contracted out.. Why wouldn’t Blackwater have some spook contracts we don’t know about?
Another thing…
3 shots to the forehead
3 shots to the forehead
3 shots to the forehead
Another thing…
The soldier who found something in the “books” who was found…shot in the head.
So, what do you need silencers for?
What “inaction” is the President talking about exactly?
AP - President Bush compared Congress’ Democratic leaders Thursday to people who ignored the rise of Lenin and Hitler early in the last century, saying “the world paid a terrible price” then and risks similar consequences for inaction today.
Elliot @ 32
Normally I don’t mind, but if you’re going to make a formal rule of it, my name should be spelled correctly.
I’ll also mention that the last time anyone obeyed any rule of mine was: never. That (especially) includes my 26 year old wingnut son.
Eureka Springs @ 34
They have tons of subcontractors…and…Krongard (Buzzy) was #3 in the CIA with Cofer Black who is now Vice Chairman of Blackwater….something covert goin’ on.
eCAHNomics @ 37
Oy vey…my condolences…must make for exciting conversation over Turkey…*g*
Oklahoma kiddo @ 35
The inaction of not starting any wars since they took over Congress.
LS @ 37
And our own congress cannot get the truth even if they actually ask.
What if all of Blackwater is actually CIA?
“I’ll also mention that the last time anyone obeyed any rule of mine was: never. That (especially) includes my 26 year old wingnut son.”
My daughter is even more rad than I am. She reads my comments here and elsewhere, and will not infrequently question me as to why I’m so conservative. Like in “get a grip Papa, be more lib”.
Oklahoma kiddo @ 42
Wingnuts are radical righties. My son really believes you can bring democracy at the point of a gun, and other such fairy tales. Bad parenting, I guess.
LS @ 42
That is perhaps a possibility… if not a probability.
LS @ 38
But here’s the interesting twist: The Reconstruction Operations Centers are themselves outsourced, through a recently renewed $475 million contract to the British firm Aegis. And Aegis is run by the infamous old-school gun-for-hire, Tim Spicer. He’s the guy, you may recall, who tried to use his mercenary army to launch a counter-coup for the government of Sierra Leone; his associate, Simon Mann plotted the overthrow of the authorities in Equatorial Guinea. Later, in Iraq, one of his ex-employees circulated online a rather nasty “trophy video,” in which contractors are seen shooting at civilians — to the sounds of Elvis’ “Runaway Train.”
Kind of like the government has to get a judge to sign a search warrant before a telecom turns over its records of your phone calls. Just saying “don’t worry about it — we’re the government” doesn’t cut it.
Oh, wait a minute . . . someone better tell the director of national intelligence about this newfangled “court order” thingy.
Fast.
eCAHNomics @ 44
Not your fault.
Forms? Court of law? Legal requirements? How cute. How pre-9/11 of you.
If there’s one thing this administration has shown us, it’s that they don’t need to follow the law. It’s pathetic to read people getting upset about this when it’s been happening for 6 years and no one’s stopped them yet.
They don’t need no stinkin’ badges!
Elliott @ 32
Eg, Godwin’s Law?
Sorry my quotes are FU’d
Bob Z @ 49
Pretty much.
SadieSue @ 15 — my thoughts exactly.
We know that these guys try to short-circuit any law or law enforcement process or mechanism that threatens to touch them.
Why not here?
eCAHNomics @ 36
I apologize profusely!
Elliott @ 53
‘pology accepted. That’s the most common misspelling so I’m used to it.
SDS. We need you, my comrades.
OT..
“The Senate voted 64-30 for the bill that aims to provide health insurance to about 10 million children in low-income families unable to afford private insurance but who earn too much for the federal Medicaid program for the poor.”
link
What was the vote the last time? Are the three additional need for over ride out campaigning?
Knut Wicksell @ 7
What LHP wants to know is Where is the State Department IG in all this?
Knut, I am as mystified as you.
As for the legal profession getting up in arms, I’m doing my bit, brother
Oklahoma kiddo @ 8
Yep.n Creepy isn’t it?
LS @ 48
That’s right. Or… is it left? I just got lucky (with my daughter).
jon @ 10
I think that may be what is happening, b/c Justice shifted the case to a differentn unit and is creating a “chinese wall” to prevent those agents and lawyers who have had access to the “tainted” statements from interacting with the agents and lawyers now working the case
LS @ 34
She was from a large Irish family in Massachusetts and she told them to look into it if anything happened to her.
She had a desk job in finance. And she’d found something.
Oklahoma kiddo @ 11
Yes. and he and his top brass are the folks who have to approve the application for immunity if made by some lawyer further down the food chain.. Read the first couple of links, it’s all explained in the US Attorney’s manual
looseheadprop @ 59
Chinese wall? After its been in all the newspapers? Seems like a stretch to me.
She went to Mass nearly every day.
She was found outside of the church with a bullet in the head.
LHP - This ABC Report on Blackwater contains what they purport to be the actual language taken verbatim from the Blackwater statements taken by State Department.
Assuming this is accurate language, it is clearly Garrity derived. there is no question that the “immunity grants” (I agree that is somewhat deceptive, but for the sake of identification will stick with it for now) will NOT preclude criminal prosecution; if prosecution was possible in the first place, which is no given. I will say this much, the actions of State sure didn’t make prosecution any easier; quite the opposite it makes the effort more difficult. Irrespective of that fact, what is absolutely mind boggling is that State gave these Garrity agreements to ALL of the involved Blackwater personnel. That is insane; a couple of them maybe, but all of them? Amazing. There seems to be some evidence that State has been doing this all along, with all shooting investigations of Blackwater, in every incident. My guess is that it is part of their contract, that Blackwater insists on it in order to even have their people talk to State, and that it is a designed policy to further quash any attempt at ever having a criminal prosecution.
lhp! Thank you, thank you! My reaction, on hearing the news reports that “State Dept. had given them immunity” when they answered questions was, umm, WTF?
Followed by, State may have told them they had immunity, but that doesn’t mean they DID have immunity.
I haven’t practiced for awhile, but it did sound passing strange. Do you sppose there is some kind of secret court order somewhere? (or perhaps one is being cooked up as we speak, and back-dated)
Mad Dogs @ 14
If there was an experienced defense lawyer present when it was said? I would not buy a minute of it. It is a defense lawyer’s business to know that these agents can’t offer immunity on their own.
Boston1775 @ 61
IIRC she was shot in her quarters..a suppressed weapon would be useful in that sitruation.
I hope one thing. That is, that President H.R. Clinton takes her special position as an officer of the court extremely seriously. I can ask no more.
p.lukasiak @ 20
That’s my take on it as well. That FBI is not gonna be left holding the bag for the f**k up by State and are going to go WAYYYY above and beyond what the law requires to try to bullet proof (no pun intended) their case
So…Blackwater is now under DOD…under Aegis, which is a British company…
Can we take away their citizenship yet, because if they are actually working for a British firm and pulled guns on US soldiers…Timing is all wrong I know, but still…
WTF is going on!!
Steve-AR @ 68
The news reports in the Boston globe said she was shot outside the chapel in the middle of a secured area.
looseheadprop @ 58
Eliot A. Cohen is the Counselor of the Department, having moved into that office at the end of April. From his bio, there’s lots in the way of military-related experience, but little that would say he’s done much with regard to immunity and such in the civilian world.
Great post LHP.
Why does blackwater need silencers anyway?
Scarecrow @ 23
Is it factually possible? yes, who the hell knows what batshit crazy thing they did.
Is it legally possible? Nope. Such and act would be ultra vires, that is “beyond the power” conferred on them
eCAHNomics @ 24
You don’t use regular ammunition with a silenced weapon. It requires subsonic rounds - and it blows to hell any kind of accuracy over distances greater than about 30 feet
Hmmmm….Blackwater has changed their “image” on their website too!!! They are trying to become invisible it seems…making themselves “small”..it is crazy!!!
http://www.blackwaterusa.com/
WTF is going on!!
LS @ 27
LS, the silencer investigation is not new. It pre-dates the the homicide investigation
Realist @ 31
Hey, I said as a matter of LAW, I didn’t say as a matter of fact. These guys make those up as they go along
looseheadprop @ 78
Okay, but still.
Aren’t silencers illegal in this country? But then again, so is waterboarding.
LAW? What is this word? Sounds familiar — heard it in my childhood I think.
karnak12 @ 76
OK, so someone explain to me again why they would need silencers…on the types of weapons they use? At distances less than 30 feet? Why do I keep thinking, Pat Tillman, Pat Tillman, Pat Tillman?
No one needs a silencer for a weapon in a warfare situation - only in a situation where you don’t want anyone to know/hear what you are doing.
Blackwater should really be called Murder, Inc.
Regular 45ACP works quite well.
Steve-AR @ 12
Just so folks here realize, Blackwater is not just about protecting DoS folks. According to Dr. Hillhouse over at The Spy Who Billed Me , Blackwater is one of the private mercenary organizations that performs “Special Operations” and contract military-type functions for hire for intelligence agencies like the CIA.
The Blackwater stuff we generally read about is the “visible” stuff, and a good deal more takes place under that blackwater that we don’t.
And don’t ask if there’s any oversight of those activities. With this Administration, and this Congress?
OT (sorta)
Y’all hear about the comments Pelosi made about Bush’s legacy?
Mad Dogs @ 14
The case I’d be looking at is Cooke v. Orser. Christopher Cooke was a missile launch officer who was prosecuted for passing information to the Soviets in 1980-81. As it happened, he was promised immunity if he cooperated in the investigation — but not by someone with authority to give immunity. The appellate courts nonetheless enforced the deal.
Bob Z @ 49
The thing is, it took me less than 1/2 hour to line up those links.
WHY can’t the MSM find this info out and report it accurately? Why do they only steno the crap they are spoonfed. This post was not hard to research. What do their news organizations actually pay them to do all day?
TexBetsy @ 82
Betsy - LOl - but then the laugh nearly turned to tears…
Every single day there’s some appalling piece of news.
We have sub-sonic ammunition. We bought it a WalMart. But we don’t have any silencers.
Hi Y’all,
I’m violating my “never come out of lurker” status just this once, to correct you, looseheadprop…(altho I love you)…
Check the case of Garrity v. New Jersey, 385 US 493 (1967) and follow-on cases. Yes, “immunity” can in fact be granted by an employer (*not* a prosecutor only). If a public employee is forced to answer questions on the job, those statements cannot be used in a criminal proceeding. And the fruits. Check it–I thought you and the readership would like to know.
xxx
Oh…this is sweet. The new improved, ultra innocent Blackwater…from their website:
“Innovation Begins with Experience
Blackwater Worldwide efficiently and effectively integrates a wide range of resources and core competencies to provide unique and timely solutions that exceed our customers’ stated needs and expectations.
We are guided by integrity, innovation, and a desire for a safer world. Blackwater Worldwide professionals leverage state-of-the-art training facilities, professional program management teams, and innovative manufacturing and production capabilities to deliver world-class, customer-driven solutions.
Our leadership and dedicated family of exceptional employees adheres to an essential of core corporate values- chief among these are integrity, innovation, excellence, respect, accountability, and teamwork.”
Yeah, I’ll say…gotta go sign up ASAP…
Immunity is not some causal thing that you can accidentally or carelessly sprinkle about like pocket lint.
No, it’s Pixie Dust, industrial grade…! C’mon, it’s an extension of the Unitary Executive, LHP! And just as illegal, if it ever sees the light of day…
TexBetsy @ 86
I’d be more impressed with comments like that if she didn’t keep giving Bush what he wants.
Ciara Durkin died by a bullet to her head in a secure area.
looseheadprop @ 61
I’d be pleading, as a defense guy, that any statements are inadmissible as having been coerced by a false promise of immunity.
‘Course, that still leaves open a couple of things:
1) Evidence obtained independently of “admissions” is still admissible, and
2) What if one guy who was promised immunity’s statement doesn’t implicate himself - but others? (I’d make the same argument if representing the implicated merc, but without self-implication, any argument to toss the other guy’s statement loses a lot of power.)(In fact, that would be *tough* evidence against the implicated merc(s).
lhp said: