Washington — Nearly four years after the U.S. government began a string of investigations and criminal prosecutions against Blackwater Worldwide personnel accused of murder and other violent crimes in Iraq and Afghanistan, the cases are beginning to fall apart, burdened by a legal obstacle of the government's own making. In the most recent and closely watched case, the Justice Department on Monday said that it would not seek murder charges against Andrew J. Moonen, a Blackwater armorer accused of killing a guard assigned to the Iraqi vice president on Dec. 24, 2006. Justice officials said that they were abandoning the case after an investigation that began in early 2007 and included trips to Baghdad by federal prosecutors and FBI agents to interview Iraqi witnesses.
The government's decision to drop the Moonen case follows a series of failures by prosecutors aimed at former personnel of Blackwater, founded by Michigan native Erik Prince and is now known as Xe Services. In September, a Virginia jury was unable to reach a verdict in the murder trial of two former Blackwater guards accused of killing two Afghan civilians. Late last year, charges were dismissed against five former Blackwater guards who had been indicted on manslaughter and related weapons charges in a September 2007 shooting incident in Nisour Square in Baghdad, in which 17 Iraqi civilians were killed.
Legal hurdles remain
Interviews with lawyers involved in the case, outside legal experts and a review of some records show that federal prosecutors have failed to overcome a series of legal hurdles, including the difficulties of obtaining evidence in war zones, of gaining proper jurisdiction for prosecutions in U.S. civilian courts and of overcoming immunity deals given to defendants by U.S. officials on the scene.
"The battlefield," said Charles Rose, a law professor at the Stetson College of Law, "is not a place that lends itself to the preservation of evidence."
The difficulty of these cases also illustrates the tricky legal questions raised by the government's increasing use of private contractors in war zones.
Such problems clearly plagued the Moonen case. In the immediate aftermath of the Christmas Eve shooting, Moonen was interviewed, not by the FBI but by an official with the Regional Security Office of the U.S. Embassy in Baghdad, the State Department unit that supervised Blackwater security guards in Iraq.
Stewart Riley, Moonen's lawyer, said his client gave the embassy officials a statement only after he was issued a so-called Garrity warning — a threat that he might lose his job if he did not talk but that he would be granted immunity from prosecution for anything he said. The legal warning and protection given to Moonen was similar to warnings that embassy officials later gave to the Blackwater guards involved in the Nisour Square case.
In each case, the agreements presented an obstacle to U.S. prosecution. In effect, the Blackwater personnel were being given a form of immunity from prosecution.
Justice Department officials declined to comment Wednesday about specific Blackwater cases. But they noted that the government has had a number of successful prosecutions against contractors in Iraq and Afghanistan.
The Snooper Report.
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