Criminal defense lawyers and their investigators routinely venture into rough neighborhoods to interview witnesses and gather evidence. But there's probably little concern about sniper attacks, mortar fire and roadside bombs.
Those are the fears of a group of private defense lawyers who want to travel to Iraq to conduct their own investigation amid the prosecution of five Blackwater Worldwide security guards, charged with voluntary manslaughter in the killing of 17 unarmed Iraqi civilians in a shootout in 2007.
The lawyers are demanding the government provide a security detail. The Justice Department is fighting the request, calling it "radical" and unnecessary. For the government, the stakes are high going forward as more and more foreign-based criminal allegations end up in federal district courts in the United States.
In court papers filed earlier this month in the U.S. District Court for the District of Columbia, the Blackwater legal team filed a motion arguing the government should be compelled to provide the same protection accorded the federal prosecutors and civilian FBI agents who spent weeks in Iraq before the Blackwater guards were indicted.
"The experiences of the prosecutors and the FBI in Iraq, and the substantial government resources devoted to their security, illustrate an obvious truth: American lawyers and investigators working in Baghdad face mortal danger," wrote Steptoe & Johnson partner Mark Hulkower. "They require professional protection to assure their survival and to enable them to perform their work."
Justice lawyers fired back last week, saying the defense attorneys should rely on any number of private security contractors working in Iraq. Granting the request would mark an "unprecedented and unwarranted" exercise of judicial authority, according to Justice attorneys.
Judge Ricardo Urbina has said a chief concern for him is the safety of the lawyers. But several defense lawyers who are following the Blackwater criminal litigation said it's unlikely that Urbina will rule in favor of the defense team, which includes David Schertler of Schertler & Onorato and Thomas Connolly of Wiltshire & Grannis, both of Washington, D.C. "If they want armed bodyguards, by golly, there's lot of folks who do that," said Puckett & Faraj military lawyer Neal Puckett of Alexandria, Va., who has traveled to Iraq twice and owns his own body armor and Kevlar helmet. He said he doesn't see any basis in law or necessity for granting the defense request.
Defense lawyers, he said, travel at their own risk.
The government's case against the Blackwater guards stems from a shooting in Iraq in Baghdad's Nisoor Square on Sept. 16, 2007. The indicted guards, contractors for the State Department, were part of a convoy that stopped in a busy intersection. Prosecutors allege the indicted Blackwater contractors were unprovoked when they opened fire.
The prosecution is the first under the Military Extraterritorial Jurisdiction Act to be filed against non-Defense Department private contractors. North Carolina-based Blackwater, now called Xe Services LLC, is still under contract with the State Department. The defense lawyers, however, said in court papers that the company "has no ability of any kind" to provide security in Iraq. The contract is set to expire in January.
Since June, the defense lawyers in the case have been talking with Justice attorneys about access to witnesses and evidence in Iraq. On Sept. 2, the lawyers received a letter from a U.S. embassy official in Iraq that said the government would not take responsibility for providing security. Blackwater didn't return calls seeking comment.
At a Sept. 14 hearing in federal district court in Washington, Hulkower made what a federal prosecutor called an "emotional" pitch for security. "It's not as if we are commercial vendors looking to make a sale in Iraq and, therefore, the Department of State gives us the form of contractors and says 'be careful if you go over, here's a list,' " Hulkower said, according to a transcript. The two sides are part of the same process, he said, and if the government gets a military escort "[why] can't we just have the same thing?"
Assistant U.S. Attorney Jonathan Malis, responding to Hulkower's argument, said in the hearing that the Blackwater case poses no circumstances any different from other violent areas where lawyers travel.
The defendants are willing to reimburse or defray the costs of government-provided security. The lawyers say the dispute does not concern cost but the government's "unwillingness" to assist the defense with security measures.
Urbina said in court last month that his concern is not money since "[I] imagine the defendants are prepared to pay something to assist the taxpayers in supporting this protective effort." Urbina said his primary concern was one of safety. "[I]f the defense has to pay for it, then the defense has to pay for it, but under no circumstance will I feel comfortable if any representative of the defense team or the government, for that matter, is detailed out to Iraq with less than the maximum amount of protection appropriate for the situation," Urbina said in court.
Justice lawyers said in court papers filed on Oct. 19 that, if Urbina grants the defense request, the judge would eventually find himself presiding over technical security disputes, such as whether a government convoy of three vehicles is sufficient when the government investigators traveled in a convoy of four.
"Even putting aside the constitutional implications, it would be extraordinary and risky for the court to accept the defendants' invitation effectively to involve itself in the tactically employment of the U.S. military," Paul Ahern of the Justice Department's Federal Programs Branch said in court papers.
Justice lawyers question why the defense lawyers even want a military escort in the first place. Private security contractors have greater freedom to travel than the military and can operate with "reduced visibility."
One lawyer watching the case said a ruling against the defense lawyers' request could work in their benefit as an advocacy tool -- a showing that the government is unable to provide security. "If it's denied, they'll say there's no way for someone to conduct an investigation in Iraq without hiring private security," said Miller & Chevalier partner George Clarke III, who has represented Guantánamo Bay, Cuba, detainees. "The defense wants to show these guys play a critical and important function to a wide variety of people in a combat zone."