Defense lawyers for a former Blackwater private security guard who was once charged with manslaughter in Washington, D.C., are fighting the government’s assertion that he is still a defendant in the now-revived case.

Nicholas Slatten was one of five Blackwater guards charged with manslaughter in 2008 in Washington’s federal trial court following a shooting in Baghdad that left more than a dozen civilians dead. Lawyers for the guards, who were assigned to protect a U.S. State Department official, contend they acted in self-defense.

Prosecutors in 2009 asked a judge to dismiss Slatten from the case. That decision happened before a judge dismissed charges entirely against the other guards — and well before a federal appeals court, in 2011, revived the controversial prosecution. The federal trial judge, Ricardo Urbina, concluded the government presented to a grand jury sensitive information that was off-limits.

Prosecutors said last month that Slatten remains a defendant, arguing that the decision in the U.S. Court of Appeals for the D.C. Circuit reinstated the case against all five defendants. Not so fast, according to Slatten’s lawyers. They claim in a December 28 court filing that the government has “invented” a position to get around the fact the statute of limitations has run against Slatten.

“To permit the government to change its position now would pave the way for egregious manipulation of the judicial process,” Slatten’s attorneys at the Washington firm Wiltshire & Grannis said in the court filing.

The government’s reason for dismissing the case against Slatten is redacted from the court papers his lawyers filed last week. The attorneys, Thomas Connolly and Steven Fredley, said in their submission that prosecutors moved to dismiss the indictment “as a consequence of the limited evidence against Slatten, and the undeniable fact that the evidence was incurably tainted.”

In the eyes of Slatten’s attorneys, the D.C. Circuit decision in 2011 didn’t bring Slatten back into the fold. The appeals court, reversing Urbina’s decision to throw out the case, said in its opinion that it was sending the case back to the trial level “as to four of the defendants.”

“That fact is unmistakably clear,” Slatten’s attorneys said in court papers.

The dispute between prosecutors and Slatten’s defense lawyers centers in part on what the government considers a conflict between the D.C. Circuit judgment and the court’s opinion.

The judgment doesn’t mention anything about four defendants. It says, plainly, that Urbina’s ruling is vacated “in accordance with the opinion of the court.”

Slatten’s attorneys contend the government is mistaken in its claim that the D.C. Circuit judgment — not the opinion — governs. The defense attorneys argue that the D.C. Circuit mandate to the trial court — reviving the case — comprises a certified copy of the judgment and the opinion.

In the appeals court, Slatten’s attorneys said, prosecutors never argued for the reversal of the dismissal of the case against Slatten. At the oral argument hearing in the D.C. Circuit, a DOJ lawyer noted that a win in the appeals court would help the government if it decided to try to re-indict Slatten.

“Having waited until the mandate was issued and final, the government cannot now claim, to a different court, that the D.C. Circuit was simply wrong, and that the correct disposition of the case is something other than what the D.C. Circuit said in its opinion,” Slatten’s attorneys said.

In their court papers, prosecutors said “the government arguably should have moved to have the opinion corrected but failed to recognize that the error could be misused by defendant Slatten to argue that he is no longer a party.”

Prosecutors acknowledged that the statute of limitations has run against Slatten if a judge determines the D.C. Circuit didn’t revive the case against him. A ruling that the D.C. Circuit upheld the dismissal against Slatten, prosecutors said, “would be contrary to the public interest.”

Slatten’s attorneys contend the government dropped the ball and should not be rewarded by allowing Slatten to remain a defendant in the case.

“Nearly three years ago, the government announced that its indictment against Slatten was fatally flawed, that the indictment should be dismissed and that the government intended to one day re-indict Slatten,” the defense lawyers said. “The government never moved from the first two positions. For reasons known only to the government, it took no action on the third. The government now appears to regret that decision.”

Chief Judge Royce Lamberth of U.S. District Court for the District of Columbia has scheduled a hearing for later this month. In the meantime, the government has until January 10 to file papers countering Slatten’s position that he is no longer a defendant in the case.

Government lawyers said this summer they are taking necessary steps to keep prosecutors away from information that they cannot use against the guards. No new trial date is set.

This article first appeared on The BLT: The Blog of Legal Times.