The government isn’t retreating from a new criminal case against a group of former private security guards who were first charged in 2008 with manslaughter for their alleged roles in a shooting in Iraq that left more than a dozen civilians dead.
The case against the former Blackwater security guards collapsed in late 2009 when a federal trial judge in Washington, D.C., concluded the government improperly relied on evidence, including protected statements the guards made to government officials in the aftermath of the gunfire. In 2011, however, the U.S. Court of Appeals for the D.C. Circuit revived the controversial prosecution.
Prosecutors told a judge Thursday at a hearing that the government is moving forward with a superseding indictment and should have new charges finalized in the next six to eight weeks. The prosecution on Thursday didn’t go into detail whether the scope of the charges would be markedly different from the manslaughter and weapons violations case the government first brought.
Whether or not all five men remain a part of any new case remains unknown. One of the guards, Nicholas Slatten, whom the government dismissed from the earlier prosecution, contends he cannot be brought back into any new case.
Resolving whether or not Slatten remains a defendant — the prosecution maintains the D.C. Circuit ruling applied to all the guards, not just four of them — won’t happen anytime soon. At the hearing Thursday, Chief Judge Royce Lamberth of U.S. District Court for the District of Columbia said he would address the issue after the government lodges a new indictment.
An Assistant U.S. Attorney, Anthony Asuncion, asked Lamberth to set a trial date for September. Defense lawyers in the case protested, saying that they need more time to prepare.
One attorney, David Schertler, who represents Dustin Heard, said the government has had two years to prepare for any new charges. "We’ve been on hold waiting to see what they’re going to do," Schertler said in court.
Asuncion told Lamberth Thursday that the government has made "substantial progress" with interviewing witnesses, including talking with people in Iraq. Prosecutors said they’ve disclosed thousands of pages of information to the defense attorneys. For the defense, a trip to Iraq, to investigate government claims, could be in the future.
Prosecutors also said they’re following a "stringent" process — through the use of a so-called "filter" team — to keep the government trial attorneys walled off from any information that is protected. The filter lawyers are not the same attorneys who are handling the trial work. The defense attorneys said Thursday they’d likely challenge any new indictment.
In the litigation in the first case, the defense lawyers argued that the guards, who were charged following a shooting in Baghdad in 2007, fired in self-defense. The indictment was the first under the Military Extraterritorial Jurisdiction Act to be filed against private contractors.
Defense lawyers said Thursday that it’s an open question whether the government has jurisdiction to prosecute the guards. The trial judge in the first case, Ricardo Urbina, who has since retired, left the question for the jury to decide. The prosecution never got to a jury the first time around. Urbana dismissed the charges in a ruling in December 2009, finding that the indictment was "fatally tainted."
Lamberth is planning to meet again with the defense lawyers and prosecutors at a hearing in April.
This article first appeared on The BLT: The Blog of Legal Times.