There’s been a Kastigar hearing, a direct appeal, a mandamus action, a judicial call for an Inspector General investigation into the State Department’s conduct in the case, a promised request for the government to pay attorneys’ fees for one of the members of Raven 23, posturing about new charges, and threats of motions for vindictive prosecution.

If you find yourself with some time, reading the papers in the case – the case number is 08-360 on D.D.C.’s docket – isn’t a bad way to spend it.

If you find yourself without that kind of time, here’s a blow by blow of some of the most interesting bits.

The Kastigar Hearing

The government took statements from the members of Raven 23. These were taken after Garrity Warnings were given, meaning that the statements couldn’t be used later against them (here’s a bit of background on Garrity warnings if you’re not familiar with them).

The trouble is, those statements were leaked. As Judge Lamberth observed about these leaks:

If the Department of State and Diplomatic Security Service had tried to deliberately sabatoge this prosecution, they could hardly have done a better job. It is incredible the way these defendants were coerced into making statements to DSS agents. The impropriety of this was well settled law at the time. Even more egregious, though, was the leaking to the news media of the statements given. Yet it appears there has been no investigation of these circumstances and no one has been held accountable. Nor is there any reason to think anyone has learned a lesson from this fiasco or that any steps have been taken to avoid repetition.

Judge Lamberth then asked the D.C. U.S. Attorney to ask the State Department’s Inspector General to investigate.

Of course, no one reads an article in the press as closely as those involved in the story. So, not surprisingly, lots of folks who were witnesses in the case read the news accounts of the immunized statements of the members of Raven 23 who were charged.

Which presented a problem. Of course, if the witnesses have based their testimony on knowledge of an immunized statement, then that witness’s testimony can’t be used – it’s derived in part from the immunized statement (here’s a bit of background on the categories of immunity for witness statements). So, the way you find out if this evidence is derived from the immunized statement is to have a Kastigar hearing.

The last big Kastigar hearing was in the Oliver North trial — they feel like very 80s proceedings. One wonders if the lawyers wear big hair or shoulder pads to such a hearing.

Normally, the government really prefers not to have a Kastigar hearing — which is why they’re very reluctant to give someone the kind of immunity that would require a Kastigar hearing.

Here, after the Kastigar hearing (and it’s appeal) the government took the original prosecution team off the case, brought in a taint team to do a taint review to see what could go to a new, clean, team of prosecutors to prosecute the case, and also set up a number of filtering processes to work on grand jurors and witnesses to screen out anyone with taint of the prior, immunized, statements.

Procedurally, the folks from Raven 23 who were charged had a Kastigar hearing before Judge Urbina who dismissed the original indictment. That decision was appealed, and remanded, and is now before Judge Lamberth (Judge Urbina has retired from the bench and, as I hear it, is on a long and well-deserved motorcycle tour of the south).

Judge Lamberth denied a motion to dismiss the indictment because the grand jury was tainted. It’ll be fun to see what happens with the trial evidence.

Nicholas Slatten

A separate issue is brewing involving one member of Raven 23, Nicholas Slatten. Slatten is represented by Tom Connolly, one of the uber white-collar lawyers in DC, who is doing a nice job of playing for dropped balls in the case.

Earlier, as a part of Judge Urbina’s decision to dismiss the indictment, Judge Urbina determined that the indictment was dismissed without prejudice to the government’s ability to reindict.

On the government’s appeal, the government conceded that Slatten wasn’t in the appeal — they were only raising the appellate issues as to the other folks who were charged. (this is all summarized pretty well in the D.C. Circuit’s later opinion)

So, when the D.C. Circuit decided the appeal, they didn’t decide anything as to Slatten.

Time passed. The statute of limitations ran.

A new indictment came. Connolly, on behalf of Slatten, moved to dismiss the indictment against his client because it was time barred. Judge Lamberth denied it. Connolly sought mandamus. He succeeded — the D.C. Circuit ordered that:

the district court is directed to enforce the mandate issued 6/5/12, in U.S. vs Slough, No. 10-3006; the petition is granted in order to direct the district court that the USCA’s prior mandate cannot be read as reversing the district court’s order dismissing the indictment against NICHOLAS ABRAM SLATTEN.

The federal government does not take kindly to losing.

The prosecutors filed a petition for rehearing in the D.C. Circuit, saying that it would be manifestly unjust for the D.C. Circuit’s prior decision to mean what it said, and for the government’s decision not to include Slatten in the appeal to have any effect on what the courts do.

Per Curiam, the D.C. Circuit slapped the government down, noting:

If there was a “miscarriage of justice” here, it was caused by the government’s inexplicable failure to reindict Slatten by the deadline set by the statute of limitations. But we cannot cure one such alleged miscarriage of justice by causing another – that is, by rewriting our mandate into something it was not in order to permit the government to charge Slatten after the statute of limitations has run.

(See also, the NLJ’s coverage).

Now, Connolly says he’s going to seek fees from the government for reindicting his client. The government says it’s going to indict Slatten for something else — maybe first-degree murder. Connolly says he’ll file a vindictive prosecution motion.

The firefight continues.

Although some analysts argue that a BSA will likely be implemented after the upcoming Afghan elections, many others are less confident. In spite of NATO’s greatest efforts to equip and train the Afghan National Security Forces (ANSF), the Taliban and other extremist elements still constitute an aggressive and formidable force that will continue to threaten Afghanistan’s fragile security apparatus. If a BSA can not be negotiated before the end of 2014, what action can be taken, then, to prevent NATO’s decade-long state-building campaign from being squandered and to halt the resurgence of militant extremism?

As explained in a previous article, the use of PMCs has increased significantly over past decades, most prominently in the wars in Iraq and Afghanistan, where private contractors outnumbered state military personnel by significant margins.

By accruing operational and strategic expertise from among military veterans, PMCs have grown into highly effective and professional security forces and could effectively supplant NATO post-2014. Equally important however, in the context of maintaining security in Afghanistan, PMCs will also provide significant political protection to the government agencies that hire them.

According to Dr. Doug Brooks, President of the International Stability Operations Association, although the West remains willing to authorize and symbolically support certain missions, it has largely abrogated responsibility to deploy and maintain a troop presence in regions where it has declining interests. This is understandable given the protracted and complex nature of NATO operations, paired with diminishing public support and the soaring costs associated with expeditionary military operations.

In the absence of NATO forces, the concomitance of Afghanistan’s fledgling domestic security apparatus and resurgent militant extremism is reasonably assumed to invite greater participation by private forces. Indeed, PMCs trace their history specifically to operations in which they focused their resources and expertise to combat potent anti-government and insurgent factions, at the behest of states unable to independently suppress such threats.

A sizeable private military contingent operating under Western auspices to bolster Afghan security may confer political protection relating to accountability and culpability, atypical of force structures consisting exclusively of state security forces. Governments are always accountable for misconduct by state security forces, but in like circumstances involving private forces, company executives are more likely to bear the scrutiny associated with the egregious behaviour of their employees.

Correspondingly, state actors such as the Afghan government and Western agencies may effectively relinquish accountability and culpability for human rights violations and other incidents of grave misconduct by private forces, which are prone to occur during routine operations in unstable security environments such as Afghanistan.

To illustrate, private military contractors shot and killed 17 civilians in Baghdad’s Nisour Square, while providing security for a US State Department convoy. The unprovoked massacre incited tremendous ire among the Iraqi populace towards PMCs, but not towards the Iraqi government or the US agency that hired the PMC. This was of course due to the fact that neither was directly responsible for the massacre, and because both were observed to be taking legal and other investigative actions against the PMC and its employees.

Should a similar tragedy occur in Afghanistan, the Afghan government and the Western agency might likewise escape public scrutiny. Moreover, in order to maintain solidarity with public agitation, and to avoid a public backlash stemming from perceived government unresponsiveness or inaction, they could jointly condemn, investigate and force PMCs to undertake reparatory actions.

From a cost-benefit perspective, in the absence of NATO forces, the Afghan government would benefit from the expert military prowess of PMCs operating under Western auspices, without risk or liability for grave misconduct by private contractors and the subsequent public backlash. In addition, the financial cost of hiring PMCs would be borne by the agencies hiring them, rather than the Afghan government.

PMCs also carry less political baggage concerning casualties and fatalities, which are unavoidable consequences of deploying forces to countries as volatile as Afghanistan. Contractor fatalities are politically inconsequential for governments, while military fatalities on the other hand can pose exceptional liabilities. The accumulation of military fatalities tends to erode public support for military campaigns as the human costs of conflict become increasingly apparent to the public. Such was the case for instance in 2008 when US military fatalities in Iraq reached 4000 and continued to steadily increase thereafter, sending shockwaves through the American public.

By contrast, contractor fatalities are not likely to pose the same risks to public support as those suffered by the military. Information regarding contractor fatalities remains internal to PMCs and is rarely publicized. Thus, the deployment of contractors in place of state military personnel could also mitigate public disenchantment arising from mission-related fatalities, serving as a means to sustain public support in spite of a mission’s despondent trajectory.

PMCs have risen to the fore of expeditionary military, state building, and stability operations amidst unceasing controversy, attributed to numerous and well-documented human rights violations. However, PMCs’ ascendancy will persist in spite of such misconduct, as a result of the benefits they provide to the government authorities that hire them.

As reported by Alessandro Gagliardi 

Alessandro Gagliardi graduated with a Bachelors degree in Political Science from the University of British Columbia-Vancouver. Immediately after graduation Alessandro was employed in the defense industry with a private Canada-based defense contractor. He has since gained experience tendering for defense contracts and has participated in numerous other industry projects. Alessandro’s primary research interests include American and Canadian foreign policy, Canadian defense procurement, the deployment of armed civilian contractors to conflict zones, and human rights.