7 years later, Blackwater guards go on trial

June 9, 2014 | Around the World, Justice Abroad

WASHINGTON — After years of delays, four former guards from the security firm Blackwater Worldwide are facing trial in the killings of 14 Iraqi civilians and the wounding of 18 others in bloodshed that inflamed anti-American sentiment around the globe.

Whether the shootings were self-defense or an unprovoked attack, the carnage of Sept. 16, 2007 was seen by critics of the George W. Bush administration as an illustration of a war gone horribly wrong.

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A trial in the nearly 7-year-old case is scheduled to begin with jury selection on Wednesday, barring last-minute legal developments. Prosecutors plan to call dozens of Iraqis to testify in what the Justice Department says is likely to be the largest group of foreign witnesses ever to travel to the U.S. to participate in a criminal trial.

The violence at the Nisoor Square traffic circle in downtown Baghdad was the darkest episode of contractor violence during the war in Iraq, becoming one more diplomatic disaster in a war that had many. Iraqi officials, who wanted the guards tried in a local court, were outraged.

In the trial, defense lawyers will focus on the guards’ state of mind in a city that was a battleground.

Car bombs and insurgents were daily perils for the Blackwater teams. As part of its work with the State Department, Blackwater had a team of 15 intelligence analysts who produced daily threat updates, colored maps of a city riddled with bomb blasts.

“The core disputed issue in this prosecution is self-defense — whether the defendants believed that deadly force was necessary to defend themselves and their teammates from an insurgent attack, and whether that belief was objectively reasonable,” lawyers for the guards said in court filings.

Reasonableness shouldn’t be judged on “hindsight analysis in a courtroom seven years and thousands of miles removed from the event,” the lawyers argue in the filings.

In the aftermath of the shootings, Blackwater Worldwide provided the government with photos of the guards’ vehicles pocked and streaked with bullet marks.

On Capitol Hill, one theme in politically tinged congressional hearings was that hiring large numbers of security guards, and letting them operate outside the military chain of command in a war zone, was a recipe for disaster.

Blackwater founder Erik Prince declared: “I believe we acted appropriately at all times.” The Nisoor Square shootings spelled the death knell for his company. Formerly known as Blackwater Worldwide, the company is under new ownership, is based in Virginia and Prince is no longer affiliated with it. The company was sold to a group of investors who changed the name to Academi.

The very presence of security guards in Iraq is touchy. Lawyers for the guards had asked that current or former members of the military not wear uniforms when they testify in the case, a request the court denied. The guards’ lawyers argued that distinctions between contractors and uniformed military had become highly politicized.

In 2009, U.S. District Judge Ricardo Urbina dismissed the case against the Blackwater guards. From the Iraqi government’s perspective, the dismissal was an example of Americans acting above the law. Urbina said government lawyers ignored the advice of senior Justice Department officials by building the criminal case on sworn statements of the guards given under a grant of immunity — meaning the guards’ own statements could not be used against them.

Two years later, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit revived the prosecution, ruling that Urbina had wrongly interpreted the law. The decision gave the Justice Department another chance.

In the upcoming trial, one of the guards, Nicholas Slatten, is charged with first-degree murder. The other three guards — Paul Slough, Evan Liberty and Dustin Heard — are charged with voluntary manslaughter, attempted manslaughter and gun charges. Slatten could be sentenced to life in prison if convicted, while the other guards face a mandatory minimum penalty of 30 years in prison if a defendant is convicted of the gun charge and at least one other charge.

Last September, prosecutors agreed to dismiss their case against a fifth guard, Donald Ball, a retired Marine from West Valley City, Utah. A sixth guard, Jeremy Ridgeway of California, pleaded guilty to voluntary manslaughter and attempted manslaughter, is expected to testify for the prosecution and is awaiting sentencing.

On the day of the shootings, a car bomb exploded in downtown Baghdad near a meeting attended by a U.S. official. In response, the 19-member Blackwater team — known by its call sign Raven 23 — established a blockade at nearby Nisoor Square.

The government says six of the 19 members of Raven 23, including the four defendants, fired shots that resulted in the deaths of at least 14 people and injuries to at least 18 others.

One of the defendants, Slatten, “initiated the entire incident” by firing the first shots that day “without justification,” the prosecutors said, firing his sniper rifle from a concealed position inside the convoy’s command vehicle.

In 2010, prosecutors obtained indictments against former Blackwater president Gary Jackson and four others on felony firearms violations involving dozens of weapons. All charges against three of the accused were dismissed after a federal judge ruled to reduce several of the felony charges to misdemeanors. Jackson and the former company vice president admitted guilt on misdemeanor charges.

Last year, Academi settled federal criminal charges against the company, paying a $7.5 million fine for firearms violations. Academi also settled lawsuits brought by survivors of the Iraqi civilians killed during the Baghdad shooting.

FILE – This Sept. 25, 2007 file photo shows an Iraqi traffic policeman inspects a car destroyed by a Blackwater security detail in al-Nisoor Square in Baghdad, Iraq. After years of delays, four former guards from the security firm Blackwater Worldwide are facing trial in the killings of 14 Iraqi civilians and the wounding of 18 others in bloodshed that inflamed anti-American sentiment around the globe. Whether the shootings were self-defense or an unprovoked attack, the carnage of Sept. 16, 2007 was seen by critics of the George W. Bush administration as an illustration of a war gone horribly wrong. A trial in the nearly 7-year-old case is scheduled to begin with jury selection on Wednesday, barring last-minute legal developments. (AP Photo/Khalid Mohammed, File)

KBR, Inc. Ruling Threatens Privilege in Mandatory Disclosure Investigations

May 14, 2014 | Justice Abroad

Recently, the U.S. District Court for the District of Columbia ruled that a company’s work product created during an internal mandatory disclosure investigation was not protected by the attorney-client privilege or attorney work-product doctrines. During discovery in United States ex. rel. Barko v. Halliburton Co. et al., KBR sought to withhold internal investigation reports relating to alleged fraudulent activities during its performance of the Logistics Civil Augmentation Program (LOGCAP III) contract in Iraq. The ruling casts doubt on whether documents created pursuant to internal investigations are protected by the attorney-client privilege or work-product doctrines and could significantly impact how companies conduct internal investigations, including their mandatory disclosure practices.

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The relator filed his case against KBR under the False Claims Act (FCA) in 2005, alleging that KBR had overcharged the government in a variety of ways under KBR’s LOGCAP III contract. During discovery, the relator requested that KBR produce documents relating to internal audits and investigations of alleged misconduct that was reported by KBR employees under LOGCAP III. KBR asserted that the material was protected by the attorney-client privilege and work-product doctrine. After the relator moved to compel, the court conducted an in camera review of the documents.

In a March 6, 2014 ruling, the court ordered KBR to produce the contested documents, finding that they were created for the business purpose of complying with the mandatory disclosure regulatory scheme. The court held that because of the lack of attorney involvement in the investigation, and the fact that non-attorneys conducted the interviews and prepared the investigative reports, there was no evidence that the documents were created to obtain or provide legal advice to the company or were prepared in anticipation of litigation. In a subsequent decision, the court also noted that KBR may have waived its privilege and work-product claims by placing the documents at issue when it relied on the documents during summary judgment. The district court’s decision, which has been appealed to the D.C. Circuit, has been stayed pending appellate review.

The district court’s view that internal, corporate investigations may not be privileged poses wide reaching ramifications for contractors. Most notably, is the potential chilling effect that the decision could have on contractors’ willingness to conduct investigations or not to document their findings and conclusions. Neither outcome furthers the purpose of the mandatory disclosure regime under the Federal Acquisition Regulation (FAR), which is to encourage timely disclosures and transparency with the government. Indeed, such a position appears to be inconsistent with the protections afforded under the FAR, which provide that contractors need not waive privilege when complying with the mandatory disclosure rules. See FAR 52.203-13. In addition, the district court’s decision indicates that courts may more frequently begin to scrutinize asserted privilege claims over corporate investigations, including who, what, when, why, and how the matter was investigated, rather than accept representations from companies that the materials are protected. Under such a review, it is questionable whether a general assertion that the matter was investigated under the auspices of counsel would be sufficient if the investigation was not actually conducted by counsel. Finally, although the materials in this case related to a mandatory disclosure assessment, the court’s holding could apply beyond mandatory disclosures, as its reasoning potentially extends to any type of corporate investigation.

Considerations for Contractors in the Wake of Barko

The effects of Barko may be limited to its facts, where KBR attempted to use the documents offensively, in support of its motion for summary judgment, to assert that no wrongdoing occurred and where non-attorneys conducted and generated the investigation materials. Presumably, had KBR refrained from placing the documents at issue and conducted the investigation through counsel, the court may have found the materials to be protected from discovery. Nevertheless, Barkoraises important considerations and best practices for contractors.

When conducting internal investigations, contractors should ensure that counsel are actively participating in the review, and not just generally supervising or overseeing the matter. The more hands-on efforts by attorneys a company can show, the better chances are that any investigation materials will be protected by the attorney-client privilege and work-product doctrine.
Contractors should also revisit their procedures surrounding the handling of corporate investigations, including mandatory disclosure reviews, to confirm that the investigations are for purposes of seeking or providing legal advice to the company, and not simply for making business decisions regarding the regulatory requirements alone. Counsel should ensure that all investigatory documents are drafted with this purpose in mind and clearly indicate that they are being drafted to provide legal advice and/or in anticipation of litigation, with the appropriate legends. Additionally, counsel should be involved in all communications relating to the investigation.
Contractors should ensure that counsel takes the lead on the investigation. Counsel should evaluate the evidence and draft any investigation findings, analyses, or reports. Further, where appropriate, contractors should evaluate using outside counsel to conduct the investigation, which will demonstrate that the investigation is being undertaken to provide legal advice and, thus, privileged. To the extent that non-attorneys participate in the process, any reports should be marked as drafts and reflect that they are providing the information at the request of counsel. Counsel should evaluate and finalize any such materials.
During an investigation, counsel should take all interviews or at least attend them if that is not possible. Counsel should ensure that witnesses are given Upjohn instructions that inform them that the interview and investigation are being conducted for the purpose of providing legal advice to the company. Such procedures should provide further evidence that the investigation is privileged.
Finally, given the ruling in Barko, contractors should review their policies regarding all internal investigations, including mandatory disclosures, to ensure that they are current and that the company will be sufficiently protected in the event protected documents are ordered to be produced. While Barko dealt with a qui tam action under the FCA, the foregoing considerations equally apply to any disclosure scenario, including responses to IG subpoenas and FOIA requests.

USAID Contractor in Afghanistan Arrested on Embezzlement Charges

April 15, 2014 | Humanitarian & Aid, Justice Abroad

KABUL, AFGHANISTAN — Afghan police working with American agents arrested an Afghan man on charges of stealing more than a half million dollars from an agricultural development fund supported by the U.S. Agency for International Development (USAID). The money was insured, and there was no actual loss of U.S. taxpayer funds.

Afghan National Police made the arrest on April 2 in the northern city Mazar-e-Sharif, along with agents from the USAID Office of Inspector General (OIG). The arrest followed a long-running joint investigation by Afghan law enforcement agencies, USAID OIG and the Special Inspector General for Afghanistan Reconstruction (SIGAR).

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Justice Abroad

7 years later, Blackwater guards go on trial

KBR, Inc. Ruling Threatens Privilege in Mandatory Disclosure Investigations

Considerations for Contractors in the Wake of Barko ​

USAID Contractor in Afghanistan Arrested on Embezzlement Charges

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Considerations for Contractors in the Wake of Barko