WASHINGTON — It's been nearly a decade since private security contractors working for the US government opened fire on a busy traffic circle in Baghdad, leaving more than a dozen Iraqi civilians dead and many more wounded.
Four of the guards, employed by the company formerly known as Blackwater Worldwide, were convicted in 2014 of manslaughter and, in one case, first-degree murder for the 2007 shooting. The guards have fought the prosecution at every step. Now, as 2017 gets under way, the legal sparring continues.
The guards want a full acquittal. At a minimum, they're asking for a new trial. The first trial in 2014 lasted 11 weeks, followed by seven weeks of jury deliberation.
On Tuesday, a federal appeals court in Washington heard arguments on the guards' challenge to their convictions. The lawyers argued over whether federal law permitted prosecutors to charge the guards for conduct abroad, and, if so, whether the trial should have taken place in Washington, DC, as opposed to Utah, where the guards were arrested.
The guard found guilty of first-degree murder, Nicholas Slatten, separately contends that the evidence presented by prosecutors at trial didn't support the more serious charge he faced, and that he was a victim of vindictive prosecution.
The case has bounced between the trial and appeals courts for years. The convictions in 2014 were a hard-fought win for the US Department of Justice — the government nearly lost the case several years earlier because of how it handled evidence. A ruling for the defendants now would be a big setback in a high-profile case that's seen as a test of how the United States polices the private contractors it hires around the world.
The guards, through Blackwater, were hired to do diplomatic security for the US Department of State in Iraq. On September 16, 2007, a car bomb went off in Baghdad, and Blackwater guards were dispatched to secure a safe route for a US official who was near the explosion. While stopped around a traffic circle known as Nisur Square, the guards fired on cars and people in the area. Prosecutors say it was a one-sided firefight. The guards say they thought they were under attack.
At least two dozen of the guards' friends and family members attended Tuesday's hearing at the US Court of Appeals for the DC Circuit. The defendants are serving sentences ranging from 30 years to life in prison. The wife of one of the guards declined to comment on the morning's arguments on behalf of the group.
A major focus of Tuesday's hearing was the jurisdiction of US courts over the conduct of US government employees and contractors working abroad. The guards were charged under the Military Extraterritorial Jurisdiction Act, which allows the US government to prosecute individuals for alleged criminal activity overseas who are employed by or otherwise supporting the armed forces.
Notably, Alabama Sen. Jeff Sessions — President-elect Donald Trump's nominee for US attorney general — in 2004 successfully introduced the amendment to the jurisdiction law that extended its reach to civilian contractors who weren't employed by the Defense Department but were working for a federal agency in support of the military's mission.
The guards argue that they were contractors for the State Department whose contract was not aimed at support of the military's mission, and, as such, the military jurisdiction law doesn't apply to them.
Brian Heberlig, a lawyer with Steptoe & Johnson LLP in Washington who argued on Tuesday for the three guards convicted of manslaughter, pointed to trial testimony from former Deputy Secretary of Defense Gordon England, who said that the guards' contract with the State Department was not part of the military's mission. "That should end this matter," Heberlig told the court.
Judge Karen LeCraft Henderson asked if the guards were still supporting the military's overall mission in Iraq by protecting diplomats and other officials. No, Heberlig replied, unless the court supported the government's "overbroad" interpretation of the law.
Prosecutors argue that the Defense Department and State Department were operating as "one team" in Iraq in 2007. Congress passed the Military Extraterritorial Jurisdiction Act to hold US contractors responsible for their actions overseas, and siding with the guards' narrow reading of the law would undermine that goal, US Department of Justice lawyer Demetra Lambros argued on Tuesday.
Lambros said that by hiring the Blackwater guards, soldiers who were handling diplomatic security could go back to working for the military. Judge Janice Rogers Brown said that argument seemed to "undercut" the government's position, since it would suggest separate missions. Lambros replied that the mission, to rebuild and stabilize Iraq, was the same across the State and Defense departments.
Slattten's lawyer, Timothy Simeone of Harris, Wiltshire & Grannis, argued separately on Tuesday. Prosecutors alleged Slatten fired the first shot in Nisur Square, killing a medical student who was driving with his mother. The government said Slatten hated Iraqis, and had bragged in the past about firing on Iraqis to provoke a fight. Simeone argued there was conflicting testimony at trial about whether Slatten fired first, or if the first shot came from another member of the Blackwater team.
Simeone also argued that the government filed the murder charge against Slatten to punish him for successfully challenging the original manslaughter charge.
The indictments against the guards were dismissed in 2009 after a judge found that prosecutors wrongly relied on compelled statements the guards gave shortly after the shooting. The DC Circuit revived the case in 2011, but Slatten argued that order didn't apply to him, and that as a result prosecutors missed the deadline to reindict him for manslaughter.
The DC Circuit in 2014 agreed with Slatten, criticizing the Justice Department for its "inexplicable" failure to act in time. Prosecutors instead charged him with first-degree murder, the only charge they could bring at that point. Slatten said it was an act of vindictive prosecution; prosecutors said they could file charges they believed were supported by the evidence, and were motivated by a legitimate desire to bring Slatten to justice.
The guards are all also arguing that the case should have been heard in Utah, where they were arrested, instead of Washington, and that a key prosecution witness contradicted his trial testimony in a written statement he submitted before sentencing.
The DC Circuit sealed the courtroom for arguments in Slatten's case about witness statements that haven't been part of the public record. Judge Judith Rogers also heard the case.