Commentary: Blackwater, Nisoor Square and the U.S. justice system

As 2010 opens, ricochets from the shooting deaths of 17 Iraqis in 2007 are again bouncing between Baghdad and Washington, following the abrupt halt to the U.S. criminal case against five Blackwater USA security guards accused of manslaughter in the shootings. In Iraq, calls for punishment of the Americans are coming from Prime Minister Nouri al-Maliki and from ordinary citizens. Most of all, they come from relatives of the 17 dead and the many wounded — none of whom, it appears, posed an armed threat on that tense September day in Baghdad's Nisoor Square.

There is ample reason for outrage. Evidently, automatic-weapons fire from employees of Moyock-based Blackwater killed the Iraqis. That the Americans were not soldiers, but employees of a private security firm (protecting State Department personnel), made the firepower unleashed in the square even harder to accept. The Blackwater guards said they were only responding to insurgents' fire in a threatening, chaotic situation (although investigations failed to turn up evidence of hostile fire).

The issue of provocation would have been central to a criminal court trial. Late last week, however, Judge Ricardo Urbina of the U.S. District Court in Washington ruled, in effect, that the government had compelled the guards to testify against themselves. On that basis he rightly dismissed the criminal charges.

Involved here is a key legal and constitutional point that has surfaced before in multi-pronged investigations. In this case, Justice Department prosecutors evidently drew on statements made by the guards when they faced the post-incident State Department questioning required of government contractors. Urbina detailed how prosecutors were not sufficiently shielded from those statements.

For all its flaws, our justice system is grounded in fair treatment for everyone, even (or especially) unpopular defendants. The government should study Urbana's opinion closely — it could be appealed — but unless an untainted case can be brought, the criminal matter must be dropped. There remain other means, mainly in civil court, to help clean up the bloody mess that was Nisoor Square.

To read the complete editorial, visit The (Raleigh) News & Observer.