AMY GOODMAN: A federal judge in Washington has dismissed all charges against the five Blackwater operatives accused of gunning down fourteen innocent Iraqis in Baghdad’s Nisoor Square in September of 2007.

Judge Ricardo Urbina’s dismissal of the charges on New Year’s Eve was met with outrage in Iraq. The Iraqi prime minister’s spokesman Ali Al-Dabbagh vowed to pursue the case and called Judge Urbina’s dismissal, quote, “unfair and unacceptable.”

ALI AL-DABBAGH: We are sorry that the federal judge had that verdict. We keep them and we hold them criminals, as per our investigation here in Baghdad. The Blackwater personnel, those five people, they had used excessive force, and they didn’t follow the rule of engagement, and they had killed innocent Iraqis. We reserve the right of our victims, Iraqis and all the citizens, which has been harmed during this criminal act. We reserve the right to follow and to bring them to the justice.

AMY GOODMAN: Al-Dabbagh also indicated that the Iraqi government would support a lawsuit filed in US courts by victims of the shooting against the five security guards from Blackwater, now known as Xe Services. That’s X-e.

Last Thursday, Judge Urbina dismissed the charges against the five Blackwater guards, saying US Justice Department prosecutors had built their case on sworn statements that the guards had given under a promise of immunity. He said the government’s explanations were, quote, “contradictory, unbelievable and lacking in credibility.”

Defense lawyers called the decision, quote, “tremendously gratifying” and said it invigorated their belief in the American court system.

Meanwhile, General Ray Odierno, the American commander in Iraq, said he understood that people would be upset by the decision, but added, quote, “the bottom line is, using the rule of law, the evidence obviously was not there, or was collected illegally.”

Well, for more on this, I’m joined here in New York by attorney Scott Horton. He is a contributor to Harper’s Magazine, an international law expert.

Welcome to Democracy Now!

SCOTT HORTON: Good to be with you, Amy.

AMY GOODMAN: Were you surprised, Scott?

SCOTT HORTON: Well, we knew this was going to be an issue. I think it was surprising that we got a decision before any evidence was ever taken and it went to trial. And in fact, you know, I think the vehemence of Judge Urbina’s decision is also something of a surprise.

AMY GOODMAN: Well, explain exactly what it was he decided and what it was he was objecting to.

SCOTT HORTON: Well, first of all, I should note that General Odierno’s statement is completely incorrect; that is, the decision to dismiss these charges had nothing to do with lack of evidence or weak evidence against the Blackwater employees. To the contrary, there was copious evidence. There was plenty of evidence prosecutors could have used that they evidently weren’t prepared to, including eyewitnesses there. The decision to dismiss was taken as a punishment measure against Justice Department prosecutors based on the judge’s conclusion that they engaged in grossly unethical and improper behavior in putting the case together.

And specifically what they did is they took statements that were taken by the Department of State against a grant of immunity; that is, the government investigators told the guards, “Give us your statement, be candid, be complete, and we promise you we won’t use your statement for any criminal charges against you.” But the Justice Department prosecutors took those statements and in fact used them. They used them before the grand jury. They used them to build their entire case. And they did this notwithstanding warnings from senior lawyers in the Justice Department that this was improper and could lead to dismissal of the case. It almost looks like the Justice Department prosecutors here wanted to sabotage their own case. It was so outrageous.

AMY GOODMAN: Do you think that’s possible?

SCOTT HORTON: I think it is possible. Specifically in this case, there were briefings that occurred on Capitol Hill early on in which senior officials of the Justice Department told congressional investigators, staffers and congressmen that essentially they didn’t want to bring the case. In fact, one of the congressmen who was present at these briefings told me they were behaving like defense lawyers putting together a case to defend the Blackwater employees, not to prosecute them. And I think we see the evidence of that copiously in Judge Urbina’s opinion.

AMY GOODMAN: I want to play a clip of Dr. Jawad, who lost both his wife, Mohasin, and his son, Ahmed, in the Blackwater shootings on September 16, 2007. In this excerpt, we hear Dr. Jawad describing how he came to learn of what had happened to his family. He had been waiting that day for his wife and son to pick him up from work. He was a doctor. When he returned home alone that afternoon, he was worried not to find them there. He called his brother, who went to the morgue after failing to find them at the emergency room and operating theater of a local hospital. Dr. Jawad is being translated from Arabic.

DR. JAWAD: [translated] He went to the morgue, and the person who was responsible for the morgue told him that they received sixteen bodies as casualties from the incident that day. They were all identified, identifiable, except for two. Two bodies completely burnt and disfigured. They were put in black plastic bags.



My brother, on that day, in the morning, he was in the hospital, and he heard the shots, and he heard helicopters and shooting from helicopters. It was a battle, a fight, a war. And, of course, it didn’t occur to him that my wife and my son were the victims — among the victims of the incident. My wife, what remained from his head is only the jaws and part of the neck. I identified her from the dental bridge, has a lot of dental bridge. And my son, what remained from his clothes was only part of the shoes and socks.

AMY GOODMAN: Dr. Jawad, talking about what happened to his wife and his son, as they were gunned down in Nisoor Square by the Blackwater operatives. Now the case against them has been dismissed. Scott Horton, can another case be brought against them?

SCOTT HORTON: Absolutely. In fact, this decision puts the US in breach of its treaty obligations to prosecute this case, which was an absolute international law obligation. Now, this case was being prosecuted in US court because of an order that was issued by the US occupation authorities that granted these people immunity from Iraqi criminal prosecution and accountability.

And I think the rule of international law is quite well settled. If the US cannot, for technical reasons — that’s this ruling here, it is purely technical, has nothing to do with the merits of the case — if the US cannot, for technical reasons, prosecute the case, the US is really obligated to waive the immunity under that order and surrender these individuals to the Iraqi authorities for prosecution, probably with an agreement as to what charges will be brought and an agreement that any prison term they were sentenced to could be served in the United States.

In addition to that, there’s also the possibility, that was alluded to in the setup here, for a civil action, and civil claims on behalf of the families of the victims are already pending in US courts. And the Iraqi government has now announced it’s going to directly support those claims.

AMY GOODMAN: What about the civil lawsuit that’s been brought against the Blackwater guards?

SCOTT HORTON: Well, that will be for damages. And the evidence of their culpability is quite overwhelming. You know, one of the surprising things about this case before Judge Urbina is that the prosecutors were developing their entire case based on the statements that had been issued by the guards. Well, they didn’t need to do that. There were dozens of eyewitnesses in Iraq who were only too happy to come forward and testify about what happened and what was seen. And there was an incredible amount of forensic evidence of what occurred that day. So there’s plenty of evidence to be used. Plus, of course, in a civil suit, the standard for liability is a lower standard. It’s not beyond a reasonable doubt; it’s rather by preponderance of the evidence.

AMY GOODMAN: I wanted to read for you an excerpt of a Wall Street Journal editorial that talks about this being another instance of “gross prosecutorial misconduct, as abusive Justice lawyers went after an unsympathetic political target…

“Something is rotten in the culture of Justice, leading ambitious” — it says — “ambitious government crusaders to think they can get away with flouting due process when the political winds are blowing hot. Congress and the press corps may be too politically implicated to police this prosecutorial malpractice, so it may be up to the judiciary to apply more stringent sanctions.”

SCOTT HORTON: I think, as we go back and look at this past decade, one of the things that marks it is exactly what the Wall Street Journal is talking about here. It was a decade of gross prosecutorial abuse. We saw lawyers at the US Department of Justice issue opinions attempting to justify torture and mistreatment of prisoners. That was adopted as a legal mantra of the department. We saw hundreds of politically motivated prosecutions being brought, one of which is already withdrawn. That was the prosecution of Senator Stevens of Alaska. But we have the Siegelman case, the Paul Minor case, many others, where notwithstanding now overwhelming evidence of misconduct by prosecutors, the Justice Department standing its ground. We have the Broadcom case only a few weeks ago, in which a judge out in California also found that there was gross prosecutorial abuse. And now this case.

It’s really quite a mountain of evidence now pointing to serious misconduct by Justice Department prosecutors. And there’s very little evidence — although most of this occurred on the watch of the Bush administration, there’s very, very little evidence that Eric Holder has realized the gravity or severity of the situation or taken any appropriate measures to deal with it.

AMY GOODMAN: What about the US continuing to work with Blackwater, now called Xe, X-e? You have just this latest news of two government — Blackwater operatives reportedly killed last week at the CIA base in Afghanistan.

SCOTT HORTON: Well, that’s right. In fact, I would note that one of the statements the Iraqi government made in response to this was that even though Blackwater was no longer formally a contractor in Iraq, they found that many of the Blackwater employees had simply recontracted with the new contractors there, so they were still in place. And the Iraqi government said that’s completely unacceptable.

Well, the problem is that the US has not changed its pattern of heavy reliance on private security contractors. If anything, we’re actually seeing that reliance increase in connection with the operations in Afghanistan. And in fact, there are only a handful of qualified and authorized service providers. So Blackwater, almost by definition, is going to continue to hold a large part of these contracts as they’re awarded, not with — this is notwithstanding promises that were made by Hillary Clinton, when she was running for president, to terminate the Blackwater contracts. I mean, now she is Secretary of State, and Blackwater is still the principal security contractor to the State Department.

AMY GOODMAN: In this issue, you’ve written about “graymailing”?

SCOTT HORTON: That’s exactly right. There’s obviously a far-reaching criminal investigation going on into Blackwater right now, two grand juries that have been impaneled. And we saw this recent interview of Erik Prince’s with Vanity Fair in which he’s suggesting that he will spill the beans on all sorts of delicate state secrets involving the CIA and JSOC, which is the Special Operations Command of the military, if criminal cases are brought against him and his company. So this is a classic case of graymailing, which I think points to the foolishness at the outset of entrusting to a private company some of the most secret and most confidential matters of the nation’s intelligence community.

AMY GOODMAN: Well, I want to thank you very much, Scott Horton, for being with us. Welcome to our new studios. It’s great to have you here. Scott Horton, New York attorney specializing in international law and human rights, also a legal affairs contributor to Harper’s Magazine, where he writes the blog “No Comment.”