I’m going to tell you a story, but before I do, I want to be very clear. Presidents should not pardon Americans guilty of war crimes. I agree with every word of the tweet below, from retired general Martin Dempsey:
Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us. #Leadership
— GEN(R) Martin E. Dempsey (@Martin_Dempsey) May 21, 2019
Note the key caveat in his condemnation of pardons. “Absent evidence of innocence or injustice,” they’re improper. But what if there is evidence of injustice? What if there is copious evidence of innocence? Then a pardon isn’t just proper, it may well be indispensable to achieving justice.
I’m speaking of four Blackwater contractors — Paul Slough, Dustin Heard, Evan Liberty, and Nicholas Slatten — the men of a team called Raven 23. They were tasked with defending American diplomats at the height of the Iraq War. And I’m speaking of one of the most notorious incidents in all of Operation Iraqi Freedom, the alleged “massacre” in Nisour Square on September 16, 2007.
I deployed to Diyala Province in Iraq two months after the incident, and already a certain narrative had been established. American “mercenaries” panicked in a crowded traffic circle and unloaded their weapons into innocent civilians without provocation. The Iraqi government wanted them tried for murder. The American government had launched an investigation, and there seemed to be only one just outcome — prison for the men who killed the innocent.
It wasn’t until later, much later, that I began to seriously question the narrative. I read that the charges against the men were initially dismissed. An appeals court reversed, and they were tried and convicted. An appeals court threw out their sentences and one of their convictions. Then there was another trial of a single contractor, Slatten, that ended in a mistrial. He was tried again, for a third time, and convicted of murder. Why was this all so hard?
The government’s theory of the case is simple. Shortly after a car bomb attack in Baghdad, the men of Raven 23 (a “four-vehicle, 19-man Blackwater convoy”) traveled to Nisour Square and halted traffic. At that moment, Slatten — a man who allegedly hated Iraqis — decided to murder an innocent civilian in cold blood. He shot the driver of a white Kia sedan.
Driverless, the car drifted forward toward the convoy. Iraqi police officers moved to the car and tried to signal to the convoy not to fire, but as the car continued to drift, multiple members of the convoy panicked and began unloading their weapons into the Kia and then into the square. Some allegedly fired “blindly.” Others allegedly precisely targeted obviously innocent Iraqis for death.
Somehow, in the melee, one of Blackwater vehicles was disabled — perhaps by their own weapons, so carelessly did they fire. It’s a chilling portrait of veteran former soldiers (each of the contractors previously served in the military) losing their cool under stress and committing, in essence, mass murder.
It’s an unlikely scenario. Why the collective panic? Why the apparent bloodlust? But students of war will recognize the phenomenon. There are times when troops will go on killing sprees. Remember My Lai? In fact, there are those who called the Nisour Square incident the “My Lai massacre of Iraq.”
It’s a compelling case, but it has problems — serious problems. Let’s begin with the first and most obvious. No one denies that the first shots were fired at a white Kia sedan, but the circumstances of that shooting matter greatly. According to the defense, Slatten did not fire at the Kia in cold blood. Instead, a different defendant, Paul Slough, repeatedly confessed to shooting the Kia from his turret. Iraqi witnesses corroborated his account.
And why did he shoot? Because the Kia “punched forward” toward the convoy despite repeated warnings to stop. Moreover, the vehicle matched the description of a suspected car bomb. It was not a car bomb, but the first shots weren’t an act of premeditated murder but instead a tragic but common mistake in the Iraq conflict — the product of insurgent tactics and the terrible confusion of war.
In fact, during my deployment a young soldier in our unit faced exactly the same scenario. Except instead of a white Kia, the vehicle was a white Bongo truck. The truck matched the description of a truck on our BOLO (be on the lookout) list, and it sped toward one of our combat outposts despite repeated warnings to stop. One of our soldiers fired. He killed an innocent farmer with one shot. The truck turned over and killed every single sheep the farmer owned. In one tragic moment, a family was rendered fatherless and destitute.
It was horrible. The soldier was devastated. But we never even thought of prosecuting him. He followed the rules of engagement. Al-Qaeda placed him in that terrible position. Al-Qaeda used civilian vehicles to attack American troops, and al-Qaeda tried to hide in the civilian population. If we were going to prosecute that soldier, we’d have to prosecute hundreds of Americans who made similar life-and-death choices under similar amounts of duress.
And so, if Raven 23’s account was correct, none of its team members violated the law when they fired on the white Kia. It was just another dreadful incident in a dreadful war — an incident ultimately caused by our enemy’s lawless tactics.
But that only accounts for the Kia. What about the volley of fire that followed? According to Raven 23, the convoy then began to take incoming fire. In fact, in their statements to State Department investigators following the shooting, the defendants described the perceived threat with precision. For example, Slough told investigators that
[a] white vehicle approached the team at a high rate of speed and would not stop despite his hand signals and throwing a water bottle. Other civilians tried to wave the vehicle down, but it still would not stop. [Slough] engaged and hit the driver. An Iraqi Policeman, wearing [a] blue button down shirt and black pants, began to push the vehicle towards [the] team. [Slough] engaged [the] vehicle a second time and [the] Iraqi Policeman ran away. [Slough] then witnessed muzzle flashes from a shack, returned fire, and hit the individual.
Slatten indicated that the convoy took small-arms fire from individuals along a tree line. He claimed to respond with two rounds, hitting one individual. Heard said he saw “muzzle flashes” and engaged an individual with small-arms fire and a grenade from his M203. Liberty said that the convoy began to receive fire from behind and that Iraqi police officers engaged the Americans. (The New York Times notes that witnesses said Iraqi soldiers “opened fire from a watchtower.”)
There was also a contemporaneous report from the convoy indicating that it was taking fire and — critically — that one of its vehicles was disabled. It suffered from obvious external damage, and it simply strains credulity to believe that trained soldiers would be so panicked that they disabled their own vehicle with their own weapons.
Moreover, the first American to arrive at the scene, Captain Peter Decareau, not only reported that Iraqis corroborated the team’s account of the Kia driving toward the convoy, he also took pictures of bullet casings located by an area where the team reported taking fire. This evidence was withheld from the defense until the 2014 trial, an error the prosecution blamed on “a series of innocent oversights.”
The defense does not, however, argue that every member of the team behaved responsibly. Team member Jeremy Ridgeway pled guilty to firing unjustified shots into the white Kia and into a white Chevrolet Celebrity. But there is an immense difference between prosecuting a panicked volley of fire following a cold-blooded murder and prosecuting contractors for individual targeting decisions made in the midst of a live firefight. The former represents proper accountability for a war crime. The latter places men under fire in an impossible position, especially when insurgents dress like civilians and sometimes even pose as members of the Iraqi police.
While the events of September 16, 2007, are still shrouded by the fog of war, what happened next is crystal clear. The Iraqi police — not the FBI — took immediate charge of the investigation. The defense believes that the Iraqi police officer in command of the investigation may have insurgent ties, but I have not been able to verify that claim. At any rate, after Iraqi police involvement, witness accounts coalesced into a unified tale of a terrible massacre.
The FBI didn’t arrive until weeks later. There was no classic crime-scene investigation. The square had been swept clean by the time American professionals were able to investigate. There were no autopsies of the victims and no opportunity to examine their fatal wounds. Yet this was not the end of the irregularities, not by a long shot.
On December 31, 2009, United States District Court Judge Ricardo Urbina dismissed the government’s initial case against Slough, Heard, Liberty, and Slatten — citing the government’s comprehensive, unconstitutional use of compelled statements against the defendants. The Iraqi government was outraged. Our system of independent courts and constitutional protections was alien to Iraq, and many Iraqis presumed that the dismissal was ordered from on high. There is extensive record of internal State Department correspondence about Iraqi demands that the Department of Justice appeal the dismissal.
The DOJ did appeal, and the D.C. Circuit reversed; the government brought a new case presumably free of the unconstitutional taint of its first effort, and in 2014 it secured a conviction — Slough, Heard, and Liberty were found guilty of voluntary manslaughter, attempted manslaughter, and using a firearm in relation to a crime of violence — with the steep sentence due to federal weapons charges. Essentially the jury found the men guilty of a crime for using the precise weapons they were required to carry as part of their diplomatic protective mission.
Slatten was found guilty of first-degree murder for allegedly shooting the driver of the white Kia in cold blood, but the trial court did not permit the jury to hear evidence that another person, Slough, had repeatedly confessed to firing the fatal shots. So while the prosecution was able to introduce evidence that Slatten supposedly hated Iraqis and wanted “payback for 9/11,” the defense was not able to introduce evidence that Slough said he fired first.
In 2017, the D.C. Circuit weighed in again. It reversed Slatten’s conviction and remanded his case for a new trial, holding that the jury should have heard Slough’s admission that he fired the first shots. The court also found that the 30-year sentences against Slough, Heard, and Liberty were “grossly disproportionate to their culpability for using government-issued weapons in a war zone” and therefore violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
So the case against Slatten went back down again to the trial court, and in the summer of 2018, the DOJ tried again to convict Slatten. The jury could not reach a verdict. So, in October, the government tried Slatten for a third time. In December a federal jury found him guilty.
Make no mistake, this case is complicated. Between three trials, multiple court decisions, and hundreds of pages of briefs, examining the facts is like peeling an onion of complexity and confusion. But there are a few bottom-line conclusions that stand out.
Slatten sits in prison for a shooting that another American has admitted to, repeatedly. He sits in prison for a shot that even Iraqi witnesses say he didn’t take. The best evidence that he did take the fatal shot came not from eyewitnesses but from people who claim they heard Slatten shoot first. Given the weight of the evidence I’ve reviewed, the jury’s verdict is mystifying.
But hovering over all the proceedings is this terrible fact: All four Americans face convictions after an Iraqi-led investigation. The Iraqis collected the great bulk of the evidence. They interviewed witnesses and coordinated their stories. Lawyers for Slatten claim the FBI couldn’t even independently identify the witnesses or the victims. These facts alone should render the prosecution suspect. While there were good and brave Iraqi police officers, there is simply no comparison between Iraqi and American police techniques — especially in the midst of a shooting war.
Finally, each of the Raven 23 defendants has suffered repeated violations of his constitutional rights. From the initial misuse of compelled statements to the imposition of cruel and unusual punishments to the unfair trial that deprived Slatten of his best defenses, the government has time and again overstepped its legal bounds.
There is little question that a pardon would be diplomatically difficult. There is an ironclad belief in much of Iraq that Blackwater contractors committed a massacre. But no American should sit in prison to appease an ally. It may well be politically problematic as well. Americans have long cast aspersions on the “mercenaries” who fought alongside regular troops in Iraq, and many have also presumed that the Iraqi narrative of the Nisour Square massacre is true and that it represents one of the most shameful incidents of the Iraq War.
Moreover, the fact that the Raven 23 defendants have been lumped together in pardon considerations with a number of different men who face punishment for very different incidents has done them no favors. There is now a perception that President Trump is on the verge of a series of “war-crimes pardons,” and Nisour Square represents yet another of those crimes. But each case is different. Pardons may be appropriate for some others or perhaps no others. They should be examined on their own merits.
But here, in this case, there is strong evidence of a prosecution gone awry. It’s time for the president to step in to correct a miscarriage of justice. It’s time to pardon the men of Raven 23.
Something to Consider
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