Defense attorneys for Blackwater Worldwide employees are trying to head off Justice Department charges against the company's bodyguards who were involved in the shooting deaths of 17 Iraqi civilians one year ago.
In a meeting with prosecutors Tuesday, the Blackwater guards' legal team outlined legal and factual reasons they thought the Justice Department would lose at trial if the men are indicted, three people close to the investigation said. They spoke on condition of anonymity because of the sensitivity of the continuing investigation.
Prosecutors agreed to take Blackwater's argument into consideration but did not indicate whether they would continue to pursue charges or drop the case. The company itself is not a target of the investigation and has pledged to cooperate with the probe.
Justice Department spokesman Dean Boyd refused to comment.
For months, a federal grand jury has been investigating the fatal shooting of the civilians, including several young children, in Baghdad's Nisoor Square on Sept. 16, 2007. As few as three bodyguards have been targeted for prosecution, according to lawyers close to the case.
Blackwater has played down suggestions that indictments could hurt the company.
In an interview with The Associated Press in July, Blackwater president Gary Jackson predicted that charges would have few negative effects.
"Our Internet sales will go through the roof," Jackson quipped. "There will be more people on our Web site than you can shake a stick at. And guess what? We're going to weather that one, too."
Blackwater maintains its convoy was under attack before it opened fire in self-defense. Follow-up investigations by the Iraqi government and the U.S. military, however, concluded that Blackwater's men were unprovoked.
Meanwhile, the government's investigation has hit several legal snags, chief among them promises of limited immunity to the guards.
That issue was one of Blackwater's top defenses Tuesday, with lawyers arguing that the Justice Department investigation may have been influenced by information gathered during an initial probe by the State Department immediately after the shootings. The State Department agreed that the bodyguards' statements would be used only internally, not for criminal prosecutions.
That means the statements could not be used at trial, which has forced prosecutors to build a case on other evidence from a crime scene that was then weeks old.
Additionally, the Blackwater attorneys argued that the Justice Department would be unable to prove it has jurisdiction to bring criminal charges.
Blackwater and other contractors operate in a legal gray area. They are immune from prosecution in Iraqi courts. If the Justice Department wants to bring criminal charges such as assault, manslaughter or murder in a U.S. court, prosecutors would have to do so under the Military Extraterritorial Jurisdiction Act.
That would require the government to show that State Department contractors were "supporting the mission of the Department of Defense overseas." Blackwater, however, claims that its contract guarding diplomats was a purely a State Department function, one independent from the Pentagon.
That could give Blackwater the legal cover it needs to avoid charges against its employees.
In a test case last month, a former U.S. Marine accused of war crimes in Iraq was acquitted on federal manslaughter charges. The civilian jurors said later the case should have been tried in a military court because they had no combat experience.
Democratic Rep. David Price is seeking to close the law's loophole, but in a statement this week he blamed unidentified senators and Bush administration officials for blocking his efforts.
Human rights advocates said they were outraged that even after a year, the government so far has failed to charge the bodyguards.
"A year later, we are still waiting for justice in this case," said Larry Cox, executive director of Amnesty International USA. "Robust protections must be in place to guarantee that personnel are held accountable for indiscriminate shootings and killings of civilians."
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Matt Apuzzo reported from Cooke City, Montana.
