APRIL 12, 2015
Emails Reveal Discord Over Blackwater Charges
By MATT APUZZO
WASHINGTON -- As prosecutors put the finishing touches on the 2008 indictment  of Blackwater security contractors for a deadly shooting in Iraq,  the F.B.I. agents leading the investigation became convinced that political appointees in the Justice Department were intentionally undermining the case, internal emails show.
The F.B.I. had wanted to charge the American contractors with the type of manslaughter, attempted manslaughter and weapons charges that could send them to prison for the rest of their lives for the shooting,  which left more than a dozen Iraqis dead and many others wounded in September 2007.
But at the last minute, the Justice Department balked. In particular, senior officials were uncomfortable with bringing two machine-gun charges, each of which carried mandatory 30-year prison sentences.
"We are getting some serious resistance from our office to charging the defendants with mandatory minimum time," Kenneth Kohl, a federal prosecutor, told the lead F.B.I. agent on the case, John Patarini, as the Justice Department prepared to ask a grand jury to vote on an indictment in December 2008.
Mr. Patarini was incensed. "I would rather not present for a vote now and wait until the new administration takes office than to get an indictment that is an insult to the individual victims, the Iraqi people as a whole, and the American people who expect their Justice Department to act better than this," he replied.
The disagreement foreshadowed an argument that will play out in a federal court on Monday, when four former Blackwater contractors are scheduled to be sentenced.
Federal prosecutors ultimately agreed to bring one machine-gun charge, but not two. Now it is the Justice Department, despite initial reservations, that is arguing strenuously for sentences that amount to life in prison. Four men -- Dustin L. Heard, Evan S. Liberty, Nicholas A. Slatten and Paul A. Slough -- were convicted at trial in October. 
"The crimes here were so horrendous -- the massacre and maiming of innocents so heinous -- that they outweigh any factors that the defendants may argue form a basis for leniency," federal prosecutors wrote in court documents last week.
The emails obtained by The New York Times offer a look behind the scenes of the Blackwater case, providing a glimpse of the pitched arguments and distrust that troubled one of the highest-profile international investigations in recent memory.
Seventeen people were killed and many others were wounded when Blackwater security contractors opened fire with machine guns and grenade launchers into Baghdad's crowded Nisour Square. The shooting was a nadir in the Iraq war, strained relations between Washington and the new government in Baghdad, and brought to global attention the trend toward privatizing some American security operations in combat zones.
The machine-gun charge was contentious because it was written during the crack cocaine epidemic as a way to curb the use of automatic weapons. Defense lawyers argued at the time -- and continue to argue today -- that the law was intended to deter gang members from carrying machine guns, not to be used against American contractors who were required by the State Department to carry them in a war zone. They have asked a judge not to impose the 30-year sentence, arguing that it is unconstitutionally severe since the contractors had no choice but to carry the weapons.
After receiving the prosecutor's email in 2008, Mr. Patarini forwarded it to colleagues and superiors, igniting a flurry of angry responses, many of which were sent to the Justice Department. Without the machine-gun charges, the agents argued, the contractors would most likely face five to seven years in prison.
"I think of Mohammad and his son every time they pull the rug a bit further out from under us," one agent, Thomas O'Connor, wrote. He was referring to an Iraqi man, Mohammed Hafedh Abdulrazzaq Kinani, whose 9-year-old son, Ali, was killed.
Andrew McCabe, an F.B.I. supervisor, took the grievances to his boss, John Perren, saying the Justice Department was "delaying and reducing" the indictment. "This is the latest in what has become a troubling habit by D.O.J.," he wrote. He encouraged top F.B.I. officials to press their case.
It is not clear what ultimately persuaded the Justice Department to proceed with the machine-gun charge. J. Patrick Rowan, the Bush administration's top national security prosecutor at the time, was "uncomfortable" with the charge, the emails say. Mr. Rowan, now in private practice, would not discuss the deliberations. But he said he had never felt political pressure to limit the charges.
Until the Nisour Square shooting, Blackwater was America's most prominent and politically powerful security contractor, with more than $1 billion in government contracts. The company was a major donor to the Republican Party, and its founder, Erik Prince, was a favorite target for Democratic criticism. Though the emails do not indicate any political influence in the case, investigators clearly believed that the incoming Obama administration would be more willing to bring the machine-gun charges against the Blackwater contractors.
"I would rather wait for a new administration than go forward without those charges," Carolyn Murphy, an F.B.I. agent, wrote.
And Michael Posillico, a State Department investigator assigned to the case, said, "It's hard for me to say we should wait for the Democrats, but this is one such time I have to."
Through a spokesman, the F.B.I. agents declined to comment on the emails. Mr. Patarini, who is now a private security consultant, recalled that frustration had been building within the F.B.I. team because the Justice Department had previously refused to bring charges of second-degree murder against the Blackwater guards and would not charge other Blackwater employees with lying, charges the agents believed were warranted.
"Those were our thoughts back then and still mine today," he said in an email.
After the indictment, the case faced problems and accusations of prosecutorial misconduct and was nearly lost. Then prosecutors missed a filing deadline and let the statute of limitations expire against Mr. Slatten. So he alone was charged with and convicted of murder, which has no statute of limitations. The others were charged with several counts of manslaughter, attempted manslaughter and one count each of using a machine gun in a crime of violence.
The Justice Department is seeking sentences of 57 years for Mr. Slough, 51 years for Mr. Liberty, 47 years for Mr. Heard and life in prison without parole for Mr. Slatten.
Echoing the emails from nearly seven years ago, the Justice Department said the sentences would "hold the defendants accountable for their callous, wanton and deadly conduct, and deter others wielding the awesome power over life or death from perpetrating similar atrocities in the future."