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United States v. Slough

November 16, 2009

UNITED STATES OF AMERICA
v.
PAUL A. SLOUGH ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 141

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE EFENDANTS'MOTION FOR AN ORDER REQUIRING SECURITY MEASURES FOR THE DEFENSE TEAM'S PRETRIAL INVESTIGATION IN IRAQ

I. INTRODUCTION

This matter is before the court on the defendants' motion for an order requiring the government to provide security measures for the defense team's pretrial investigation in Iraq. The defendants contend that such measures are necessary to permit their counsel to properly investigate this case, which arises out of a shooting incident that occurred in Baghdad, Iraq. The defendants, who have never asserted an inability to finance their own security measures, have offered to reimburse or defray the government for the cost of providing such security measures. The government opposes the motion, noting that it has already provided the defendants with a list of private security companies licensed to operate in Iraq and that are principal providers of security services for U.S. government personnel in Baghdad. Furthermore, the government argues that this court lacks the authority to order the U.S. military to divert personnel and other resources from its current mission in Iraq to provide security to the defense team.

Because the defendants have not demonstrated that the private security companies identified by the government cannot ensure the safety of the defense team, the court denies their request for an order requiring the government to provide security measures. The court, however, grants the defendants' request that the government provide updated contact information for victims and witnesses in this case because there is a compelling need for the disclosure of such information.

II. FACTUAL AND PROCEDURAL BACKGROUND

The defendants were security guards employed by Blackwater Worldwide ("Blackwater"), a private company that provided security services to U.S. employees operating in Iraq. On September 16, 2007, the defendants were part of a Blackwater Tactical Support Team called "Raven 23," whose function was to provide back-up fire support for other Blackwater personal security details operating in Baghdad. Around noon on that day, the Raven 23 convoy was involved in a shooting incident at the Nisur Square traffic circle in downtown Baghdad, which resulted in the death and injury of numerous Iraqis. The government contends that the dead and wounded were the victims of unprovoked violence by the defendants. The defendants maintain that they came under attack by insurgents and that their actions were a reasonable response to a mortal threat.

It is undisputed that to prepare a defense to the charges levied by the government, defense counsel must conduct a pretrial investigation in Iraq. Defs.' Mot. at 4-5; see generally Govt's Opp'n. The events underlying this prosecution occurred in Baghdad, and many of the witnesses in this case, including eyewitnesses, alleged victims and their family members, are located in Iraq. Defs.' Mot. at 4-5. Indeed, government prosecutors and investigators have traveled to Iraq on several occasions to investigate and gather evidence in connection with this case. Id. at 3-4.

It is equally undisputed that present-day Baghdad remains a highly dangerous place. Id. at 3; see generally Govt's Opp'n. This danger is only magnified for the defense team, given the notoriety of the Nisur Square shooting among the residents of Baghdad and the disdain with which the defense team's cause is likely to be viewed by some in that city. Defs.' Mot. at 5.

In June 2009, defense counsel notified the government of their intention to send a defense team to Iraq for the purpose of collecting information and interviewing witnesses. Decl. of Mark J. Hulkhower ("Hulkhower Decl."), Ex. 1. Defense counsel requested that the government provide security measures to the defense team during their investigation. Id. In subsequent correspondence, defense counsel also requested contact information for individuals identified by the government as victims and witnesses in its Brady disclosures, as well as a point of contact at the U.S. Embassy in Baghdad to help facilitate the investigation. Hulkhower Decl., Ex. 3. Discussions regarding these issues continued through the summer of 2009. See Defs.' Mot. at 5-8.

During an August 6, 2009 status conference, defense counsel advised the court that they were in ongoing discussions with the government regarding the provision of security. Id. at 7. Counsel indicated that they were hopeful the matter could be resolved without the court's intervention. Id. Over the following weeks, however, the parties were unable to reach an agreement on the security issue. Id. at 7-8. Advised of the impasse, the court contacted Jeh Charles Johnson, General Counsel of the Department of Defense ("DOD"), who graciously agreed to participate by teleconference in a hearing held on September 14, 2009, during which the parties voiced their positions on the security issue. Id. at 8.

On September 30, 2009, the prosecution team forwarded to defense counsel a letter from the DOD's Office of General Counsel. See Hulkhower Decl., Ex. 7 ("the September 30 Letter"). The September 30 Letter stated that as an accommodation to the concerns expressed by the court during the September 14 hearing, the Office of General Counsel was providing

a list of private security contractors who, according to officials from the Multinational Force-Iraq (MNF-I): (1) are licensed by appropriate Iraqi officials to provide personal security services in Iraq; (2) have obtained arming approval as required by applicable MNF-I order; and, (3) perform personal security services ...


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