America should have hanged its collective head in collective shame when four of her fine and brave citizens were sentenced to lengthy prison terms by the United States District Court for the District of Columbia for using deadly force in Iraq against a real and determined enemy. Late yesterday, 22 December 2020, President Trump pardoned these men. Many in academia, the media and elsewhere will harp about this without the slightest inkling of what actually happened in Baghdad back in September 2007. As one of the defense’s initial use of force experts, I had access to grand jury testimony and physical evidence. What I saw made me lose a lot of faith in the US Department of Justice, the District Court for the District of Columbia and the US Army.
The government’s case against Nicholas A. Slatten, of Sparta, Tenn. (who received a sentence of life imprisonment); Paul A. Slough, of Keller, Tex.; Evan S. Liberty, of Rochester, N.H.; and Dustin L. Heard, of Maryville, Tenn. (each receiving 30-year sentences) was largely predicated on the allegedly large number of rounds these individuals fired in self-defense. Such a number is misleading for many reasons, not the least of which is when contrasted to the 183 rounds the FBI once fired at four bank robbers in New Jersey … hitting one suspect 65 times … and our Federal judiciary subsequently determined that shooting to be reasonable. The government afforded no such latitude to these four members of Blackwater Team Raven 63, who were serving on a Personal Security Detachment (PSD) for the Department of State in a hotly contested war zone in September 2007.
On reading this article, it will become obvious the degree to which I rely on the scholarship and writings of two retired Supervisory Special Agents of the Federal Bureau of Investigation: Urey Patrick and John Hall. Their seminal book – In Defense of Self and Others: Issues, Facts & Fallacies – The Realities if Law Enforcement’s Use of Deadly Force – should be mandatory reading for any person purporting to be either an expert or investigator of a deadly force encounter. Beautifully written, it accurately sets for the law and tactical dynamics of use of force encounters and dispels many of the myths extant in so-called “expert’s reports” and charging documents. It is obvious that neither the prosecutors nor the trial judge availed themselves of such readily available scholarship in reaching their respective decisions to prosecute and sentence the four defendants. The jury itself, except for one brave woman who hung it for eight weeks last Fall, chose to decide the case as one of “four white men shooting people of color.” This is exactly why the government chose to try the case in the District of Columbia instead of Northern Virginia, where the defendants could have received a fair trial.
In 1994, as a young Trial Defense Counsel in the Army’s Judge Advocate General’s Corps, I was detailed by the Regional Defense Counsel to represent an Army CID Special Agent, who the Army had charged with Attempted Murder as the result of his use of deadly for in the line-of-duty. The Army’s decision in that case, too, was predicated on the seemingly excessive number of rounds fired.
Despite the fact that I had previously been a sworn law enforcement officer in a large metropolitan area and had used deadly force in the line-of-duty, due to my ignorance of the tactical dynamics and law surrounding such encounters, I felt woefully unprepared professionally to represent my client. Therefore, I petitioned the Army Court to authorize my travel to the FBI Academy in Quantico, Virginia, in order to adequately prepare for trial. My petition was granted and I had the profoundly fortunate opportunity to meet Supervisory Special Agent John Hall in Quantico. He subsequently educated me on many of the topics comprising his and Pat Patrick’s book.
The simple fact remains most military officers – even Colonels in the so- called “combat arms” who testified against the Blackwater defendants – simply “do not know what they do not know” when it comes to the tactical and legal dynamics of close-in killing environments. As such, much akin to some Chiefs of Police or Police Commissioners in civilian law enforcement cases, they superimpose their ill-founded notions of reasonableness in judging subordinates’ or others’ tactical actions in situations fraught with danger. Too often, politics instead of reason drive both the investigative process as well as the decision to prosecute officers.
In order to properly analyze any use of deadly force event, one must understand: (1) the authorities extant to use deadly force [I.e., “By what authority did a subject kill another?”]; (2) the proper standard of legal review; and, (3) the tactical dynamics of deadly force encounters. This article analyzes the facts and circumstances of the alleged killings at Nisur Square pursuant to this process. After so doing, as discussed in detail herein, I come to the following conclusions:
- The Blackwater PSD team members in the case at bar, as armed security officers of the Department of State were de facto and de jure agents of the Federal Government. Since their actions in self-defense were objectively reasonable pursuant to myriad cases applying the Graham v. Connor2 standard of reasonableness, the Defendants should have been afforded Qualified Immunity from pecuniary liability and, axiomatically, criminal prosecution.
- The Blackwater PSD team members reasonably acted in self-defense and defense of others under situations that were “tense, uncertain and rapidly evolving.” Based on the tactics, techniques and procedures (TTPs) of the insurgent threats at the time – using vehicle-borne improvised explosive devices, follow-on small arms fire3, and dressing in the uniforms of New Iraqi Army and Police uniforms – it was reasonable for the team to believe they were under imminent and actual threat of death or grievous bodily injury.
- The opinions of certain Government witnesses neither applied the appropriate legal standard of review nor expressed a meaningful understanding of the tactical dynamics of a deadly force encounter. They do what the Supreme Court of the United States repeatedly says a reviewer must not do: “The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight … the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”
Moreover, the opinions of the governments’ military officer witnesses misquoted and misunderstood the legal and tactical realities for military personnel in theater at the time. For example, in the Tactics, Techniques and Procedures Manual, Escalation of Force, Handbook 07-21, Center for Army Lessons Learned (July 2007), Page 48, uses the following example as an appropriate response to a suspected suicide vehicle-borne improvised explosive device (SVBIED) attack:
EOF Actual Operations Vignettes
Outer cordon/cordon and search mission: EOF by a unit in Iraq results in two civilians killed, two civilians injured, and no coalition forces injured or equipment damaged.
Summary: EOF by the unit was on the outer cordon for a cordon and search mission when a civilian vehicle approached and ignored shouts, vehicle horn, and flashed lights. The unit fired one shotgun round as a warning shot. The vehicle ignored the warnings and continued onward. The unit fired 13 to 15 rounds of 7.62-mm into the vehicle.
Screen Mission: EOF by a unit in Iraq results in two civilians killed, two civilians injured, and no coalition forces injured or equipment damaged.
Summary: The unit had an EOF incident while conducting screening for an explosive ordnance disposal (EOD) unit. While posted at an intersection, the patrol observed a vehicle traveling at an unusually slow speed coming toward the cordon from the north. Because of the sustained enemy contact over the preceding 30 minutes and the unusually slow speed of the vehicle, the unit suspected a possible suicide vehicle- borne IED (SVBIED). At 327 m, Marines shouted and used hand and arm signals in an attempt to stop the vehicle. At 260 m, the gunner fired three .50-cal (M2) rounds at the deck in front of the vehicle. At 175 m, the gunner fired ten .50-cal (M2) disabling rounds into the vehicle. The vehicle came to a stop. The driver jumped out of the car and ran to the west out of sight.
Within seconds of the engagement, a second vehicle heading from the same direction approached the cordon in the same manner. Again, the unit believed it to be a possible SVBIED and initiated verbal commands as well as hand and arm signals to attempt to stop the vehicle. At 250 m, the vehicle did not stop, and the gunner fired three warning shots of .50-cal (M2) rounds at the deck in front of the vehicle. The vehicle initiated erratic movements, stopping as if to turn around, and then continued south towards the cordon. At 190 m, the gunner fired three .50-cal (M2) disabling rounds into the vehicle. When the second round impacted, the vehicle immediately ignited and was almost instantly consumed by flames from the ensuing fire. The driver exited the vehicle prior to it being completely engulfed by flames, and ran away from the vehicle and out of sight.
So, testimony to the effect that the Blackwater units had to place themselves in more precarious positions in order to achieve mission success is wishful thinking vice sound tactical guidance. Moreover, such testimony ignored the tactical reality on the ground. Iraq – as exemplified by the two examples above in the Army’s own instructional manual – was not akin to the streets of Midtown Manhattan: it was a perilous place to operate. Nothing the Blackwater PSD did was unreasonable or excessive in light of this peril and the imminent threat they faced.
Lastly, the Military Extraterritorial Jurisdiction Act (MEJA) applies to contractors in support of the Department of Defense. Any plain reading of the Act demonstrates that to apply it to contractors in support of the Department of State, like the four Blackwater defendants, requires a legal hurdle of Olympian proportions. Yet, the government was rights-be-damned determined to pursue this prosecution for purely political reasons. Iraqis have been and continue to shoot, bomb and kill each other on an hourly basis. Yet, when four Americans shoot in self-defense, the pro-Mujahidin mafia screams murder and Barack Hussein Obama’s Justice Department replies with an indictment and vicious prosecution.
The relevant facts occurred on or about September 16th, 2007, in or near Nisur Square, a large traffic circle in a neighborhood just outside the International or “Green Zone” in downtown Baghdad. The Defendants – Paul Slough, Evan Liberty, Dustin Heard, and Nicholas Slatten – were armed security specialists employed by Blackwater Worldwide, a private company that, inter alia, provided security services to U.S. government agencies operating in Iraq, Afghanistan and other combat zones worldwide. The Defendants were detailed as a Personnel Security Detachment (PSD) for the Department of State were operating a convoy of vehicles, operating under as Blackwater Tactical Support Team with the radio call sign of “Raven 23.” Raven 23 was there to provide back-up fire support for other PSDs operating in Baghdad. The Raven 23 convoy comprised four vehicles. Defendants Liberty, Slough and Slatten were in the third vehicle with respective duties as driver, rear turret “gunner”5 and designated defensive marksman. In all, the PSD convoy members were armed in accordance with how any prudent PSD team in Iraq at that time to be armed. This would be a typical complement of defensive weapons for any competently armed US convoy operating in or about Bagdad in 2004-2011.
At Noontime, Raven 23 received a radio message that a VBIED had detonated in the vicinity of a compound where U.S. officials were meeting with Government of Iraq (GOI) officials. In response, the Raven 23 convoy took up a position in Nisur Square in order to secure an exfiltration route for the American officials, who were being guarded by another Blackwater PSD team. Soon after Raven 23 entered Nisur Square, at some point – whether actually a SVBIED or not – a civilian Kia automobile ignored repeated verbal and physical warnings to stay clear of the convoy.
At some point, certain members of the Blackwater PSD discerned that enough pre-assaultive behaviors were extant to justify the engagement of the Kia by small arms fire. Either concomitantly or shortly subsequent to this engagement, third-parties – either insurgents, civilians, Iraqi Police or a combination thereof – fired upon the Blackwater PSD. In the ensuing chaotic situation, which most likely and unsurprisingly involved the firing of hundreds of rounds of ammunition by all sides, it is alleged by the Government that numerous civilian noncombatants were killed or injured. There was no forensic evidence or other ballistic evidence whatsoever to tie any specific Blackwater PSD member’s duty weapon with any injury. In fact, there is a near-complete absence of proof as the existence of any of the number of bodies – except the few associated with the Kia – allegedly injured or killed in this event.6 Weeks after the incident, much like plaintiffs attorneys in the United States seeking prospective clients, Iraqi police and other Government of Iraq (GOI) officials made numerous radio, television and newspaper seeking the identity of alleged “victims” of the Nisur Square shootings.
This last point is relevant to the veracity of any complaint received, because Iraqis quickly learned to work the system in order to receive Solatia payments from the US Government. From fiscal years 2003 to 2006, DOD has reported about $1.9 million in Solatia payments and more than $29 million in condolence payments to Iraqi and Afghan civilians who are killed, injured, or incur property damage as a result of U.S. or coalition forces’ actions during combat.7 These payments are expressions of sympathy or remorse based on local culture and customs, but not an admission of legal liability or fault.
It should also be noted that just hours after the shooting, Special Agents assigned to the Department of State’s Diplomatic Security Service (DSS) directed that all members of the Raven 23 convoy submit to being interviewed at the State Department offices in the Green Zone. The interviews were supervised by Special Agent Theodore Carpenter and conducted by Special Agents Mario Rita, Lisa Lopez, Michael Scollan and David Motley. For a number of well- documented reasons, and in accordance with most Federal agencies’ own policies on investigating line-of-duty shootings, it is improvident to attempt to take a formal statement so soon following an incident:
- Contrary to popular belief, the most accurate statement may not be the one taken immediately following this type of incident. “The prevailing practice in law enforcement is to delay the official interview of the officer for some specified period of time after the event. This is strongly encouraged to provide a reflective interval for the officer to allow the distortioning effects of flight or fight to dissipate, and for the trained and professional mind to reassert itself and recall events and sequences more accurately.”8 While this is a matter subject to continuing research, the consensus amongst experts is that officers “experience perceptual and memory distortions during a critical incident, such as an Officer Involved Shooting.”
- The FBI’s – as well as most Federal agencies that mimic the FBI’s Shooting Incident Review Team (SIRT) policy – typically does not allow their special agents who are involved in a line-of-duty shooting to be questioned until at least twenty-four (24) hours post-incident. Moreover, their special agents are not to be questioned until they have been afforded the opportunity to speak with counsel, psychologist and chaplain (if they choose). Again, this is not obstructing justice, but rather intended to glean the most accurate account of what transpired. “Research indicates that “traumatic situations” inevitably result in some degree of memory impairment. The research suggests that officers may make more thorough and accurate statements if the interview is delayed at least 24 hours, and they get some sleep in the interim. Sleep helps integrate memories and facilitate both learning and memory.”
I point out these matters not as personal criticism of the DSS Special Agents involved, but rather to better explain (1) the Defendants’ decisions whether to make a full sworn statement at that time and (2) the questionable accuracy of all participant statements taken so soon after such an extremely stressful event. Any enlightened investigator would know of the perils of making a statement so soon after an event while under the obvious emotional and physical strain extant.
Also, politics rather than facts typically are behind such charges. In this incident, the fact that certain segments of the Government of Iraq were angered by alleged killings by US personnel should not serve as a basis for criminal indictment. Prosecutors should have the moral courage to ignore or resist such political pressure.
When criminal indictments and charges are instituted against a law enforcement officer for using deadly force, the impetus is predominantly political. The shooting incident was controversial in the public eye, inflamed segments of the community, and the filing of criminal charges is a political response to allay the emotional outrage of the affected activists. It is a politically driven act, not a public interest one – a refutation of the existence of a civil system of law designed and intended to deal with precisely such issues in which harm was done but without criminal elements.”
The same appears to be true here. The resultant investigation and indictment ignored exculpatory facts and leads, as well as the tactical dynamics of deadly force encounters in a combat zone. The Government seems to have utilized military officers who were not on the scene to offer their inexpert and irrelevant opinions as to the actions of Raven 23. In direct terms, at some point too early on, based on the extraordinary pressures being levied by the GOI and the perceived need to demonstrate authority under MEJA, authorities considered this a “bad shoot” and focused their investigation in that direction to the exclusion of other possibilities that make more tactical and legal sense. Hell, the FBI team “investigating” the incident did not show up until months later. And, when there, they required armed Marines and Soldiers as their PSD!
As discussed herein, the numbers of IED events were at a three-year peak in Iraq. The enemy insurgents’ uses of suicide vehicle-borne IEDs (VBIEDs) were a well-documented tactic, technique and procedure. The methods for discerning a potential VBIED were evolving at the time; but, at a minimum, verbal noncompliance, vehicular direction and “pacing” or “aiming” of a vehicle at a convoy were well-known pre-assaultive indicators. The suspect Kia vehicle presented all of these indicators, so it was objectively reasonable for the PSD team to engage the occupants of the Kia in order to abort any threat they posed to the convoy and its occupants (to include members of the PSD – neither the law nor reason expects law enforcement officers, security detachments or US service personnel to “take the first punch” in a fight).
Were the actions of the Blackwater State Department PSD on or about September 16th 2007 at or near Nisur Square, Baghdad, Iraq objectively reasonable in accordance with the state of art of defensive tactics and Constitutional legal standards?
Answer: Yes, as explained herein. Based on their actions, the Defendants – as a matter of law and right reason – are entitled to qualified immunity pursuant to well-established Constitutional and Common Law principles as enunciated by the Supreme Court of the United States.
If not, were their actions sufficient to sustain a charge of Manslaughter or any lesser-included offense?
Answer: Once an individual’s actions are determined to be objectively reasonable as a matter of law, the principles set forth under the law and doctrine of qualified immunity should shield them from criminal and pecuniary harm or suit. To state this as simply as I can, “It is my professional and personal opinion as an expert in the legal and tactical dynamics of deadly force encounters that the Defendants’ actions, individually and collectively, were objectively reasonable under the circumstances. Therefore, it is impossible for their actions to rise to any degree of criminality.”
Analysis and Discussion
There are myriad authorities for U.S. military forces to use deadly force, but in combat zones, they are primarily:
- Against a person or group that has been “Declared Hostile.” Such persons or groups will be identified in separate and classified rules of engagement (ROE) that is disseminated via the chain of command. Positive Identification (PID) is needed before engaging a target that has been Declared Hostile. For such engagements – exemplified by a Hellfire missile strike from Predator UAV in a preplanned or even hasty mission – a legal review is often done to ensure proportionality and all the Laws of War are met; and,
- In Unit or Self-Defense. Unit commanders and, nearly always, individuals, retain the inherent right and obligation to exercise self defense in response to a hostile act or demonstrated hostile intent. Unit self-defense includes the defense of other DoD forces in the vicinity. (See, CJCSI 3121.01B, Enclosure L (June 2005)
However, the Defendants were not a military force, as the Department of State’s mission is not military in nature, but diplomatic in nature. The missions of the Department of Defense and Department of State – often while both serving the interests of the United States in the same country – are completely distinct in their nature and scope. In fact, while teaching at the U.S. Army War College as a faculty member in the Department of National Security & Strategy (DNSS), we went to great lengths to educate our students – senior Colonels, civilians and multinational officers – the distinction between the four elements of power: Diplomatic, Information, Military, and Economic. This concept has been abbreviated into the acronym “D.I.M.E.” and as it relates to the Political, Military, Economic, Social, Information, and Infrastructure variables that describe the status of a situation (or state vector) DIME/PMESII.
The Department of State, through its Ambassadors and Foreign Service Officers in most countries, is responsible for the “D” or Diplomatic function. The Department of Defense is responsible for the “M” or Military function. The Defendants were civilian contractors working for the Department of State, not the Military. There mission was to provide security and defensive tactics for the Diplomatic mission in Iraq. The Defendants’ authority to use deadly force derived from that mission.
As such, the Defendants retained the authority to use Deadly Force under their Inherent Right of Self-defense and the Defense of Others: specifically those in the State Department they were assigned to protect and each other. This authority is nearly identical to the rule for the Use of Deadly force found in every local, state and Federal law enforcement agency’s training manual or instruction, as well as the authority of Diplomatic Security Service agents. Specifically, A special agent of the Diplomatic Security Service (DSS) may use deadly force only when necessary, that is, when the special agent has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the special agent or to another person. This right is analogous to the right enjoyed by all Americans, but specifically – as it relates to Raven 23’s mission – civilian law enforcement officers. It is for this reason that I will use the civilian law enforcement standard of “objective reasonableness” in reviewing the State Department’s Blackwater12 contract PSD team’s actions at or near Nisur Square in Baghdad, Iraq or on about September 16th, 2007.
While their actions are still objectively reasonable under this stricter Constitutional standard, I must point out that Baghdad, Iraq in 2007 was a vastly different, and far more fluid and dangerous, environment than are the streets patrolled by law enforcement officers here in these United States. For instance, the average cop in America does not have to worry about SVBIEDs, attack by mortar or rocket-propelled grenade (RPG), anti-tank rockets capable of penetrating even the armor of an Abrams tank, and, belt-fed machinegun fire. All of these attacks were peaking in Iraq in 2007. Nevertheless, absent such extremely dangerous threats, from 1993 to early 2011, FBI Special Agents fatally shot approximately 70 “subjects” and wounded about 80 others domestically. Pursuant to their own internal investigations, all of those episodes were deemed justified by the FBI.
Moreover, in foreign countries and combat zones like Iraq, there is a terrible and misguided tendency of investigators of such incidents to ignore the role and responsibility of the enemy or “bad guys.” For instance, if an al Qaeda in Iraq (AQI) force used human shields and fired upon the State Department convoy, and civilians were killed in the subsequent exchange of gunfire between AQI and the Blackwater team, then AQI should be held criminally responsible for any resultant death or injury. By analogy, if a team of bank robbers are caught “red handed” in the commission of their felony by an FBI team, the blame for death or injury to innocent others in an ensuing gunfight would be placed on the shoulders of the bank robbers not the FBI. The Government’s attempt to argue that the Blackwater/Department of State PSD’s actions at Nisur Square are analogous with the criminal responsibility born by armed gang members in an “Urban Gunfight” theory is severely misplaced. This is an unlawful application of what is known as the “felony murder rule.” It would be akin to charging the FBI agents in the following case with murder.
Insurgents in Iraq, then as now, use IEDs to cause politically unacceptable casualties anywhere and at any time. However, they can be used at a particular time and/or place in order to deny U.S. or coalition forces access to an area, deny them safe haven, disrupt logistics, or impede movement. They can also be used to assassinate key military, government, or civilian figures or to target a particular group or organization. Physical casualties caused by IEDs also create a psychological effect that can intimidate or coerce others. The Blackwater/Department of State PSD would have been well aware of these realities.
For FBI agents and other law enforcement officers operating here in the United States, the number rounds fired in self-defense is irrelevant to that analysis. In fact, in Amato v. United States, a Federal Judge described the first shot fired by the bank robbers as “equivalent to the splitting of an atom” as it was the catalyst for the chain reaction of the hail of gunfire that ensued. That case is one of many that stand for the proposition that “the number of rounds fired is rarely indicia of the reasonableness of the force used.”14 Accordingly, I found it astonishing that the Government – the same government that justly defends the actions of FBI agents who fired 181 projectiles (striking one suspect sixty-five times!) in a domestic bank robbery – would point to or rely on the number of rounds fired at Nisur Square in a combat zone as indicia of the unreasonableness, moreover criminal intent, of the Blackwater PSD members.
Additionally, the facts and circumstances that are the focus of this report occurred in Baghdad, Iraq – a combat zone – in September 2007. The Rules for the Use of Force for any U.S. Personnel Security Detachment (PSD) operating in that region would be at least as permissive as the those upon which I base my analysis. This needs to be explained right up front, so that the reader understands the facts, circumstances and authorities extant at the time in Iraq rather than reviewing them under circumstances one would a city street in America – although, the actions of the PSD would be objectively reasonable here if we had a persistent domestic Suicide Vehicle-borne Improvised Explosive Device (SVBIED) and armed terror threat.
The Blame of the Insurgents
In times of war and conflict, some policy-makers attempt to place a moral equivalency on the lives of US citizens and those of the enemy. Nothing in the Law of War – other than as it relates to the treatment of detainees – requires such a balance. But, even if one were to place an equal burden of proof on all participants, in my reading of the previous testimony of some government witnesses, there is a palpable disregard and ill animus for the lives of the Blackwater PSD members. These were, and are, honorable men who served previous combat tours as members of our Armed Forces. I have never served with a service member, law enforcement officer or PSD team member who wakes up in the morning and thinks “I’d like to murder someone today.” To the contrary, most Americans do not shoot “bad guys” often enough and certainly not on all instances in which they would be so justified. So, I started my analysis with the assumption that the Blackwater PSD members were professional security experts operating within the bounds of their authorities and responsibilities. Nothing I have read or observed belies that assumption.
Additionally – and very relevant here – the contract between the Department of State (DOS) and Blackwater specifically stated that the contractor will “establish a personal protective security training program approved by DOS and develop training plans that meet or exceed those used by the Diplomatic Security Training Center” (where DSS Special Agents are trained).
In fact, I have had the privilege of training Blackwater teams at their Moyock, NC facility and have also witnessed, first hand, their operations in Iraq. The Moyock facility was a world-class tactical training facility where diverse members of the Armed Forces and civilian teams were exposed to high-intensity situational training exercises and firearms range opportunities. Other than at Tier One16 military unit facilities, I have not seen the level of tactical preparedness offered at Moyock.
Moreover, contrary to the perception fostered by Hollywood and other media circles, most senior Regular Army officers are woefully ignorant and unskilled in the art of close quarters combat (CQC)17. Very few senior military officers have been involved in true CQC incidents. Their palpable fear and unfamiliarity with firearms – and mistrust of their subordinates – is exemplified by the silly habit of forcing subordinates to “clear” their firearms (I.e., unload and holster) when “inside the wire” (in other words, when not out on patrol, but back on the relatively safe environs of a forward operating base). One of the tragic results of their folly is the fact that victims of “Green on Blue” attacks (where insurgents who are members of an Iraqi or Afghan armed forces infiltrate US forward operating bases (FOBs) and then kill as many of us “good guys” as they can] cannot quickly and effectively defend themselves. In fact, in a Green on Blue attack in Afghanistan, two of the murdered Air Force staff officers at a FOB were reaching for their cell phones rather than their weapons.
Based on this, and for the reasons set forth herein, I find the actions of the Blackwater PSD at or near Nisur Square on or about September 16th, 2007 were objectively reasonable under the tactical circumstances and legal authorities in place. Their actions – like any other US citizen or Civilian Contractor acting in self-defense – must not be judged in the clear vision of 20/20 hindsight, but rather on how a reasonable person would act under similar circumstances that are tense, uncertain and rapidly evolving. I find the testimony of many of the Government “witnesses” to be appallingly ignorant of the legal and tactical dynamics of a deadly force encounter. Their condemnation and judgment of the Blackwater PSD team is unforgiveable in light of what, professionally, they should know.
But, again, people “don’t know what they don’t know,” so I will attribute their opinions to ignorance vice malice. It should be noted, however, that a palpable resentment to the Blackwater teams did exist amongst many “Big Army” officers, often due to jealousy over the amount of money contractors were making at the time.
Misunderstanding the Tactical Dynamics of an Encounter
The race is not to the swift or the battle to the strong … but time and chance happen to them all.
– Ecclesiastes 9:11
Much of the confusion facing those either implementing or investigating deadly force encounters flows from their woeful ignorance of the tactical dynamics of a deadly force encounter. There are many ways to break down the tactical dynamics of a deadly force encounter, but the opinions and concepts of most experts can be set forth into the following three categories: Action versus Reaction; Emotional Intensity (or Fight of Flight Effect); and, Wound Ballistics. Not only does the relevant case law recognize these factors when assessing the efficacy or lawfulness of a shooting, but also those professing to be tactical instructors must be intimately familiar with them before attempting to write and teach in this arena. Unfortunately, there are too many so-called “firearms experts” – to include combat arms officers and judge advocates – who have never grasped the fundamentals of these dynamics.
Action versus Reaction
Bad guys – be they insurgents in Iraq or criminals on the streets of New Orleans – only have one decision: when to initiate an attack. This is true whether it is time to press the “clacker” on an improvised explosive devise, when to fire the first shot in an ambush, or when to fire on a police officer conducting a “routine” car stop. Good guys (and I start from the premise that the Defendants are the “good guys”), unless involved in a preplanned military offensive or direct action mission, have at least three decision points to assess before initiating action:
First Decision Point. One has to first recognize the threat. Far too often, due to a combination of poor threat recognition training, bad luck, poor situational awareness, and perhaps a skilled opponent, the good guys get “shot in the face” before even recognizing a threat exists. The multiple instances of suicide VBIED attacks in Iraq and Afghanistan prove the maxim that “Good guys can never afford to be unlucky, and bad guys need only be lucky once” is one of the constant messages tactical operators need to remember. John C. Hall, perhaps the Nation’s preeminent expert on the laws concerning Use of Force, is fond of reminding students that we must not forget the role chance plays in every encounter. He routinely cites to Ecclesiastes 9:11 when lecturing to emphasize the role that chance always plays in encounters.
Second Decision Point. After recognizing a threat, goods guys have to determine an appropriate level of response, because not all threats require a deadly force response. This is why it is extremely important not to burden them with a checklist of conditions that must be met before deadly force is authorized. “Last resort” language in particular is foolhardy because deadly force may, in fact, be the first resort in such an encounter. Confusing and tactically impractical guidance builds in delays and create hesitancy among shooters.
Third Decision Point. Assuming one recognizes the threat and then determines that deadly force is an appropriate level of response, our brain then has to tell our bodies to react. This step, all by itself, can take an average of 1.5 seconds under ideal circumstances. By way of reference, a law enforcement study presented experienced cops with a range scenario whereby the first two decision points were already solved: the threat is a steel target at fifteen meters distance and the appropriate level of response is deadly force. On command (the sounding of an air horn), the officers were to draw and fire on the steel targets. The average response time was over 1.5 seconds: an eternity in a firefight.
For these reasons, we must divorce ourselves from the old “Gunsmoke” theory of a gunfight. That 1950s and 1960s era television series’ opening credits often showed its protagonist, Marshal Matt Dillon, waiting until the “bad guy” drew first before Matt would draw and shoot. This is Hollywood at its finest, but deadly if used as a model for any use of force situation.
The police officers firing in the controlled study, above, were firing in a controlled setting, at static targets, and were expecting it. Real world decision- making is further negatively impacted because shooting incidents are most often characterized by:
- Sudden, unexpected occurrences (This is nearly always true, because if an incident is expected, presumably one would bring something larger than a handgun or rifle!)
- Rapid and unpredictable movement by target(s) and, hopefully, the shooter.
- Limited target opportunities.
- Frequently under low light or from partially obstructed vantage points.
- Life and death stress of sudden, close, personal violence, which leads us to the second dynamic of a tactical encounter, the Tache-Psyche Effect.
Also, as proven in the peer-reviewed Tempe Study, it takes officers about 1/3 of a second to stop firing when they realize a threat has ended. An average of two rounds may be fired from each officer’s weapon after the threat ends. So- called experts reviewing an officer-involved shooting often overlook this important fact. Moreover, that 1/3-second figure was in a laboratory condition … it may take far more time during actual deadly force encounters. Overlay the Nisur Square scenario with the reality and one can easily see how four-six PSD members, with at least one on a crew-served weapon, could expend the number of rounds alleged by the government and still be reasonable.
Emotional Intensity or “Fight or Flight Response”
We are fearfully and wonderfully made.
– Psalm 139:14
This is how your body may react when you are engaged in mortal combat due to two autonomic functions that occur when one recognizes a life-threatening situation. This effect is induced via a psychological function. In other words, one must perceive the threat as serious. Nevertheless, once perceived, the following physiological effects may follow:
- Norepinephrine and cortisol are dumped into the bloodstream.
- Both heart rate and contractility of the heart increases, leading to increased blood flow.
- Vasoconstriction – the body’s involuntarily action of drawing blood from one’s extremities to the central cortex in order to provide maximum oxygenation of vital organs and brain housing group – occurs to the major organs of the body, excluding the brain, and vasodilation occurs to the major muscle groups. The need for digestion is minimal, but you need as much strength in your arms and legs as possible. The brain is never shorted on blood supply, even in the cold, although it is reduced after eating.
- Body temperature increases, blood pressure increases, and pupils dilate. This may result in a small loss of close focus.
- Perspiration increases.
- Blood sugar increases, allowing more energy transfer to the major muscles.
Most are familiar with examples of enhanced strength and heart rate increases associated with the adrenaline dump – women who lift a car’s wheel off of her trapped child and other examples of incredible weights being lifted – but many are unfamiliar with the often negative effects of vasoconstriction and the other physiological and psychological effects of adrenaline. In 2004, author and retired Army Ranger Dave Grossman published his book On Combat, detailing these effects on warriors and police officers under high stress situations.
Grossman’s book, as well as John Hall’s and Urey Patrick’s In Defense of Self and Others, should be required reading for anyone involved in analyzing the reasonableness of a use of force encounter. Lieutenant Colonel Grossman, Dr. Bill Lewinski of Force Science Institute, and others have identified certain physiological and psychological phenomena that occur under situations of close personal violence, to include:
- Loss of fine motor skills. Evolutionarily, it was very important to have sudden surge in gross motor skills, increase in speed, and insensitivity to pain. Fighting off saber-toothed tigers or fellow men armed with clubs was extremely This enhanced a person’s ability for basic fighting skills: hand-to-hand and blunt weapons. But such physiological occurrences can be TERRIBLE for modern weapons, which require trigger sensitivity, precision shooting, and fine cognitive processing. This “clubbiness” of fingers further degrades one’s ability to draw, reload and manipulate weapon systems.
- Cognitive processing deteriorates. Under high-stress events, a person’s sympathetic nervous system (SNS) begins to take over control of the situation. This is a basic primal response, an automatic reaction to a perceived survival threat. When this happens, there will be Errors in Judgment, Errors in Performance and a negative impact on memory and motor skills. A person’s fight or flight response is at its highest level. Many police officers die screaming for help into their radio microphones or repeatedly ordering armed subjects to “drop the weapon” when, instead, they should be engaging the bad guy with overwhelming deadly force.
- Auditory Exclusion. Many police officers and Soldiers never hear their own weapons discharge during a firefight. Sir Winston Churchill noted this phenomenon in one of his many memoirs. Recalling his participation in the last horse cavalry charge of the British Empire at the Battle of Omdurman in the Sudan (September 2 , 1898), Churchill said words to the effect of that despite the rattle of musketry, the crash of artillery, the thundering of horse hoof beats, and all the sounds attendant to a modern battlefield, it was “like watching a silent movie.” Officers need to understand that they may not hear their partners’ warnings or threat activities or vocalizations. This can be very disconcerting if they are not prepared for it.
- Decision Errors and Performance Errors. The average Junior High School ball player practices around 400 hours a year developing complex motor skills and, hopefully, increased mental processing ability under the “stress” of the average law enforcement officer, due primarily to budgetary constraints – ammunition and time cost money – practices less than 40 hours a year in all forms of defensive tactics. Moreover, they typically do not practice on moving targets under high-stress conditions. They “qualify” on static targets with the only stress extant is it being a timed event.
- Inattentional Blindness – Filtering Out of Non-Critical and Critical Stimuli – A sports example would be an NFL linebacker – behaving on recognition primed decision making – misreading the draw play.
- Selective Attention – Once one intently focus on anything, it is very difficult to focus on other things. See, “The Invisible Gorilla” Video. Dr. Dan Simons on YouTube as an excellent primer on this reality.
- Hyperventilation due to fear-induced stressors causes a significant reduction in blood flow to the visual cortex portion of the brain … result: missed cues, misidentified objects and near blindness. What might be obvious to a nonparticipant might be totally missed by a participant.
‘We look, but we do not see. We listen, but we do not hear.” – Sherlock Holmes and St. Paul.
- Time-Space Distortion. Anyone who has been in an automobile accident and saw the accident unfolding before impact – such as when losing control on a long patch of black ice or when looking into the rear view mirror and seeing the idiot behind standing on his brakes as his car screeched toward impact with your vehicle – has probably experienced time-space distortion. What takes mere seconds may appear to take minutes as our brain goes into the “Oh Heck!” mode. This often happens to combatants, who have variously reported seeing their empty brass cartridges discharging in slow motion (sometimes appearing “as large as trash cans”) or actually see their bullets impact into their target. Experienced warriors and athletes can sometimes tune their bodies to use this phenomenon to their advantage, such as Ted Williams’ claimed ability to slow a 93 mph fastball down to the point where he could see the seams on the ball. Not many folks realize that Ted Williams was also an ace Marine fighter pilot in WW II and Korea. His uncanny ability to control time-space distortion, as well as his superior hand-eye coordination, most likely made him a great fighter pilot, too. But most humans are not so blessed. Emotional Intensity mostly negatively impacts their actions. Shooting on a “qualification” range is rarely an indicator of how well an individual will shoot under the stress of a deadly force encounter.
- The Myth of Multi-tasking. Brains think sequentially … focusing very quickly on one thing then the next: not at the same time. Those that have attempted to text while driving … in that one second you are focused on your cell phone … vehicle could travel 88’ (at 60 MPH). It is also irrelevant whether the distraction if auditory rather than visual … simply focusing on the conversation rather than the roadway will have the same disastrous effect on one’s driving. The reason why texting and handheld devices are outlawed in most states is an enforcement issue – it is easy to spot a hand to the ear or hands in one’s lap instead of the steering wheel. It is nearly impossible to detect “hands-free” devices. But, even using hands-free devices causes driving impairment akin to a .08 -.015 BAC percentage. It is very clear, both in terms of common sense and scientific documentation, that once something arises that captures your attention, and your external focus immediately narrows down to just that one area. Yes, you can walk and talk at the same time, one of the most simplistic forms of multitasking. But once you trip, you can no longer carry on the conversation because your full attention is concerned with dealing with your tripping.
- Loss of peripheral vision (tunnel vision). FBI records of police officer involved shootings often reflect that officers initially shoot at the suspect’s hands. This is not a case of officers trying to “shoot the weapons out of the suspects’ hands” – another inane Hollywood concept that is tactically impracticable – but rather a case of the officers being afflicted with tunnel vision. In other words, they initially perceive the weapon rather than the shooter as the threat. Since hands follow the eyes, they begin shooting at the weapon rather than the true danger: the human operating the weapon. Sadly, because they are shot and incapacitated or killed, many never get the opportunity to shift fire to the perpetrator.
- Loss of bowel and bladder control. Again, since our autonomic systems switch into gear during violent, life or death struggles, one of the bodily functions that is not important to surviving the moment is retention of waste fluid and fecal matter.
- Memory Gaps. Often, persons involved in high-stress events forget much of what themselves and others did during the event. Sometimes, after a period of at least 24 hours of decompression, their memory is restored somewhat. That is why it is critical that commanders do not allow criminal investigators (Army CID or local homicide investigators) to interview participants in a line of duty shooting until after this period has lapsed. Moreover, the fact that the recollections of the shooter, other participants, and the physical evidence – for example the number of rounds fired and their direction – might be wildly divergent should not suggest or imply untruthfulness on anyone’s behalf.
- Intrusive Thoughts. A participant’s mind, under the high-stress of a gunfight, may think of things entirely unrelated to the critical events at hand.
Every one of these effects, and every pre-conceived and ill-conceived bad notion we drag to a firefight interfere with our ability to process information in a timely manner. They also impact each person’s recollections from that firefight.
Again, Hollywood has done much to distort and craft our perceptions and beliefs concerning how bullets work and their effect on the human body. Years of portraying suspects getting blown through plate glass windows by Clint Eastwood’s .44 Magnum or vehicles exploding or rolling over after being hit by small arm’s fire, has created deeply imbedded myths that must be exposed.
The truth is that many police officers, Soldiers – as well as the bad guys – do not even know that they are shot until after the gunfight is over. Unless a person receives a devastating head shot or the cervical spine is severed – causing immediate disruption of the brain housing group and brain nerve function – the body, physically, can keep on fighting until volumic blood loss (around 40%) deprives the brain-nerve function of enough oxygen to function. That is why guidance should never be “use minimum force” or “shoot and assess,” but rather “you should apply force until the threat is over.” That is what Raven 23 did and for which it is now being punished.
But before one can understand why this is so, gaining an understanding of how bullets work is critically important. Bullets work both psychologically and physically.
How Bullets Work Psychologically
Many have preconditioned their minds into believing how bullets work. Again, Hollywood is responsible for most of this folly. The FBI, in its exhaustive studies of law enforcement related shootings, has found many examples of experienced police officers winning the initial phase of a gunfight by accurately engaging suspects, then ultimately losing by not finishing the mission. Cops who, in the middle of a firefight, stop and actually look at their own weapons because they weren’t “working like they were supposed to work” have experienced some of these instances. In other words, the cops had preconditioned their expectations as to how a suspect who they had just shot was supposed to react. And when the suspects did not immediately fall to the ground (or get blown backwards or through the plate glass window), it caused a moment of hesitation on the cop’s part, sometimes with fatal consequences.
More importantly, instead of immediately falling to the ground, suspects sometime continued to aggressively assault or return fire on the officers. In the first 10 seconds of the famous and tragic FBI shootout of April 1986 in Miami, Florida, FBI Special Agent Jerry Dove fired a Winchester Silver Tip 9mm hollow nosed round into one of the suspects, Michael Platt. This round severed Platt’s right brachial artery before it entered his upper thoracic cavity where it collapsed his right lung and caused further arterial bleeding. That one round fired by Jerry Dove caused a fatal injury to Platt. That means, by expert medical opinion provided post-incident, it was believed that even had Platt received immediate trauma care, he still would have expired.
But, Michael Platt didn’t perish for an additional four minutes until he either exsanguinated (bled out) or succumbed to a headshot administered by FBI Agent Ed Mireles during the closing moments of the firefight. But, in this additional four minutes, Platt killed two FBI Agents, including Jerry Dove, and grievously wounded five others. While the mechanics or physical aspects of wound ballistics – how and why it took so long for the suspects to “bleed out” – played a role in their ability to continue the fight, it was the suspects’ psychological determination that proved so deadly to the FBI that day.
How Bullets Work Physically
Despite all the fantasy out of Hollywood and misinformation in many gun magazines, small arms rounds do not possess “knock down” or “stopping” power. Small arms projectiles physically incapacitate an individual by crushing, tearing, or destroying flesh and bone: hopefully with enough depth of penetration and permanence to either directly disrupt the body’s brain-nerve function or cause enough blood volume loss to keep oxygen from adequately feeding that brain- nerve function. The goal is stopping the bad guy from performing his ill deeds.
Police officers, as most Soldiers, really do not shoot to kill: they shoot until the threat is over. It is entirely irrelevant to the outcome of the shooting incident whether the bad guy dies. In the FBI shootout, Michael Platt died, but not soon enough. This is part of the reason why – just like here – on average, police officers fire three rounds in a line-of-duty shooting.
The preeminent scholar in the field of wounds ballistics, retired Army surgeon Colonel Marty Fackler, had this to say about the “shock” or “knock down power” of a small arms projectile: “The shock from being hit by a bullet is actually much like the shock from being called an idiot; it is an expression of surprise and has nothing to do with physical effects or psychological trauma.”91 The ground truth is that the amount of physical energy inflicted on the body by a small arms round is equivalent of being hit by a Major League fastball. It is axiomatic, therefore, that a smalls arms round cannot, as asserted by some, stop a VBIED by shooting into the engine block!
Permanent Wound Channel is the permanent path of destruction through the body caused by the passage of the projectile though flesh and bone. It is the permanent hole caused by the size, depth of penetration and course of the bullet as it traverses though the body. Many variables effect the permanent wound channel, to include, but not limited, to: velocity of the round, round fragmentation, deflection (either before or after entering the body), and size of the projectile.
Unless the permanent wound channel directly disrupts the brain-nerve function, one cannot ever assume or anticipate immediate incapacitation. The human heart can be eviscerated by a direct hit from a 7.62 mm NATO round (the standard “sniper” round within most police and military inventories) and still there will be enough oxygen in the brain for the assailant to continue to function for an additional 10-15 seconds: a seeming eternity in a firefight.
Another variable is the fact that wounds cannot be predictably relied on to bleed out in a timely fashion. Under ideal circumstances, Michael Platt’s wound to his brachial artery should have drained blood from him very quickly – a 20%- 25% volumic loss – causing loss of consciousness or death within seconds.
Nevertheless, due to physical realities such as incomplete wounding, arterial clamping caused by adjacent tissue and muscle mass, and other unpredictable variables, Platt’s will was able to overcome his injuries long enough to fight back with devastating effect on the good guys.
Part of the problem encountered by American forces is the relative inefficacy of the 5.56 mm round as a close quarter’s battle (CQB) weapon. Contrary to popular folklore, 5.56 rounds fired from the M-16/M-4 rifle do not “tumble” when exiting the weapon system. They spin at a high RPM just like any other Spitzer-type hunting bullet. They were designed to yaw (or go “ass over end”) after achieving sufficient depth of penetration into flesh, hopefully creating a more devastating wound channel. If they do not achieve the necessary depth of penetration – in the case of many Afghan and Somali targets, the “bad guys” were simply too thin – then the round will create a “knitting needle” type injury that may not cause fast volumic blood loss. Secondly, these rounds were originally designed to be fired out of a 20″ plus barrel, thereby achieving extremely high velocity with attendant bullet fragmentation on impact: all with a view of creating more grievous wound channels. When the US government community (and later, Big Army) cut the original barrels down to carbine/M-4 lengths (generally 10-14 inches), they lost much of the velocity required to achieve bullet fragmentation.
It is very important for any court or trier of fact to understand these tactical realities of a deadly force encounter. Soldiers and the Blackwater PSD, like police officers, are those individuals who respond to those things “that go bump in the night.” Most Americans, thankfully, have never been punched in the face or been in violent life and death struggles with vicious felons or enemy insurgents bent on killing. Moreover, police – like the Blackwater PSD – are not trained or expected to simply walk away from a bad situation. Their duties require otherwise. For the members of Blackwater PSD Raven 23, they needed to secure a safe avenue of exfiltration for the State Department civilians under their protection as well as identify and defeat any imminent threat to their own convoy. As so eloquently pointed out by Supervisory Special Agents Urey Patrick and John C. Hall, FBI (Retired) in there seminal book In Defense of Self and Others and as set forth by Urey Patrick many times as an expert witness on this subject:
Law enforcement officers are not trained to take no action to protect themselves and others. To the contrary, they are trained that they have a duty to protect themselves and others. In balancing the concept of “no action” against the concept of a “duty to perform”, we must remember that law enforcement officers are trained and practiced to protect themselves and the public. They are expected to be proactive in the pursuit of their duty. “… Employing deadly force is permissible when there is no safe alternative to using such force, and without it the officer or others would face imminent and grave danger. An officer is not required to place him or herself, another officer, a suspect, or the public in unreasonable danger of death or serious physical injury before using deadly force.”
Deadly force is ideally used to pre-empt a reasonable risk of death or serious injury, thereby preventing an imminent risk of harm from becoming an actual or ongoing infliction of harm. When that risk has risen beyond “imminent” and become “actual” or “real”, then even the application of deadly force may not be sufficient to prevent death or injury to the officer or innocent others under his protection. The immutable physical realities of reaction times and wound ballistics make this so. Accordingly, it would have been foolhardy for members of Raven 23 to simply “button up” and wait for help. In the ensuing minutes, while waiting for help, follow-on ground attacks by insurgents armed with more SVBIEDs or anti-tank rocket-propelled grenades (RPGs) might have easily defeated the PSD convoy. The appropriate actions when confronted with an insurgent close-in ambush is to violently attack and overcome those initiating the ambush.
Having worked at the Joint IED Defeat Organization’s Counter IED Operational Integration Center (JIEDDO-COIC), I am intimately familiar with the insurgents’ tactics, techniques and procedures at the time. Sitting tight and buttoning up was not a reasonable option for Raven 23 or any convoy full of good guys in Iraq in September 2007. There were hundreds of IED attacks occurring every month. The vehicles this team was in were not Abrams tanks, but rather thin-skinned vehicles that an RPG or medium sized IED would rip to shreds.
Law enforcement and security personnel or others experienced in CQC tactics, are also trained in the realities of reaction times. It is unreasonable to expect them allow an attacker a fair chance to prevail either through greater skill, strength or mere chance. The attacker need only be lucky to succeed. Law enforcement officers do not have to gamble life or physical safety on sheer chance. Neither did members of Raven 23.
There are also the unavoidable physical realities of wound ballistics that dictate that even if an officer succeeds in shooting an attacker, it is no guarantee that the attack will be stopped before it causes injury or death.20 This means, for example, that an attacker armed with a firearm can still pull his trigger despite receiving a mortal wound; an attacker using knife, club or fists may still press on. An attacker reaching and then using a VBIED as a deadly weapon, can still shift gears, accelerate and steer toward an officer or an innocent other.
The appropriate tactical response to a vehicle being used as a deadly instrumentality is to take out the operators of the vehicle, not to try and stop a three-four thousand pounds vehicle with rounds that weigh fractions of an ounce. It is tactically unlearned to believe that a round – other than a large caliber round such a 50 BMG round – could ever penetrate an engine block and disable it with any degree of reliability. The tactically and legally appropriate measure to stop a vehicle – to include a SVBIED – is to incapacitate its operator as soon as possible. Typically, this is best done with high-velocity rounds to the head. Firing “one or two” shots at such a threat would be tactically ineffective.
These realities mean that there is no reliable and timely way to insure immediate incapacitation of a determined attacker. Incapacitation takes time. Action and reaction times are real and unavoidable factors.
I must also comment on the misperceptions of many individuals, including certain senior military officers, that an individual threatened by the imminent threat of death or grievous bodily harm must use minimum or the least amount of force available to quell the threat. This mistaken belief is highlighted by a woefully ignorant Army Colonel’s statement concerning the events of Nisur Square, when he stated:
So you generally want to use the least force necessary to do the job. If that’s protecting yourself, then you’re going to use the least amount of firepower you can that has the least likelihood of hurting innocent people, because you don’t want to turn the people that are just going about their lives against the coalition and Iraq security forces. You want to keep them on our side. So you’ve got to be very, very judicious about your application of force…
In addition to misunderstanding the application of the military’s own rules concerning the use of force in self-defense, that statement belies the standard by which the reasonableness is measured concerning a specific application of deadly force. Neither tactics nor the law requires individuals to use the least amount of force or lesser means when confronting an imminent threat.
“That multiple shots were fired does not suggest that the officers shot mindlessly as much as it indicates that they sought to ensure the elimination of a deadly threat.”
Lastly, what the Army Colonel alluded to in the above-cited statement concerns strategic policy concerns, not the tactical realities of a close-in gunfight or the Defendants’ authority to exercise force in self-defense. Just like Police Commissioners and Mayors may wish that police-involved shootings where civilians are injured didn’t occur – and may write departmental policy to try and limit such occasions – their policy desires do not limit the amount of force an officer may use in defense of self and others. The Federal courts have long recognized this reality:
“The issue is whether [the officer] violated the Constitution, not whether he should be disciplined by the local police force.”
So, in the face of an imminent threat, the Defendants – members of PSD Raven 23 – did not need to consider the least intrusive means of stopping the threats they faced. Moreover, they were not constrained by any military policy, even if it were as restrictive as certain Army Colonels suggests. To the contrary, as they were not in support of the DOD; rather, they were DOS contractor defensive specialists whose mission and duty were to protect DOS diplomats and themselves in a very hostile environment.
Attempts to judge or condemn the Defendants’ pre-incident conduct, implying or inferring that they were somehow responsible for or provoked the violence at Nisur Square, are misplaced. While I do not believe that is this case, even if were true, such conduct would not negate the reasonableness of the force used at the time the shooting commenced:
“[T]he fact that an officer negligently gets himself into a dangerous situation will not make it unreasonable for him to use force to defend himself … Thus, even if an officer negligently provokes a violent response, that negligent act will not transform an otherwise reasonable subsequent use of force into a Fourth Amendment violation.”
The critical imperative of action versus reaction times in a law enforcement or protective detail setting is that the officer’s time lapse (observation plus decision plus response time resulting in a shot fired, for example) begins in response to an action initiated by the person confronted. A law enforcement officer or anyone acting in a self-defense capacity cannot see the future or read minds. The officer can only react to what the subject being confronted chooses to do, and what the officer reasonably believes the subject may do. Such was the case with the Kia and the VBIED threat at Nisur Square.
Based on the all of the factors extant – the suspicious Kia, the known insurgent tactics, techniques and procedures of initiating VBIED attacks and follow-on small arms attacks, and the actual returning gunfire (either from insurgents, GOI police, or both) – there were sufficient pre-assaultive indicators extant for an objectively reasonable person to believe there was an imminent and ongoing threat to the convoy. So, when reviewed pursuant to the reasonableness standards set forth in Tennessee v. Garner and Graham v. Connor, the fact that the Blackwater PSD Raven 23 team used deadly force in response to a very real threat should surprise none but the tactically naïve or members of the plaintiffs’ bar.
In Defense of Self or Others
Did the Defendants have reasonable belief that the Kia and others in Nisur Square presented an imminent threat of grievous bodily injury to themselves or innocent others at the time deadly force was used? The old common law standard clearly recognized that officers did not have to be right in their actions, only reasonable. As Associate Justice Oliver Wendell Holmes so eloquently noted in United States v. Brown, “Detached reflection is not demanded in the presence of an uplifted knife.”
After the United States partially lifted the veil of sovereign immunity by diverse Federal Torts Claims Act statutes in the 1970s; the Supreme Court gradually began to take cognizance of use of force cases against federal, state and local law enforcement officers: cases claiming some sort of violation of the individuals’ constitutional rights based on the officers’ use of force. The landmark cases from the 1980s – applying the Fourth Amendment standard of reasonableness – are Tennessee v. Garner and Graham v. Connor.
The Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm.
[W]e must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes “reasonable” action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure.
This standard was slightly modified by the 2001 case of Saucier v. Katz. In essence, the Court set forth the standard that “no reasonable officer would have acted in a similar manner.”
In 2007, in Scott v. Harris, the Supreme Court had the opportunity to directly reexamine the standard set forth in Tennessee v. Garner, concerning the reasonableness of the force used to stop a fleeing and potentially dangerous suspect. It is relevant here for a number of reasons, as it not only reaffirms Graham but also examines both the conduct of the police as well as the subject who gets shot by the police. The Court properly places an onus on citizens not to act in a manner that endangers human life. Here, the collective actions of driving a suspected VBIED at a heavily armed American PSD and then engaging it with small arms fire clearly endangers human life – at a minimum, it would be reasonably foreseeable that voluminous gunfire would ensue and that innocent others could get hurt in the ensuing melee.
Retired FBI Supervisory Special Agents Urey Patrick and John Hall in their seminal work In Defense of Self and Others eloquently state this point of law and order:
“I decline utterly to be impartial as between the fire brigade and the fire.”
– Sir Winston Churchill (1926)
There are some topics about which decent folk cannot afford to be impartial. Sir Winston’s statement provides a good example.
There is an obvious parallel between the fireman and the policeman. Just as the fireman’s helmet represents our determination as a community to protect ourselves from the dangers posed by fire, the law enforcement officer’s badge and gun represent our determination as a community to protect ourselves from the dangers posed by individuals whose actions threaten our safety.
The folly of taking a neutral stance between that which is dangerous and that which we create to protect us from that danger should be self-evident.
I, too, refuse to remain neutral between American citizens and Iraqi insurgents. It is possible that he Defendants could have used less intrusive mean? Perhaps, in the clear vision of 20/20 hindsight, they could have “buttoned up,” called for a Quick Reaction Force (QRF), and prayed for the best. Or, they could have attempted to flee the area. But, that was not their mission. Their mission was to provide a safe and secure route for Department of State personnel leaving their meeting. Moreover, neither the law nor reason requires a defendant to use the least intrusive means available to stop a threat or affect an arrest, only an objectively reasonable means. Lastly, commentary to the effect of “they could have buttoned-up and waited for help” ignores the role of chance that impacts any tactical situation. The “bad guys” only have to get lucky once, while the “good guys” can never afford to be unlucky. Any experienced tactical defender would be well aware of this maxim and do everything possible to weigh the scales of chance in favor of his own people. That the prosecution found a number of uniformed “Fobbits” to say otherwise is despicable.
Also, the analysis of the Defendants’ reasonableness does require them to be right in the clear vision of 20/20 hindsight. In fact, a Federal appellate court rightly notes the following:
“It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self- defense at the time involved reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken.”
So, whether all of the suspected insurgents in Nisur Square actually presented an imminent threat to The Defendants or innocent others is not required: only that the Defendants’ belief that they did was reasonable under the circumstances. Instead, four young Americans face the dire prospect of lengthy prison terms for a crime not committed.
The crux of this case can be summed up as follows: What if the Kia has been a SVBIED that detonated instead of merely an “innocent” vehicle? Instead of being on trial, the Raven 23 Team would be praised for their actions in saving lives of their Protectees and their own lives.
Based on my knowledge, skills and abilities – as well as my training and experience in the realm of Ethical, Tactical and Legal Realities of Deadly Force Encounters – the Defendants acted objectively reasonably in their use of force on September 16th, 2007. While, in the clear vision of 20/20 hindsight and even if I were on the scene, I might have used alternate means of force – or I might have used more force or I might have frozen – the Defendants’ actions were clearly never so far outside the realm of that “gray area” as to make them unconstitutional or unlawful. They should be entitled to qualified immunity from both civil suit and criminal prosecution. Had the trial court understood and applied the appropriate legal standard, to say nothing of the jurisdictional issues, the case should have been dismissed on motion prior to trial.
Police officers and Soldiers – at least 99.9% of those with whom I have met, trained or worked – do not go on duty thinking “I hope I get to shoot or kill an innocent person tonight.” In fact, everything about this incident was the antithesis of how insurgents treated US personnel, to include previous Blackwater security teams.32 So, absent some indicia of malice or criminal intent, individuals like the Defendants should be given the benefit of the law and doubt. In fact, it would be illogical to assume or look for ill motives in such a case. In fact, the only logical thing to look for in this case would be the reasons why a reasonable security detachment would open fire. Unlike most use of force cases involving an FBI, DEA or other Federal Special Agent, the Defendants were never given that benefit of the doubt. I found no evidence that the Defendants possessed any criminal motive in their shooting of the suspects and subjects on September 16th, 2007 at Nisur Square in Baghdad, Iraq. It is both shocks and saddens me that the United States has chosen to convict fellow Americans under these facts and circumstances.
Mercifully and righteously, President Donald Trump had the wisdom and courage to set things aright. America owes a debt of honor to these men and we need to keep them and their families in our prayers.
Author David G. Bolgiano is a Former Law Enforcement Officer, Faculty Member, US Army War College and Command Judge Advocate for Special Operations Command Central. Bolgiano has deployed to Iraq three times. He currently lives in Germany and can be reached on LinkedIn.