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 [Tuesday], 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 U.S. Department of Justice, the District Court for the District of Columbia and the U.S. 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 23, 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?”]; the proper standard of legal review; and 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. Connorstandard 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.”