In dismissing the case, U.S. District Judge Ricardo Urbina said prosecutors ignored the advice of senior Justice Department officials and built their case on sworn statements that had been given under a promise of immunity. Documents unsealed Tuesday in response to a request by The Associated Press and The Washington Post paint the clearest picture yet of how the case prosecution went awry.

Immediately after the Sept. 16, 2007, shooting, Blackwater contractors told State Department investigators what happened. Two days later, the security gave written statements under a promise that nothing they said could be used against them in a criminal case.

Because of that deal, prosecutors had to make sure they didn’t use the written statements to build their case. It was unclear, however whether prosecutors could use the Sept. 16 interviews.

Ken Kohl, the lead prosecutor, believed he could. And he thought Raymond Hulser agreed.

Hulser is among the Justice Department’s experts on Garrity V. New Jersey, the Supreme Court case that spells out how to deal with these kinds of immunity deals. Hulser did not agree with Kohl.

“I think that we agreed that there was an issue regarding the Sept. 16, the earlier statements,” Hulser testified in one of several closed-door hearing last year that ultimately persuaded Urbina to dismiss the case. “My view was that the risk was such that they shouldn’t take it. His view was that they had a good chance of arguing the other way.”

Hulser repeatedly tried to warn Kohl that building the investigation on those interviews could jeopardize the case.

“We’ve got an uphill battle on this Garrity issue, and the burden of proof is ours, so we need to be particularly cautious,” Hulser wrote in an e-mail to Michael Mullaney, who served as the middle man between Hulser and Kohl.

The Justice Department installed Mullaney as a middle man as a safeguard to protect tainted evidence from sinking the case. But that structure just made things more confusing, attorneys said in testimony unsealed Friday.

When Mullaney relayed Hulser’s warnings, Kohl said he either didn’t read them or didn’t interpret them the way they were intended. Kohl’s team did use the Sept. 16 statements, a strategy that ultimately helped unravel the prosecution.

Kohl acknowledged that at times his investigation went “close to the line” but said he always thought he had the approval of his supervisors.

In his ruling, Urbina said Kohl simply ignored the warnings. The Justice Departments internal affairs division, the Office of Professional Responsibility, is investigating the Blackwater prosecutors for their handling of the case.

The Justice Department now faces an uphill battle resurrecting the case. Traveling in Iraq earlier this year, Vice President Joe Biden told Iraqi leaders that the U.S. would not give up.

The five guards are Donald Ball, a former Marine from West Valley City, Utah; Dustin Heard, a former Marine from Knoxville, Tenn.; Evan Liberty, a former Marine from Rochester, N.H.; Nick Slatten, a former Army sergeant from Sparta, Tenn., and Paul Slough, an Army veteran from Keller, Texas.

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Associated Press writer Pete Yost contributed to this report.

Urbina said the prosecutors ignored the advice of senior Justice Department officials and improperly built their case on sworn statements that had been given under a promise of immunity. Urbina said the government’s explanations were “contradictory, unbelievable and lacking in credibility.”

“We’re obviously disappointed by the decision,” Justice Department spokesman Dean Boyd said. “We’re still in the process of reviewing the opinion and considering our options.”

Prosecutors can appeal the ruling.

Blackwater contractors had been hired to guard U.S. diplomats in Iraq. The guards said insurgents ambushed them in a traffic circle. Prosecutors said the men unleashed an unprovoked attack on civilians using machine guns and grenades.

The shooting led to the unraveling of the North Carolina-based company, which since has replaced its management and changed its name to Xe Services.

The five guards are Donald Ball, a former Marine from West Valley City, Utah; Dustin Heard, a former Marine from Knoxville, Tenn.; Evan Liberty, a former Marine from Rochester, N.H.; Nick Slatten, a former Army sergeant from Sparta, Tenn., and Paul Slough, an Army veteran from Keller, Texas.

Defense attorneys said the guards were thrilled by the ruling after more than two years of scrutiny.

“It’s tremendously gratifying to see the court allow us to celebrate the new year the way it has,” said attorney Bill Coffield, who represents Liberty. “It really invigorates your belief in our court system.”

“It’s indescribable,” said Ball’s attorney, Steven McCool. “It feels like the weight of the world has been lifted off his shoulders. Here’s a guy that’s a decorated war hero who we maintain should never have been charged in the first place.”

The five guards had been charged with manslaughter and weapons violations. The charges carried mandatory 30-year prison terms.

Urbina’s ruling does not resolve whether the shooting was proper. Rather, the 90-page opinion underscores some of the conflicting evidence in the case. Some Blackwater guards told prosecutors they were concerned about the shooting and offered to cooperate. Others said the convoy had been attacked. By the time the FBI began investigating, Nisoor Square had been picked clean of bullets that might have proven whether there had been a firefight or a massacre.

The case fell apart because, after the shooting, the State Department ordered the guards to explain what happened. In exchange for those statements, the State Department promised the statements would not be used in a criminal case. Such limited immunity deals are common in police departments so officers involved in shootings cannot hold up internal investigations by refusing to cooperate.

The five guards told investigators they fired their weapons, an admission that was crucial because forensic evidence could not determine who had fired.

Because of the immunity deal, prosecutors had to build their case without those statements, a high legal hurdle that Urbina said the Justice Department failed to clear. Prosecutors read those statements, reviewed them in the investigation and used them to question witnesses and get search warrants, Urbina said. Key witnesses also reviewed the statements and the grand jury heard evidence that had been tainted by those statements, the judge said.

The Justice Department set up a process to avoid those problems, but Urbina said lead prosecutor Ken Kohl and others “purposefully flouted the advice” of senior Justice Department officials telling them not to use the statements.

It was unclear what the ruling means for a sixth Blackwater guard, Jeremy Ridgeway, who turned on his former colleagues and pleaded guilty to killing one Iraqi and wounding another. Had he gone to trial, the case against him would likely have fallen apart, but it’s unclear whether Urbina will let him out of his plea deal.

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On the Net:

Read the judge’s opinion: http://bit.ly/7q0G2r

Though these are allegations at this point, the various abuses and crimes of Blackwater are well-documented, and nobody has done a better job of doing that than Scahill.  Prince, a supporter of the most extremist right-wing Christian groups including Focus on the Family, built what can only be described as a large private army that the U.S. Government uses, one that — as Scahill put it — “has operatives deployed in nine other countries around the world, can boast of a force of 20,000 men to call on at a moment’s notice, has a fleet of aircrafts.”  About these reports, a reader, Carolyn Clark, makes this point via email:

What if the situation were reversed, if this country was invaded and occupied by a Muslim country? What if mercenaries were loosed on our population, with the purpose of killing as many of us as possible, sent by the democratically-elected government of this Muslim country, with no ensuing outcry from the citizenry as atrocity after atrocity is reported?

Would this not be seen as a war crime of the highest order, and would not the citizens of this country be responsible for complicity in these crimes?

I think we know what would happen if that occurred — there would be vehement demands for accountability and war crimes trials.  Just consider what Hillary Clinton today, in Kenya, is saying and doing regarding allegations that Kenyan politician officials participated in acts of violence during civil strife in that country.  From today’s New York Times, headlined:  ”Clinton Calls for Accountability in Kenya“:

Some of the headlines greeting Mrs. Clinton on her first morning in Kenya focused on American pressure to set up a special tribunal to try the perpetrators of election-driven bloodshed early last year that left more than 1,000 people dead.

“Clinton lands as U.S. breathes fire,” one said. “Quit lecturing Africa on politics, says Raila,” said another, referring to Raila Odinga, the Kenyan prime minister who narrowly lost the disputed election that set off the violence. . . .

Despite strong pressure from its own citizens and Western donors, the Kenyan government has refused to begin work toward a separate tribunal, saying that it would try perpetrators through existing institutions instead. Kenya’s judicial system, however, has done little to pursue suspects in the post-election violence and is often accused of perpetuating the nation’s culture of impunity.

Many people fear that the Kenyan government will take no action.

“We are waiting, we are disappointed,” Mrs. Clinton told a news conference.

She reminded Kenyans of how the United States played a large role in brokering a peace treaty last year between Kenya’s warring political parties but said that “unfortunately, resolving that crisis has not yet translated into the kind of political process the Kenyan people deserve.”

Prosecutors at the International Criminal Court at the Hague have vowed to get involved if the Kenyan government fails to prosecute the top suspects, possibly including government ministers. On Wednesday, the Kenyan foreign minister said that this was still an option.

But Mrs. Clinton said Kenya should handle the process itself. It is “far preferable that prosecutors, judges and law enforcement officials step up to their responsibility,” she said.

“To resolve this issue internally is preferable to losing control of this.”

But she said she recognized the obstacles ahead. “I know this is not easy; I understand how complicated this is,” she said. “How do you go about prosecuting the perpetrators without engendering more violence?”

Mrs. Clinton said that the United States was not demanding that all suspects be hauled into court immediately but that “there needs to be a beginning; that’s what we are looking for.”

We need to teach those Kenyans that if they don’t prosecute their criminals in high office, then they’ll perpetuate their “culture of impunity,” and that would be awful.  Those Kenyans apparently fail to understand that if you immunize high political officials when they commit crimes, that creates a “culture of impunity” – I love that phrase — which ensures future rampant criminality in the political class.  How can those Kenyans not realize this?

Clinton’s sentiments echoed what Obama told Africans when he spoke in Ghana last month, when he demanded that they apply “the rule of law, which ensures the equal administration of justice” and vowed that “we will stand behind efforts to hold war criminals accountable” — meaning African war criminals.  As we send murderous, crusading civilian units around the world to accompany our invading armies — while ushering a regime of torture wherever we go — and then announce we will only Look to the Future, Not the Past, when their crimes are exposed (despite our best efforts to keep them concealed), do we actually expect anyone to take these sermons seriously?

UPDATE:  I just remembered that it’s not only Kenya that is plagued by a “culture of impunity.”  That is the exact phrase which, in May, The New York Times also applied to Iraq, when lamenting that country’s pattern of failing to prosecute politically powerful people when they commit crimes:

The real problem is the difficulty of prosecuting people for corruption, which is so widespread that it has become one of the main obstacles to stability and progress in Iraq, according to Iraqi and American officials. Among the barriers, the officials say, are laws that give ministers the right to pardon offenders, as well as partisan and sectarian interference, pressure, infighting, vendettas, blackmail and death threats. . . .

Iraq’s culture of impunity on corruption was illustrated last week when commission officials, accompanied by Iraqi soldiers, went to the Trade Ministry — itself far from the most-accused ministry on the commission’s list — to arrest nine people, including two of the minister’s brothers. They were implicated in large-scale embezzlement and fraud related to the ministry’s $5.3 billion public ration program.

A firefight erupted between the ministry’s guards, led by one of the minister’s brothers, and the force sent to make the arrests. That unit retreated after arresting only one of the people who were wanted, the minister’s spokesman.

A NYT search reveals that the phrase “culture of impunity” has never been applied to the United States.  Thankfully, then, Americans will probably never know what it’s like to live in a country where politically powerful people are free to break the laws with impunity.  According to the NYT, though, such a terrible dynamic does prevail in Iraq and Kenya.