This article has been corrected.

Attorneys for Blackwater Worldwide security guards accused in a fatal 2007 shooting incident in Iraq asserted last year that prosecutors had belatedly turned over an exculpatory e-mail to the defense, according to previously sealed courtroom transcripts.

The e-mail, which defense attorneys called “a smoking gun,” was revealed Tuesday when transcripts of the closed Oct. 26 hearing were released in response to a Freedom of Information Act request by the Associated Press and The Washington Post.

Blackwater prosecutors Kenneth Kohl (left) and Jonathan Malis met in Baghdad in December 2008 with families of victims of the shooting. (Getty Images)

But Justice Department lawyers took issue with the “smoking gun” characterization, the transcript shows. They added that a member of the prosecution team had flagged the e-mail after noticing it hadn’t been included in material previously identified for release to defense counsel.

In the hearing in before U.S. District Judge Ricardo Urbina in Washington, D.C., David Schertler, the attorney for defendant Dustin Laurent Heard, raised the issue of the e-mail.

According to Schertler, Assistant U.S. Attorney Jonathan Malis asserted in the e-mail that even though the government’s evidence against defendant Nicholas Slatten was tainted, prosecutors should use it anyway.

“In this email Mr. Malis is essentially saying, look, I’m going to make the decision that we’re going to violate this defendant’s Fifth Amendment rights, we’re going to introduce the tainted information to the second grand jury and in his words, quote, unquote, it is a calculated risk,” Schertler said, according to the transcript.

Justice Department spokesman Dean Boyd disputed this account in a statement issued Thursday. “Far from failing to disclose the e-mail, Mr. Malis conscientiously caused the e-mail to be produced in discovery,” Boyd said.

The hearing last October was held to determine whether prosecutors had violated the defendants’ constitutional rights by relying on tainted, compelled testimony, in violation of the Supreme Court’s 1972 Kastigar decision. The guards had given statements to the State Department under a grant of immunity immediately after the Sept. 16, 2007 shooting in Baghdad’s Nisur Square, a major thoroughfare. The shooting left 17 Iraqis dead.

Urbina ultimately ruled that prosecutors improperly relied on tainted evidence. He dismissed the case on Dec. 31 in a strongly worded ruling that rebuked the prosecutors, but stopped short of a formal misconduct finding. The dismissal sparked outrage in Iraq, and the Justice Department has said it will appeal.

In the hearing last year, Schertler expressed frustration that defense counsel had received the e-mail evidence on a Saturday evening and questioned whether there was more evidence yet to come.

“[The email's] been around for almost a year,” he said. “[I]t’s something that we think should have been produced, and it causes us to be concerned about … the integrity of the process that they have to rely upon to get information that’s critical to the issues in this case.”

Justice Department trial attorneys Joseph Kaster and Michael Dittoe of the National Security Division represented the government in the hearing. In the transcripts, Kaster and Dittoe highlighted the difficulty of sorting through a large number of e-mails, some of them over two years old. They also said that Malis proactively brought the e-mail to their attention.

“What we have been doing to specifically address Mr. Schertler’s concern with respect to our witnesses, we have had them going back through their e-mails and doing a physical looking again at the e-mail,” Dittoe said at the hearing. “[T]his one did not appear in the binder of materials that I was personally reviewing, and Mr. Malis pointed that out to me and said, ‘Mr. Dittoes, here’s an e-mail I think is very relevant,’ and then we disclosed it.”

The DOJ lawyers also disagreed with the defense’s characterization of the e-mail as a “smoking gun” proving the government knowingly violated the defendants’ constitutional rights. “It does nothing of the sort,” Kaster said. Instead, the prosecutor was referring to the “risk” of using witnesses who would be required to testify only about what they personally observed, not what they had read, Kaster said in the transcript.

Kaster’s reference appears to have been to witnesses who had been exposed to the off-limits immunized statements from the guards through leaks to the media. Department spokesman Boyd declined to comment about the context of the disputed e-mail, which hasn’t been released publicly.

The unsealed transcripts also provide details about the contentious relationships between the government prosecutors and a so-called “taint” lawyer put in place to determine what evidence could be used in the case.

The central characters were Assistant U.S. Attorney Kenneth Kohl, the case’s lead prosecutor, and Raymond Hulser, a deputy chief in the Public Integrity Section of the Criminal Division who had been tapped to filter out potentially tainted evidence.

The transcripts paint a picture of a prosecution team that disagreed with the advice provided by the taint team lawyer and bypassed protocols he put in place to keep tainted evidence out of their hands. Kohl obtained search warrants without Hulser’s consent and openly complained about Hulser’s role in the case to his superiors.

Initially, Hulser’s advice was passed to Kohl through Counterterrorism Section Chief Mike Mullaney, who acted as a liaison between the taint attorney and prosecution team.  ”It seems to me, looking at the e-mails, that they didn’t actually get the exact advice I had given them,” Hulser testified at one point. Later, in April 2008, Kohl and Hulser began communicating directly about the case, the testimony showed.

When the Justice Department inherited the Blackwater case from the State Department, it was under enormous public pressure to take action. But DOJ lawyers quickly realized that the immunized testimony of the five former Blackwater Security guards charged in the shooting presented enormous hurdles to prosecution.

Specifically, the defendants gave compelled statements to the State Department under a grant of immunity immediately after the 2007 shooting incident.

The Blackwater guards, who were contracted to provide security for U.S. government employees in Iraq, claimed they had fired in self defense after an attack by insurgents. But the government said the guards fired without provocation.

The defendants were Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten. North Carolina-based Blackwater Worldwide has since changed its name to Xe Services LLC.

Hulser, who had worked in the Public Integrity Section since joining the department in 1990, had extensive experience dealing with compelled testimony of government employees and public officials. In October 2007 he was assigned to head a DOJ “taint team” set up to prevent impermissible evidence from being used.

While Hulser’s advice wasn’t legally binding, he had the weight of the Criminal Division behind him. According to his testimony, Hulser was brought in by Benton Campbell, who was acting chief of staff for Assistant Attorney General for the Criminal Division Alice Fisher. (Campbell later was named interim U.S. Attorney for the Eastern District of New York). Hulser said he also was approached by Sigal Mandelker, a Deputy Assistant Attorney General in the Criminal Division.

Ultimately the case was transferred to the National Security Division because members of the Criminal Division had been exposed to potentially compelled testimony. Hulser’s points of contact in the National Security Division were then-Assistant Attorney General Ken Wainstein and Counterterrorism Section Chief Mullaney, who was head of the case’s investigation team and would come to serve as middle-man between Hulser and Kohl.

Almost from the start, Hulser’s advice was either ignored or contravened, according to Hulser’s testimony in the transcripts.

Hulser said that shortly after he was brought on to the “taint team” he created a series of protocols for how the FBI and Department of State agents involved with the case should proceed. Both the FBI and State Department agents never received the protocols.

Hulser also instructed the prosecution team to prevent FBI agents from obtaining copies of notes about the guards’ immunized Sept. 16, 2007 statements. Despite his warnings, the agents obtained them.

In April 2008, Hulser said he discovered that Kohl had obtained copies of the notes from the compelled interviews. Hulser said he had explicitly sent instructions, through Mullaney, to avoid obtaining that material.

“What I recall happened was, in April I found through this exchange… that Mr. Kohl had already gotten access to some notes of one of the agents who did interviews on September 16,” Hulser testified on Oct. 23, 2009. “It came as a surprise to me that they had those. And he expressed the view in e-mails that he thought I had already approved that. I had not.”

As Hulser continued to guide the prosecution, Kohl became frustrated, the transcripts show. On April 14, 2008, Kohl sent out an e-mail to discuss “Ray Hulser’s role in the investigation.” In the e-mail, which was not sent to Hulser, Kohl expresses his displeasure that Hulser has “injected himself into our pending document request at state.”

But Kohl wasn’t the only one who questioned Hulser’s advice. In his testimony, Mullaney said that Hulser’s view of the evidence was untested.

“I thought his advice was very conservative,” said Mullaney. “I mean, I hadn’t tested it yet, frankly. I thought there was going to come a point probably where we were going to have to sit down and discuss what was really protected … what wasn’t, whether it all was or not, whether his position was correct or whether the trial team’s developing position was correct.”

On April 18, 2008, Kohl, Hulser, and Mullaney gathered to discuss the case. During the meeting, Hulser and Kohl’s different views on whether or not to use the compelled evidence became apparent.

“My view was that the risk was such that they shouldn’t take it,” Hulser said in his testimony. “His view was that they had a good chance of arguing the other way.”

Read copies of the transcripts here, here, here and here.

CORRECTION: The initial version of this story failed to seek comment from the Department of Justice. It also did not reflect the department lawyers’ arguments before the court. And it inaccurately said that taint team attorney Ray Hulser testified that prosecutor Ken Kohl “went behind Hulser’s back” to obtain tainted evidence.

While Kohl did obtain evidence that Hulser had advised should not be available to the prosecution, the story also should have noted that Hulser testified he believed miscommunication — not deliberate misconduct — had occurred.

The story also inaccurately said Kohl “failed to distribute Hulser’s evidentiary protocols to FBI agents investigating the case.” In fact, the protocols were distributed to Michael Mullaney, chief of the Counterterrorism Section of the National Security Division, who testified that he passed the protocols to the FBI. Kohl did not receive the protocols.

Main Justice regrets the omissions and errors.

A selection of the transcripts from the Department of Justice’s failed case against Blackwater contractors are below.

Blackwater Transcript Seven

Blackwater Transcript Eight

A selection of the transcripts from the Department of Justice’s failed case against Blackwater contractors are below.

Blackwater Transcript Three

Blackwater Transcript Four

A selection of the transcripts from the Department of Justice’s failed case against Blackwater contractors are below.

Blackwater Transcript One

Black Water Transcript Two

Blackwater prosecutors Kenneth Kohl (left) and Jonathan Malis met in Baghdad in December 2008 with families of victims of the shooting. (Getty Images)

The Washington Post’s Del Quentin Wilber has a nice take-out on the saga of the government’s case against five former Blackwater guards, with an emphasis on the lead prosecutor, Assistant U.S. Attorney Kenneth Kohl.

The case stems from a shooting in a crowded Baghdad traffic circle in 2007 that left 17 Iraqi civilians dead. The incident inflamed anti-U.S sentiment in Iraq and fueled a debate here over the oversight of the private security firms in war zones. The former guards, who were escorting a convoy of U.S. diplomats, say they took fire and responded with appropriate force. Prosecutors say the guards fired without provocation.

Wilber pieces together the scene in Baghdad’s Nisour Square, as others have, and presents a fine summary of a federal judge’s ruling dismissing the indictment on the grounds that prosecutors used tainted evidence to build the case. (We’ve written about the opinion and the government’s subsequent appeal here and here.)

But much of the new material focuses on Kohl, a prosecutor in the National Security Division of the U.S. Attorney’s Office for the District of Columbia. The judge, Ricardo Urbina, scolded Kohl for disregarding the advice of a “taint” attorney, who was tapped to determine whether certain statements the guards gave to State Department investigators after the shootings could be used against them.

Kohl declined comment for Wilber’s story but wrote in an e-mailed statement, ”All of us who were involved in this case felt an obligation to the 34 victims who were killed or wounded at Nisour Square to do everything we could, within the bounds of the law, to bring this case to trial in an American courtroom.

“We don’t want federal prosecutors to flinch at taking on tough cases involving complex legal issues, and I worry that some of the reaction to the court’s ruling will have that effect.”

Kohl, 50, joined the department in 1985, after graduating from the Northern Illinois University College of Law. (He grew up in the Chicago area.) According to Wilber, the prosecutor was a fast riser who earned a reputation as an “aggressive and zealous advocate for victims.”

When Kohl was working homicides, he never lost a case, several of his colleagues told Wilber. His colleagues appeared equally impressed with his more recent work. Wilber reports:

In more recent years, he was assigned national security cases, including the years-long investigation into the anthrax attacks. In 2007, Kohl won a conviction against a Colombian rebel leader who took three Americans hostage. The man was sentenced to 60 years in prison.

Alex Barbeito, an FBI agent who worked on that case, said Kohl was meticulous and brave. “He came down to Bogota several times, despite death threats to U.S. prosecutors,” Barbeito said. “To me, he’s exactly the type of prosecutor an agent wants to handle complex international criminal cases.”

Kohl visited Baghdad three times during his investigation of the Blackwater guards. On one trip, Wilber reports, he had to dive under the bunk of his trailer, located in the Green Zone, when the compound was hit by rockets and mortar shells.

“And yet he still went back,” a fellow prosecutor wrote in an e-mail. “It would take a lot for me to go back there” after that.

It’s also worth noting that while Urbina used strong language to criticize the prosecutors, in a separate ruling the judge said their conduct did not warrant cutting off the government’s ability to bring new charges.

“The court is not persuaded that the additional, extreme sanction of dismissal with prejudice is justified under these circumstances,” Urbina wrote.

The Justice Department on Friday appealed a court decision dismissing charges against five former Blackwater guards involved in a 2007 shooting in Baghdad that left 17 Iraqis dead.

Vice President Joe Biden announced the government’s intention to file an appeal last weekend, after a meeting with Iraqi President Jalal Talabani.

Prosecutors say the guards opened fire in a crowded Baghdad intersection without provocation, killing or wounding more than 30 Iraqis, including women and children. Attorneys for the guards say their clients, who were protecting U.S. diplomats, took fire from insurgents and responded in kind.

U.S. District Court Judge Ricardo Urbina in Washington dismissed manslaughter charges against the guards in a harshly worded Dec. 31 ruling, in which he faulted Justice Department prosecutors for using tainted evidence to build their case and for abusing the grand jury process.

Many Iraqis were outraged by the decision, viewing it as evidence that the U.S. was not accountable for bloodshed in their country. Iraqi leaders have been collecting signatures for a class action against the security contractor, which changed its name to Xe Services last year.

Urbina’s December ruling invited comparisons to the the botched prosecution of former Sen. Ted Stevens (R-Alaska), whose conviction was erased last year because of government missteps.

In that case, Judge Emmet Sullivan, who sits on same court as Urbina, criticized the government for failing to disclose materials that could have aided in Stevens’ defense. Sullivan dismissed the case at Attorney General Eric Holder’s request, and then appointed a counsel to investigate prosecutors for possible criminal contempt.

Urbina, however, made no formal finding of misconduct, and in a ruling earlier this month, he said the Justice Department could seek a new indictment against the men. Urbina said prosecutors acted with “disregard” but concluded that dismissing the case — without prejudice — was punishment enough.

The government has not yet filed a brief explaining the grounds for appeal. In pretrial hearings, prosecutors argued that interviews the guards gave to the State Department after the shooting were part of the normal course of their job and could be used against them. Urbina ruled that interviews were compelled, which immunized the guards.

Attorney General Eric Holder and Vice President Joe Biden (photo Ryan J. Reilly).

Vice President Joseph Biden said the United States would appeal the dismissal of manslaughter charges against five Blackwater guards at a meeting in Baghdad with Iraqi leaders Saturday.

The New York Times reported that Biden expressed his “personal regret” for the Blackwater shooting in 2007, in which Blackwater guards fired their guns on a crowded Baghdad traffic circle, killing 17 people, including women and children. The incident has continued to create unwanted tension between the Iraqi and American governments as the U.S. plans to withdraw thousands of combat troops from Iraq by the end of August.

“A dismissal is not an acquittal,” said Biden after a full day of meetings with Iraqi leaders to discuss the nation’s election crisis.

“The United States is determined to hold to account anyone who commits crimes against Iraqi people,” the vice president added.

“While we fully respect the independence and the integrity of the U.S. judicial system, we were disappointed with the judge’s decision to dismiss the indictment, which was based on the way some evidence had been acquired.”

Judge Ricardo Urbina of the U.S. District Court for the District of Columbia threw out manslaughter and gun charges against five former guards late last month, finding that prosecutors used immunized statements to build their case. The dismissal sparked widespread anger in Iraq.

The defendants had accused prosecutors of holding back evidence from a grand jury, misrepresenting their case to the court and making public comments about the case that prejudiced the guards.

While Urbina agreed that prosecutors acted with “disregard,” he also said the misconduct was not so severe as to bar the government from investigating the men in the future, essentially leaving the door open for a new trial.

“This is great news,” Abdel-Amir Jihan, who was wounded in the Blackwater shooting, told the Times after Biden’s announcement. “The court was not fair to us. We felt great injustice when we heard the verdict. It was not right to drop the charges against them.”

Prosecutors can seek a new indictment against former Blackwater guards accused in a 2007 shooting that left more than 30 Iraqis injured or dead, a federal judge ruled on Tuesday.

Judge Ricardo Urbina of the U.S. District Court for the District of Columbia threw out manslaughter and gun charges against five former guards late last month, finding that prosecutors used immunized statements to build their case.

Before Urbina jettisoned the charges, the government filed a motion to dismiss its case against Nicholas Slatten, conceding it had used tainted evidence against him but reserving the right to pursue new charges.

He and another former guard, Donald Ball, subsequently asked Urbina to dismiss the indictment with prejudice, arguing that prosecutors engaged in misconduct and that the government would be unable to build another case without resorting, again, to tainted evidence

The men accused prosecutors of holding back evidence from a grand jury, misrepresenting their case to the court and making public comments about the case that prejudiced the guards.

In a 12-page opinion, Urbina said it was not his place to opine on whether the government had enough evidence to seek a new indictment. And while the judge agreed that prosecutors acted with “disregard,” the misconduct was not so severe as to bar the government from investigating the men in the future, he said.

“The court is not persuaded that the additional, extreme sanction of dismissal with prejudice is justified under these circumstances,” Urbina wrote.

The charges against the Blackwater guards arose from an incident in Baghdad’s crowded Nisur Square, in which more than 30 Iraqi civilians were killed or wounded. The Blackwater guards, who were contracted to provide security for U.S. government employees in Iraq, claimed they had fired in self defense after an attack by insurgents. But the government said the guards fired without provocation.

The Justice Department has not said whether it will appeal Urbina’s Dec. 31 ruling dismissing the indictment.

The Associated Press’s Matt Apuzzo spotted an interesting footnote in federal Judge Ricardo Urbina’s New Year’s Eve opinion dismissing an indictment against former Blackwater guards who were accused of killing Iraqi civilians.

On page 26 of the 90-page ruling, Urbina wrote that he is considering two motions to dismiss the indictment based, in part, on prosecutorial misconduct. The judge has already jettisoned the charges, citing what he called “reckless” government missteps in connection with off-limits interviews the guards gave to the State Department under a grant of immunity.

So what’s left to consider? Apuzzo reports that Urbina, of the District of Columbia federal court, is weighing a formal misconduct finding, which would trigger an investigation by the Justice Department’s Office of Professional Responsibility and possibly lead to sanctions against the government or individual prosecutors.

In the footnote, Urbina said he would issue a separate opinion addressing the two motions, which are under seal. No hearings have been scheduled.

Iraqi Prime Minister Nuri al-Maliki said on Monday that Iraq will sue  Blackwater Worldwide, following a federal judge’s decision to dismiss charges against five former security guards accused of killing Iraqi civilians.

Maliki’s office said in a statement that lawsuits against the private security firm, which changed its name to Xe Services last year, would be filed in the United States and in Iraq, Reuters reported.

Judge Ricardo Urbina of the U.S. District Court for the District of Columbia threw out the indictment last week, finding that federal prosecutors violated the defendants’ constitutional rights by building the case with compelled testimony given by the guards to the State Department under a grant of immunity.

The indictment stemmed from a 2007 shooting in a crowded Baghdad square that left 17 Iraqi civilians dead. Prosecutors allege that the guards opened fire without provocation while they where escorting U.S. personnel. The guards say they fired in self-defense.

An agreement with the Coalition Provisional Authority that governed Iraq after the U.S.-led March 2003 invasion rendered Xe and its employees immune from prosecution in Iraq. That immunity was lifted last year, but it’s not clear how an Iraqi case against the guards or the security firm would circumvent the agreement in place in 2007.