JURIST Guest Columnist Byron L. Warnken of the University of Baltimore School of Law says that the US State Department's reported grant of "immunity" to Blackwater security guards making sworn statements concerning the killings of 17 Iraqi civilians in Baghdad in September means much less than many might suppose...
Fifth Amendment Privilege Against Compelled Self-Incrimination
An understanding of "immunity" and "Garrity" begins with an understanding of the Fifth Amendment privilege against compelled self-incrimination. The Fifth Amendment entitles each of us to refuse to answer questions posed by the government if the answer may tend to incriminate us in a future criminal proceeding, and it entitles each of us to refuse to testify. If the government obtains a statement in violation of the Fifth Amendment privilege, that statement is inadmissible in a criminal trial.
The Fifth Amendment privilege against compelled self-incrimination does not apply and may be taken away by the government -- if the government provides an alternative protection that is just as broad as the Fifth Amendment privilege. The only thing that broad is immunity. The question is how much immunity must be granted to permit the government to take away the Fifth Amendment privilege.
"Use and Derivative Use" Immunity
The term "immunity" refers to either "use and derivative use" immunity or "transactional" immunity. In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that "use and derivative use" immunity is broad enough to "replace" the Fifth Amendment privilege against compelled self-incrimination. Since 1972, when the government grants "immunity," it usually grants only the more narrow "use and derivative use" immunity and not the broader "transactional" immunity.
When the government provides "use and derivative use" immunity, the government may still criminally prosecute the immunized individual. However, when so doing, the government may not use that individual's immunized statement and may not use any evidence that derives from that statement. If the government grants "use and derivative use" immunity, and then prosecutes, the prosecution has the burden to prove that its evidence was derived from a legitimate source wholly independent of the immunized testimony. On rare occasions, the government provides "transactional" immunity, which means that the government has agreed not to prosecute the immunized individual for any crimes arising from that "transaction." This case apparently does not involve "transactional immunity," meaning that the government may still prosecute criminally, despite immunity.
Immunity is not typically negotiated. Instead, the government imposes immunity on an individual, and the immunized individual is compelled to testify. If an individual is granted immunity, yet refuses to testify, the individual may be held in contempt of court and incarcerated until he or she "purges the contempt" by testifying.
When the government grants immunity, it is usually for one of two reasons. (1) The government already has enough evidence to convict, has no fear of the immunized individual "getting away," and compels testimony to obtain information to convict others. (2) The government does not have enough evidence to convict, but is willing to take the risk of having the immunized individual "get away" in order to "catch a bigger fish."
The media has thrown around the word "Garrity." This confirms that any immunity granted in this case is "use and derivative use" immunity and not "transactional" immunity." The Garrity issue is presented when the one granting immunity is the "boss" of the one being immunized. For example, a police officer, government employee, or government contractor, such as Blackwater, is suspected of criminal conduct.
Prior to 1967, the government's position was that if you want to be a police officer, government employee, or government contractor, you must be willing to "leave your constitutional rights at the door." As such, the government would require these individuals to waive their Fifth Amendment privilege as a condition of being a police officer, government employee, or government contractor.
The police cannot come to you or me and say, "if you do not tell us what we want to know, we will get you fired." However, historically, when the suspect was a police officer, government employee, or government contractor, the investigators could make the suspect choose between exercising constitutional rights and keeping a job or a contract.
The Supreme Court addressed this situation in a series of cases, starting with Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, police officers were interrogated about a conspiracy to obstruct traffic laws. Threatened with termination if they invoked the Fifth Amendment, the officers gave incriminating statements and were successfully prosecuted. The Supreme Court held that the officers' statements were involuntary because they were forced to choose between exercising their Fifth Amendment privilege and remaining a police officer.
Other Supreme Court cases followed Garrity. In Gardner v. Broderick, 392 U.S. 273 (1968), the Court held that it was unconstitutional to terminate a police officer for refusing to answer questions before a grand jury. In Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation, 392 U.S. 280 (1968), the Court held that it was unconstitutional to terminate government employees for refusing to waive their Fifth Amendment privilege. In Lefkowitz v. Turley, 414 U.S. 70 (1973), the Court held that government contractors could not be terminated or deemed ineligible because they asserted their Fifth Amendment privilege.
In sum, the line of cases that begin with Garrity hold that the Fifth Amendment privilege of police officers, government employees, and government contractors is no bigger and no smaller than the Fifth Amendment privilege of the rest of us. Using these cases, the Supreme Court attempted to balance the Fifth Amendment privilege of these individuals with the government's right, power, and duty to require accountability, particularly in the area of public safety. This line of cases permits the government to have it either way, at its option, but it does not permit the government to have it both ways. By that I mean that the government may compel the statement and use it to terminate employment or a contract, but not also use it to prosecute.
The bottom line is that if the government does not impose immunity, the police officer, government employee, or government contractor may invoke the Fifth Amendment privilege against compelled self-incrimination, just like you and I can, including not testifying and not being terminated from employment or contract.
Alternatively, this also means that if the government does impose use and derivative use immunity, it has afforded the full measure of the Fifth Amendment, and the immunized person has no Fifth Amendment privilege "left to spend." As such, the government may compel answers to questions narrowly tailored to the job or the contract, and may terminate based on either (1) the failure to answer narrowly tailored questions, or (2) the content of the answers, if sanctionable.
In the Blackwater case, the government's primary goal is probably to "clean up this mess," to establish rules to minimize the chance of its recurrence, and to terminate any "bad apples." Thus, the government may grant "Garrity use and derivative use immunity," may ask questions narrowly tailored to the job or the contract, and may "terminate" bad individuals based on the content of those compelled answers. The government would be deciding that the value, to the government, of possible termination outweighs the value, to the government, of a successful criminal prosecution. Of course, even when granting use and derivative use immunity, the government may still prosecute, provided it does not use any immunized statements or any evidence derived therefrom.
Thus, once Blackwater personnel have been granted "use and derivative use" immunity, they may be compelled to answer questions, narrowly tailored to their employment or contract, without violating the Fifth Amendment. In such scenario, the Blackwater personnel may be prosecuted criminally, but their immunized statements and evidence derived therefrom may not be used in the criminal proceeding, and only "independent" evidence may be sued. Of course, their statements may be used to have Blackwater personnel terminated and to have Blackwater contracts terminated, depending on the content of the immunized statements.
In sum, "Garrity protection" puts police officers, government employees, and government contractors in the same position as ordinary citizens accused of a crime, i.e., their compelled statements may not be used in a criminal proceeding, as well as evidence derived therefrom. However, unlike ordinary citizens, when police officers, government employees, and government contractors are granted immunity under Garrity, their compelled statements may form the basis to terminate their employment or contract if (1) they refuse to provide answers when compelled, or (2) they provide answers that demonstrate sanctionable conduct. Moreover, there is no right to perjury. Thus, they may also be prosecuted criminally, as well as terminated, if they commit perjury in the answers they provide.
On first blush, a non-lawyer might think that Blackwater personnel got a "free pass." After all, they got "immunity"! In fact, it probably means just the opposite. Immunity is a good tool for the government. First, it likely means that all of the Blackwater personnel will be terminated. Second, it likely means that Blackwater will lose some or all of its contracts in Iraq. Third, it may mean that the more culpable of the Blackwater personnel are prosecuted criminally.
Byron L. Warnken has been a law professor for 31 years at the University of Baltimore School of Law. He has argued in the Supreme Court, testified in Congress on the Garrity issue, and represented police officers in 32 different agencies.