Monday, October 29, 2007

Immunity in the Blackwater Investigation

David Johnston of the New York Times is reporting here that immunity deals were offered to certain Blackwater employees. And it sounds like the immunity may have come from the State Department as opposed to the DOJ. Who gave the immunity, the validity of the immunity, and the evidence procured may remain open questions for awhile.  But in the interim it is interesting to look at some of the law in this area.

Federal immunity is governed by 18 U.S.C. § 6001 et. seq. and it provides use immunity as opposed to transactional immunity.  This means that "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order." (18 U.S.C. § 6002). 

But who has the authority to grant this immunity and in what contexts does this immunity apply?  One place to look is 18 U.S.C. § 6004, which provides:

(a) In the case of any individual who has been or who may be called to testify or provide other information at any proceeding before an agency of the United States, the agency may, with the approval of the Attorney General, issue, in accordance with subsection (b) of this section, an order requiring the individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title.

(b) An agency of the United States may issue an order under subsection (a) of this section only if in its judgment--

(1) the testimony or other information from such individual may be necessary to the public interest; and

(2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

(emphasis added). Whether this is the controlling procedure, whether other statutes may offer more guidance, and whether there are cases that may assist here remains to be seen.  The Washington Post (here) discusses Garrity and Kalkines warnings. (see here for the FCC's explanation).

(esp)

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