Today's Boston Globe reports that the prosecution of Blackwater employees for shootings in Iraq might be difficult because the guards received immunity before speaking to State Department employees. Federal law provides key protection for government employees facing an internal investigation.
1. Garrity v. New Jersey, 385 US 493 (1967). Under Garrity, a government employee cannot be faced with the choice between self-incrimination and termination. If the employee is coerced to speak under threat of termination, the statements cannot be used against him in a subsequent prosecution. According to an FCC source, employees faced with an investigation should be given a "Garrity Warning," in which "The individual is apprised of his or her right to remain silent if the answers may tend to incriminate him or her; that anything said may be used against him or her in either a criminal or administrative proceeding; and he or she cannot be disciplined for remaining silent. " So, in a Garrity situation, the employer gives up their right to discipline the employee for their silence, but retains the right to prosecute the employee for anything they might say. Thus, Garrity is said to cover "voluntary statements."
2. Kalkines v. United States, 473 F.2d. 1391 (1973). Under Kalkines, a government employer can be required to answer questions, and subject to discipline by the employer for his responses, if the possibility of prosecution has been removed. Apparently, in the Blackwater case, the contractors were given a promise of immunity from prosecution under Kalkines and so were required to answer questions, but now would face only disciplinary, and not criminal, consequences.
It is unclear from reports whether the fact that the individuals involved in the shootings were not government employees, but were employees of a government contractor, would affect their rights under Garrity and Kalkines.
Information on other employment issues in Massachusetts is available at Mass. Law About Employment Termination.
