Commentary

Justice Is Inept as Well as Blind

By David Isenberg
This article appeared in the Huffington Post on March 3, 2010.

One of the mysterious aspects of the decision last December 31 by Federal District Judge Ricardo Urbina to dismiss all charges against five guards from Blackwater over the killing of 17 Iraqis in Nisoor Square, Baghdad, in 2007, was just how the Justice Department lawyers could have bungled the case so badly.

As I previously noted another development took place October 29, 2007, when it was revealed that potential prosecution of Blackwater guards may have been compromised because the guards received immunity for statements they made to State Department Bureau of Diplomatic Security officials investigating the incident, even though they did not have the authority to do so. Prosecutors at the Justice Department, who did have such authority, had no advance knowledge of the arrangement.

Judge Urbina concluded:

The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility.

In short, the government has utterly failed to prove that it made no impermissible use of the defendants’ statements or that such use was harmless beyond a reasonable doubt.

Accordingly, the court must dismiss the indictment against all of the defendants.

Now, thanks to the Bush Administration, we are accustomed to news about government lawyers bending the facts, twisting the law or even ignoring it, as all the news about past torture memos has illustrated, but this is different. This is basic law school 101 type stuff here. How could Justice bungle it so badly?

Well, the answer may have been simpler than we thought. They are simply incompetent. At least that seems to be the view of the group Citizens for Responsibility and Ethics in Washington (CREW) which yesterday asked Justice Department Inspector General Glenn fine to investigate the Criminal Division’s inadequate training and supervision of line attorneys. CREW based its request partly on the dismissal of the indictments of four Blackwater security guards statements of the defendants in pursuing the case. CREW notes that with respect to using immunized testimony that it could not have been done without the sign-off of at least one supervisor.

CREW says that the IG should investigate because the cases suggest a bigger problem: overall poor supervision and case management and inadequate training.

CREW’s Executive Director Melanie Sloan stated, “The fact that prosecutors have bungled such well-publicized matters - where you’d think everyone would be at the top of their game - suggests misconduct, ineptitude and insufficient training may be rampant in less visible matters where defendants are not represented by elite criminal defense lawyers, who have the tools necessary to expose these deficiencies.” Sloan continued, “All Americans lose when those charged with grave offenses escape prosecution not because of their innocence, but because the Department of Justice has failed to properly train and supervise its lawyers. An investigation by the IG and recommendations for systemic reform would help restore public confidence in the department.”

Reading CREWS letter to the IG one is left with the impression that at least some Justice Department lawyers make the Keystone Cops look like Seal Team 6 in comparison.

The fact that prosecutors have bungled such well-publicized matters in which, one might have expected, the most care had been taken, suggests misconduct, ineptitude and insufficient training may be rampant in less visible matters where defendants are not represented by elite criminal defense lawyers, who may have the tools necessary to expose those deficiencies.

And, if incompetence isn’t enough of an explanation there is always heavy handed interference by the Executive Branch. A story in today’s New York Times by James Riesen says

An official at the United States Embassy in Iraq has told federal prosecutors that he believes that State Department officials sought to block any serious investigation of the 2007 shooting episode in which Blackwater Worldwide security guards were accused of murdering 17 Iraqi civilians, according to court testimony made public on Tuesday. …

The documents made public on Tuesday show that before the December dismissal, prosecutors and Federal Bureau of Investigation agents working on the Nisour Square case took the stand in October to argue that they had plenty of untainted evidence. In a closed-door hearing, they also contended that they had evidence that, in the immediate aftermath of the shootings, there had been a concerted effort to make the case go away, both by Blackwater and by at least some embassy officials.

In fact, prosecutors were told that the embassy had never conducted any significant investigation of any of the numerous shooting episodes in Iraq involving Blackwater before the Nisour Square case, according to the documents.

This is not the first time State Department protection of Blackwater has come up. Some in industry believe that the past immunity Blackwater received from its State Department contract encouraged it to emphasize its mission — the protection of its clients — to the exclusion of all other considerations: a sort of “shoot first, ask questions later” attitude.

The State Department reportedly overlooked repeated warnings from U.S. diplomats in the field that guards were endangering Iraqi civilians and undermining U.S. efforts to win support from the population.

Years ago the press reported that the State Department interceded in a congressional investigation of Blackwater, ordering the company not to disclose information about its Iraq operations without approval from the Bush administration.

The State Department official, Kiazan Moneypenny, wrote Blackwater vice president Fred Roitz to “advise” him of Blackwater’s obligations under the State Department’s contract. Among them was this statement: “All documents and records (including photographs) generated during the performance of work under this contract shall be for the sole use of and become the exclusive property of the U.S. government.” These obligations, according to the contract, exist in perpetuity, not just until the contract expires. As a result, Moneypenny told Roitz to make “no disclosure of documents or information generated under [the contract] unless such disclosure has been authorized in writing by the Contract Officer.”

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.