The Blackwater Appeal: Politics Commandeer the Courtroom
An appeal by the government is obviously permissible. However, the opinion of the federal district judge seems to have few if any holes, and filing of the appeal seems more likely intended to win hearts and minds in Iraq than to suggest any legal merit. The case can now go on for years and might conceivably reach the Supreme Court. The appeal may well please many in Iraq who have little understanding of the U.S. legal system or, for that matter, of the separation of powers concept. However, it will prove very inconvenient and expensive for the Blackwater guards, and will put their lives on hold for the duration. It will also further clog up the judicial system. The United States legal system is not a plaything, to be abused whimsically to put on a show for foreign countries, even though that seems to be in vogue these days.
As noted here, the Blackwater trial was a scandal:
The scandal is that the Justice Department’s case against five former security guards for the military contractor unraveled … in what appears to be another instance of gross prosecutorial misconduct, as abusive Justice lawyers went after an unsympathetic political target. …
Advertisement[One] question is whether prosecutors felt they could get away with such abusive behavior because Blackwater was such a politically unpopular defendant. The firm had political ties to Republicans, and Democrats and their media allies had made Blackwater a whipping boy to further undermine public support for the Iraq war.
Although Judge Urbina was appointed by President Clinton and is said to be a “liberal” (whatever that means) judge, if that was the strategy it didn’t work.
An article in the New York Times quoted an attorney for one of the guards as follows:
‘By announcing this decision in Iraq, through an elected official, the United States makes clear it has decided to do what is politically expedient, rather than what is just based on Judge Urbina’s unshakable findings that the prosecutors engaged in gross misconduct and intentionally violated Mr. Ball’s constitutional rights. … In the end, the United States has shown it will pursue an innocent man, rather than justice.”
Dismissal of the charges was without prejudice, meaning that the government could try the case again from scratch — if it could find witnesses untainted by the prosecutorial misconduct evidenced in the original trial, secure an indictment based on untainted evidence, and proceed to trial without violating the United States Constitution and case law. Pulling together enough untainted evidence to secure a valid indictment and enough to proceed to trial with a reasonable chance of winning would be chancy at best; the most likely result would be, once again, the government being thrown out on its ear. Most likely, that would happen fairly quickly. Accordingly, the government may well have decided to pursue an appeal rather than to start over at the beginning because the appeal would take longer, and within a few years it might not much matter what the folks in Iraq think.
However, at least one additional possibility seems worth considering. The government knows that when it tries Khalid Sheik Mohammed and other terrorists in federal criminal courts, the Blackwater case and the rather clear law on which it is based will present humongous problems in securing politically necessary convictions. Attorney General Holder has all but promised that KSM will be executed; Holder’s chances of being “thrown under the bus” are decreasingly slim in any event. Independent of Blackwater related problems, there are many other difficulties to overcome. With the district court opinion in the Blackwater case on appeal, reliance on it might be slightly more difficult for the defense in those terrorist cases, but only slightly. The case law relied upon in the Blackwater case will likely remain firm. A district court in New York or elsewhere would not in any event be bound by the Blackwater decision (by a district court in another circuit), although the legal reasoning in the Blackwater case might nevertheless be deemed of persuasive value.
This suggests to me that the White House reaction to the January 20 testimony of administration officials — that the decision to try the underpants bomber in a civilian court was ill-advised — struck a painful nerve at the White House. I think the decision-makers there went into panic mode. If so, rational decisions were neither being made nor to be expected. Here is the response of Dennis Blair, a political appointee and the director of national intelligence, on January 20:
The nation’s intelligence chief said Wednesday that the Christmas Day airline bombing suspect should have been treated as a terror suspect when the plane landed. That would have meant questioning him initially by special interrogators rather than standard law enforcement officers. …
[He] was not consulted on whether Abdulmutallab should be questioned by the recently created High-Value Detainee Interrogation Group, or HIG.
“That unit was created exactly for this purpose. We did not invoke the HIG in this case. We should have.”
Under questioning by Sen. Susan Collins, R-Maine, Blair and Secretary of Homeland Security Janet Napolitano said they were not consulted before the decision was made to not use the high-value detainee interrogation group. Also, Michael Leiter, chief of the National Counter Terrorism Center, said he was not consulted. “That is very troubling,” Collins said.
It is unclear who made the decision to try Mr. Abdulmutallab in a civilian court; it seems to have been made with no adult administration supervision. If true, that is something for which no viable excuse can be offered.
Blair’s testimony infuriated the Obama administration:
One senior official described the comments by Blair … as misinformed on multiple levels and all the more damaging because they immediately fueled Republican criticism that the administration mishandled the Christmas Day incident in its treatment of the accused Qaeda operative as a criminal suspect rather than an enemy combatant.
“People are annoyed, angry, and frustrated about this,” said the senior official, who asked not to be identified, speaking about Blair’s testimony. The official added that the White House has ordered Blair to “correct” his remarks. “He’s taking a mulligan on this,” the official said.
Blair’s office promptly issued a “clarification,” noting that his words had been misconstrued.
That’s abject nonsense. His words were entirely clear and the White House did not seem to think they had been “misconstrued” at all. He could not have “corrected” his testimony without contradicting it, and possibly opening himself to charges of perjury.
Whatever may have been the reasoning behind the decision to appeal the judge’s ruling in the Blackwater case rather than to start over and do it right, it is offensive to see the Blackwater guards, let alone the U.S. judicial system, held hostage to the Obama administration’s political agenda. A war on sanity seems to have trumped the war on terrorism.
The politically correct Obama administration perceives the Blackwater guards as a bunch of white guys who killed a lot of dark skinned people. Thus, they must be guilty of murder. How can anyone disagree? Don’t white men with military backgrounds normally carry out attacks on racial minorities? Don’t they usually vote Republican? What more do you need to know? It is therefore mandatory that Blackwater’s employees constantly be harassed so that Obama can prove to the world that America is a virtuous nation. Am I exaggerating? Nope, not even slightly. It really is that simple. The dubiously educated Obama was taught during his Ivy League years that white men are disgusting lowlifes who need some straightening out. They are the scum of the Earth.
Don’t forget that no criminal charges were brought against the Black Panther types intimidating voters in Philadelphia. Those radicals obviously were downtrodden victims of oppression. What else could they do when the white establishment is trying to disenfranchise them? Obama also took for granted that a white, male police officer was trampling on the rights of his buddy, Skip Gates. We presently have two justices systems in the United States. One is for black citizens and entirely different one for whites—especially if they are males.
This is a good article. It is exposing the oddest conflict the left has. The left demands the civil rights of about everyone EXCEPT those they are targeting. If they target someone they will violate every rule in then book and every right in the Constitution. Could it be their desires have nothing to do with rights, but everything to do with power? For those who follow my blog you know I’ve been doing posts about Communist China during the 1966-76 Cultural revolution. The marked similarities between their system of “justice” and our federal system under lefties is striking. In Mao’s world you could be a friend on moment and a “counterrevolutionary” or a “capital roader” in the next. Either gets you tried and convicted as though your judge was Roy Bean or Isaac Parker of Fort Smith. The point is that once you were accused you were thought guilty and convicted by the the leaders, the bureaucrats and the public. The trial was just for sport and publicity. In one case a true Communist leader, faithful to the cause and Mao, was undermined by another political group. They commenced an investigation and had thousands of people look over millions of documents to prove the man, in forty years, had committed three minor infractions. They used those three to imprison him for years. The federal government can be like that under the wrong leadership. Notice how the left hated Bush for his Patriot act. But now hounding Blackwater employees with bad evidence, poor procedure and misconduct is now a good thing. Wow.
http://truthandcommonsense.com/2010/01/02/justice-blackwater-and-the-shoe-being-on-the-other-foot-lefties-will-go-nuts/
The worst of it is what I talked about in my last post about this issue. Several leaders and bureaucrats have already spoken openly about how they are going to convict KSM and kill him. Imagine that being said about a regular Joe Blow citizen! Is he guilty? Sure. But Obama and his crew have decided to treat him like a citizen and with that comes the presumption of innocence (unless you are with Blackwater).
http://truthandcommonsense.com/2010/02/03/this-is-what-happens-when-terrorists-are-tried-in-civilian-courts-a-lesson-that-should-be-learned-by-all/
Here is the rub. The same issues that freed the Blackwater people are in play with KSM in civilian courts- Bad evidence gathering, forced confessions, even unlawful detention and torture. Here is part of the post-
“Not only is this an issue, but I’m sure there are many others that can be exploited by a smart legal team of lawyers who have more love for the argument than for justice. And believe me, there are a ton wanting a shot at this case. Can you imagine the amount of publicity you would receive for getting off a terrorist or exposing the weakness of the government’s case. Speaking to that, I understand KSM recanted his confession. If that is so, in a civilian court that statement is out. No Miranda, no statement. I’ve been on the wrong end of that decision a few time myself. Even when I was doing it right some judge decided, on his own, I didn’t read them time, or at the right time, or clear enough or… You get my point. We spent years studying the newest case law trying to stay up to date on the rulings. I can tell you KSM’s rights were violated, which means anything gained is out and will never see the inside of a courtroom. It can’t. The government cannot say he has the rights of a citizen in one breath and enter tainted evidence in the next.”
Playing this game is dangerous. Obama doesn’t care because nobody he cares about is in danger, we are. And after looking at his actions, it is obvious he doesn’t care about us.
“” We presently have two justices systems in the United States. One is for black citizens and entirely different one for whites—especially if they are males. “”
Just as we presently have two airport-screening systems in the United States. One is for Islamic males of middle-eastern appearance and aged between seventeen and forty-five and the other, an entirely different one, applies only to “white” grandmas and grandpas of Scandinavian ethnicity. Especially if they are females.
Go … um … figger.
Roger Kimball hit the hammer on the head with the nail with this.
Zeus help us all.
Roger Kimball’s post is quite interesting:
“The Civil Rights Division encourages qualified applicants with targeted disabilities to apply. Targeted disabilities are deafness, blindness, missing extremities, partial or complete paralysis, convulsive disorder, mental retardation, mental illness, severe distortion of limbs and/or spine”
Dan Miller is an attorney and should be well acquainted with the awful 1971 U.S. Supreme Court decision, Griggs vs. Duke Power that essentially requires the hiring of the mentally retarded. The absurd disparate impact doctrine remains the law of the land. It is also the number one reason why we can do little to improve airline security.
I am also convinced that if a black Obama supporter owned Blackwater and most of the contractors involved in the shooting were also men of color—they would have never been indicted. This nonsense is probably nothing more than a lynching of “racist” white men.
An administration that prosecutes Blackwater AND the Seals.
An administration that calls “neonazis” the people of the tea parties.
An administration that gives Miranda rights to a bloody terrorist.
An administration that doesn’t prosecute the black panthers who tried to intimidate the voters.
Shall I go on or we get it ?
Huh? Attorney General Holder now claims that he made the decision to charge the Christmas Day terror suspect in the civilian system with no objection from all the other relevant departments of the government. He also claimed, “No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.” (emphasis added)
Strange, I seem to recall some arguably inconsistent testimony by various Obama Administration officials on January 20.
English is a marvelous language; so many statements can mean so many different things to so many people.
Holder may, of course be correct. It may be that fewer than “all” of the other relevant departments of government objected. It may also be true that “no agency,” as distinguished from no human head of any agency, supported non-civilian detention of Abdulmutallab or later said that it was stupid.
Holder also said that the possibility of detaining Abdulmutallab in the U.S. military system under the law of war was explicitly discussed in the days following the arrest, including at a Jan. 5 meeting that included President Barack Obama and senior members of the national security team. I seem to recall that the damage had already been done by then. It would have been fun to have been a fly on the wall at the January 5 meeting.
David Thompson, re # 5 — Yes, I know. Maybe it explains a lot about what’s happening. Still, I have a bit of professional pride left and hope there are not too many retarded attorneys in practice; lunatic attorneys? Well they seem to be available in abundance.
“An administration that doesn’t prosecute the black panthers who tried to intimidate the voters.”
It is worse than you say. They prosecuted and won by default because the New Black Panthers did not show in court. Justice then declined to continue and reached an agreement with one of the defendents which expires`in time for him to be able to do the same in the 2012 elections.
Oh. and they just relocated the career Justice official who brought the charges.
None of this surprises me in the least. The Obama White House has been itching to put someone that they can associate with Bush on trial for political incorrectness. They realized that they can’t get Bush himself, and the J.D. has now concluded that they can’t get John Yao, which means they can’t get Cheney either. So the crap flows downhill and eventually lands on some non-politically-connected Blackwater employees, who no doubt will be portrayed as having been at Bush’s right hand, even though they’ve probably never met the man.
Byron
When are we going to impeach O.
Holder definitely won’t be thrown under the bus. Absolutely not. But he might have family responsibilities that get in the way of him fulfilling his duties as AG, and I’m sure that the President would still consider him a good friend and a trusted advisor who could serve the administration on any number of vitally important endeavors in the future.
I for one am absolutely disgusted with the Christian EXCLUSIVITY being shown by the Obama administration by calling this guy the ‘CHRISTMAS DAY bomber’ dont they know it should be the “HAPPY HOLIDAYS bomber’ I am sure all right thinking libtard moonbats will support me on this.
Christmas Day Bomber when we are not allowed to reference Islam.
George Bush and Donny Dumsfeld, should be held accountable for creating this “ss” style extra military force that was exempt from the geneva convention during the height of our un-authorized war years. These hundred thousand strong private thugs need to be disbanded immediately, and forever.
They created more terrorists, and more hatred for our brave soldiers and our beloved country than they were given any real credit for. And they did it for the love of money….
Shame on them. And shame on those that suppor them.
nuff said…
@15. Poor Citizen:…
Osama.. is that you?
It seems to me if the professionals feel this is not a case that should be appealed and if the Judge dismissed the charge on the basis of conduct, then there should be a remedy of civil penalty, not to be paid from government funds but fromt he wallets of all involved int he travesty of justice. That include Mr Obama and Mr. Holder, perhaps discovery will elevate this case to a criminal abuse of power case.
The price of poker seems to have gone up a tad.
A missing Iraqi-American contractor [Issa T. Salomi] was kidnapped by Shiite militiamen who lured him into central Baghdad by promising to help him find distant relatives, an Iraqi defense official said Saturday.
Salomi says his abductors are demanding the release of militants “that resisted the occupation.”
“The second demand is to bring the proper justice and the proper punishment to those members of Blackwater company that have committed unjustifiable crimes against innocent Iraqi civilians,” he said. “And to bring justice by proper compensation to the families that have been involved in great suffering because of this incident.”
Compensation is one thing. However, the U.S. government would have a difficult job in trying the Blackwater guards again, as noted in the article. Nor, one hopes, does it have much leverage improperly to influence the D.C. Circuit in how it decides the Blackwater appeal; at least I hope it doesn’t.
Here is a Washington Post providing a bit of human interest on the Blackwater case.