The Blackwater Guards, KSM, and the American Judicial System
In 2007, Blackwater guards — under contract to the U.S. Department of State to provide protection to State Department employees and others in Iraq — allegedly went on an unjustified rampage at a busy intersection in Baghdad, killing at least fourteen innocent civilians and wounding others.
On December 31, 2009, Judge Urbina of a federal district court sitting in Washington, D.C., dismissed all charges (due to prosecutorial misconduct — using statements made by the guards shortly after the alleged event in subsequent investigations and in grand jury proceedings). The judge is now considering whether to issue a misconduct citation against the prosecution. That would be quite an embarrassment to the Department of Justice.
Yet based on what happened, it would be an appropriate embarrassment.
The statements of the guards had been made under compulsion, as well as under promises of immunity from prosecution grounded in their statements. The compulsion and the promises of immunity were contained in written forms signed by the guards at the time of their statements:
I, _____________, hereby make the following statement at the request of _____________, who has been identified to me as a Special Agent of the U.S. Department of State, Diplomatic Security Service. I understand that this statement is made in furtherance of an official administrative inquiry regarding potential misconduct or improper performance of official duties and that disciplinary action, including dismissal from the Department’s Worldwide Personnel Protective Services contract, may be undertaken if I refuse to provide this statement or fail to do so fully and truthfully. I further understand that neither my statements nor any information or evidence gained by reason of my statements can be used against me in a criminal proceeding, except that if I knowingly and willfully provide false statements or information, I may be criminally prosecuted for that action under 18 United States Code, Section 1001.
From the pre-trial proceedings in federal district court in late 2009:
… this court convened a … hearing to explore whether the government had made any use of compelled statements during its prosecution of the defendants. During this hearing, which spanned three weeks, the parties presented testimony from twenty-five witnesses, including the government’s entire prosecution team, the lead FBI agents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.
From this extensive presentation of evidence and argument, the following conclusions ineluctably emerge. In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on [compulsion and immunity] … issues. … [T]his course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the … hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury.
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.
Put even more plainly, their Fifth Amendment rights against self-incrimination were violated in spades. Prosecutorial zeal can be a problem when it causes the prosecution to go off the tracks. Here, it was most likely led in that direction by the intense interest in Iraq in seeing “justice” done.
The circumstances in which the alleged massacre occurred are set forth well and at great length in the court’s opinion, but should perhaps be summarized here. On September 16, 2007, the defendants were part of “Raven 23,” a Blackwater tactical support team. The team had four heavily armed vehicles and received a message that an improvised explosive device had detonated in the vicinity of a compound where U.S. officials were meeting with Iraqi officials. They went to secure an evacuation route for the American officials and for the Blackwater team providing their security. A shooting incident occurred in which at least fourteen Iraqis were killed and others were wounded. The government contended that the dead and wounded were unarmed civilians who were the victims of unprovoked violence by the defendants. The defendants maintained that they came under attack by insurgents and that their actions constituted a legitimate response to a mortal threat. The U.S. government came under substantial pressure from the government of Iraq to permit the Blackwater guards to be tried by an Iraqi court. Instead, they were returned to the United States for trial.
The United States government is very disappointed with the judge’s ruling. Also:
The Iraqi government regrets the decision. … Investigations conducted by specialized Iraqi authorities confirmed unequivocally that the guards of Blackwater committed the crime of murder and broke the rules by using arms without the existence of any threat obliging them to use force.
my understanding of miranda would have it only apply when taken into custody by the government. If it was just some guy from Detroit sitting on his chest I imagine anything he screamed during that time would be admissible.
The left has been trying to undermine and obviate the Constitution for years–perhaps as far back as FDR. The called it a “living document”, they found “rights” in the penubra of a clause or article, they made up a “separation of church and state” etc. The end result for them is to do away with the Constitution in favor of their own document so that they can “fundamentally” change America.
The rewritting of the law and in this case the granting of citizenship rights and the protections of our law to non-citizens and unlawful combatants and terrorists is just another way of telling America they (the left) does not believe in our Constitution.
For marxism to triumph our Constitution and our laws have had to be dismantled. And the left has exceeded quite well at their life’s work. They can brazenly do what they want to our system of government and laws and nobody says a word… In the words of our Messiah’s beloved spiritual advisor: “our chickens have come home to roost.”
Good outcome so far, but it can change.
Your stated premise that “We have an excellent system” is ridiculous.
God help anyone caught in the Kafka web of the US “justice” bureaucracy.
Re Comment # 1– As noted in the article, There is thus far very little public information about what happened to him following his removal from the aircraft, other than that he was asked a few questions. When advised that he could do so, he requested counsel and followed advice to shut his mouth. Now, additional information is coming out, including that
Abdulmutallab’s lawyers didn’t get the case until he was charged the day after the failed attack. By then he had talked to investigators about training with al-Qaida operatives in Yemen.
I’m not concerned about what he may have said to fellow passengers. What he said to investigators, however, may present problems.
Somewhat different and far greater problems will likely be presented in the civilian trial of KSM, a long time resident of GITMO, who may have been coaxed to say incriminating things to avoid participation in local water sports and other activities. In a recent court of appeals decision affirming the conviction of Zacarias Moussaoui, it was noted that
According to KSM, Bin Laden first pursued the idea of the planes operation in 1998. KSM stated that the planes operation included plans for a first and second wave of attacks and that “the original plan called for Moussaoui to lead the [second] attack operation in the [United States].” . . . The first wave of attacks was to be carried out by Arab al Qaeda associates on the East Coast. The second wave of attacks was to be carried out by non-Arab associates (such as Moussaoui) on the West Coast because KSM believed the non-Arabs would still be able to operate in the heightened security expected after the first wave.
There is probably lots of other incriminating stuff out there. Since KSM will presumably be given all of the rights against self incrimination discussed in the Blackwater case, his trial is likely to turn into a multi-ring circus.
Opps — please close the italics tag at the end of the next to last paragraph in my previous comment. Thanks
Its about time the blackwater case got dropped… the problem is the government still won… they cost them hundreds if not millions of dollars in lawyers fees on BS charges. The fact that the charges were filed at all and were laughed out of court right away is frankly scary. The real question of justice will be if the government is forced to pay all the lawyer fees.
The Blackwater guard’s case would probably have never made headlines had a Democrat president been in the White House. The leftist legal establishment took full advantage of a golden opportunity to damage the Bush administration. Something also similar occurred in the Senator Ted Stevens fiasco. In the back of their minds, if not even explicitly, the whole case was simply an excuse to help the Democrats gain power.
George W. Bush did next to nothing to hinder the crazies within his own Justice Department. He felt that he had to let them do whatever they thought necessary. In other words, Bush was a sucker. He naively assumed that the American Constitution meant something to these radical lawyers. He could not comprehend the harsh fact that these postmodernist ideologues have no hesitation in manipulating the law in order to advance a leftwing agenda.
This has been one of my bugaboos for many years now, pretty much ever since the war started. Back in the day, we fought conventional wars against other nations. When the war ended, the other side surrendered (typically) and we repatriated the Prisoners of War we captured back to their home country. Some of them weren’t that happy with the way we treated them during the war, but the labor of rebuilding the country after the war, and the aid we spent helping, overcame most of that animosity. Old enemies became friends in the aftermath of war.
Now we fight wars against entities that don’t have borders or capitol cities. We don’t declare war against them (something that troubled me from the start; I still think we should have made the declaration) and when we capture people fighting on their side, we have a little problem: what to do with them? Back during those days I cited above, someone fighting against American troops, but not wearing a uniform, would be shot after what is called a drumhead court martial, so called because historically you’d supposedly use a drum for a desk on which to decide the case. They did this with some of the German commandos who infiltrated American lines during the Battle of the Bulge. Now, of course, such a course is impossible: there are people who are opposed to killing any terrorist, regardless, let alone killing an unarmed one we’ve captured.
If we release them after a while, they return to where they were, find another gun, and we wind up fighting them again. If we capture them again, I doubt we’ll find it in ourselves to shoot them the second time, either. It becomes a “catch and release” program, and an exercise in futility.
Prosecuting most of those we capture is not really possible. In a few cases (KSM, etc.) it might work, but it also might not. The idea that someone captured on a battlefield has constitutional rights is completely foreign to military people, and they tend to interrogate for operational information (How many others were with you? What do they plan to do next? Are any of the others wounded?…that sort of thing). The idea that someone captured in such circumstances would immediately be afforded counsel and read rights is silly in the extreme.
No one has come up with a solution for this that’s workable, and no one (that I’ve heard, anyway) has formulated a policy for dealing with this problem that confronts all of the issues at the same time. No one I’m aware of has even noted this publicly. Neither the Bush administration nor the Obama people have formulated anything like a comprehensive policy. Bush made things up as he went along, and Obama’s big change from Bush is to close Guantanamo, as if the actual prison itself was the culprit. Prediction #1: if we close Guantanamo and move all the prisoners to Illinois, we’ll soon be hearing how that place is horrible, and Muslims (and soon those who complain about everything the U.S. Government does) will be denouncing it as “Gitmo North” or something to that effect.
As for the case against the Blackwater people, I agree with #6, in that the Government won. It’s not just the legal fees, though, the company’s reputation has been damaged, perhaps beyond repair, and they’re not allowed to do business in Iraq any more, in part because of this incident and the way we reported what happened, initially. The difficulty is that these guys are mercenaries, so our public perception is colored by that. No one really cares if the mercenaries get unfairly screwed, do they? It’s like a child molester getting cheated out of his inheritance by a Nigerian internet scam…it’s illegal, but everyone pretty much cheers anyway. I don’t think it’s fair at all (I don’t have a problem with mercenaries myself) but this is the public perception, to a large extent, and they’re not going to be able to counter it effectively, I think.
It is an acceptable tenet of the Law of Armed Conflict that those taken on the battlefield or actively engaged in hostile acts, to include those responsible for the planning and support of those acts, may be held for the duration of the hostilities. In some cases, such as those engaged in sabatoge (like blowing up US flagged aircraft in US airspace) may be executed without civil trial. I am still unhappy that there is such a concern for these folks as they voluntarily engaged in armed/violent actions against the United States and as far as I anm concerned, they can rot in a cell until the end of hostilities.
I’m interested in the Iraqi official who wanted BW prosecuted in the first place.
He needs to take up water sports. Then we could learn just how involved with the terrorists he was. It is NOT an accident that an ambush team was laying in wait along the escape route.
While you cannot introduce the Justice department official that led the charge on the BW case to watersports, you can go over his life with a fine tooth comb. If something is found that would indicate he was in cahoots with the terrorists, charge him with treason.
Concerning fruit of a poisonous tree, just because he is arrested and not immediately read Miranda does not mean what he utters is inadmissible in a court of law. Before or after Miranda, uttering statements should be found admissible. It’s when an agent of the government begins questioning/interviewing/interrogating the suspect that Miranda must first be read. The suspect could be “detained” or even “under arrest” without being read Miranda immediately. So long as the statements are coming freely from him, and not being elicited by an officer, detective, investigator, etc., they would likely be deemed admissible.