Now Shovel Ready: the Blackwater Criminal Prosecution

On April 22, a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an order unanimously vacating and remanding the December 31, 2009 decision of Judge Ricardo Urbina in the Blackwater Raven 23 case for further consideration in accordance with its instructions.

As noted in Judge Urbina's ninety-page decision, the case had involved members of a Blackwater tactical support team referred to as Raven 23. Their function had been "to provide back-up fire support for other Blackwater personal security details operating in Baghdad."

The Raven 23 convoy consisted of four vehicles. Defendant Ball functioned as the rear turret gunner on the lead vehicle. Defendants Liberty, Slough and Slatten were positioned in the third vehicle as the driver, turret gunner and designated defensive marksman (or sniper) respectively. Defendant Heard was the rear turret gunner in the fourth vehicle. Jeremy Ridgeway, who pleaded guilty to charges stemming from the incident and has been cooperating with the government, functioned as the lead turret gunner in the fourth vehicle. The defendants were armed with machine guns, grenade launchers, rifles and pistols.

Shortly before noon on September 16, 2007, Raven 23 received a message that a vehicleborne improvised explosive device ("VBIED") had detonated in the vicinity of a compound in which U.S. officials were meeting with Iraqi officials. The Raven 23 convoy subsequently took up positions in Nisur Square, a traffic circle located just outside the International Zone in downtown Baghdad, to secure an evacuation route for the American officials and the Blackwater team providing their security. Soon after the Raven 23 vehicles entered the traffic circle, a shooting incident erupted, during which the defendants allegedly shot and killed fourteen persons and wounded twenty others. The government contends that the dead and wounded were unarmed civilians who were the victims of unprovoked violence by the defendants. The defendants maintain that they came under attack by insurgents and that their actions constituted a legitimate response to a mortal threat.

The paroxysm of violence that occurred on September 16, 2007 in Nisur Square triggered immediate responses that would have far-reaching consequences [internal citations omitted].

In a decision dismissing the indictment on which the defendants were to be tried, the trial judge set forth in substantial detail a surprisingly high level of repeated prosecutorial misconduct. I thought (and still think) that his was a well reasoned and fair decision and was surprised that the appellate court overturned it unanimously. Most of the apparently juicy bits of the April 22nd Court of Appeals decision were redacted. To the (unknowable) extent that the appellate court's decision is based upon those redacted bits, it is incomprehensible.

The proceeding had a lot of baggage from the beginning, much of it unethical and some of it just plain stupid. That baggage -- I reviewed some of it here and here -- grew heavier with repeated incidents of prosecutorial misconduct. The sloppy work done during the post-incident investigation tainted the evidence found not only then but during subsequent investigations. The baggage accretion process continued even after Judge Urbina's decision had been issued on the last day of 2009. On January 22, 2010, Vice President Biden told the president of Iraq that the United States would appeal Judge Urbina's dismissal of the case. He also apologized publicly for the "misconduct" of the defendants and also, it seems, for that of the trial judge:

With Iraqi President Jalal Talabani at his side at a Baghdad news conference, Biden expressed “personal regret” for the violence in a Baghdad traffic circle where Blackwater guards were accused of opening fire on innocent civilians.

“The United States is determined, determined to hold accountable anyone who commits crimes against the Iraqi people,” Biden said.

“While we fully respect the independence and integrity of the U.S. judicial system, we were disappointed by the judge’s decision to dismiss the indictment, which was based on the way in which some evidence had been acquired,” Biden said.