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Now Shovel Ready: the Blackwater Criminal Prosecution

Apologizing to the people of Iraq for the results of a criminal proceeding in a United States federal district court, with which many of them are unhappy and anxious for reinforcement of their views, may help foreign relations. It may be good politics. Yet the United States is not obliged to tailor its judicial proceedings to that end and our courts should not be obliged to do so; members of the executive branch should occasionally be reminded that the judicial branch is separate, distinct, and independent. The sort of statement made by the vice president -- unlikely to have read the trial court's lengthy opinion, or to have understood it if he had -- could reasonably be interpreted as marching orders from on high, to be obeyed by underlings regardless of the facts and the law. And, as noted here,

Following the December 31 dismissal, a meeting among defense attorneys and personnel of the Justice Department’s national security division had been scheduled. However, the meeting was canceled prior to VP Biden’s announcement that an appeal would be filed:

[The] meeting between defense attorneys and the national security division of the Justice Department to discuss whether an appeal was warranted was canceled before Biden’s Saturday announcement. [One of the defense attorneys] said the defense was told that the national security division “no longer had any meaningful input into the decision.”

The plan to appeal was later confirmed, and on January 29 the national security division (NSD) initiated the process by filing a notice of appeal.

Members of the Blackwater Raven 23 tactical support team had been charged in one indictment issued by one grand jury.  In an effort to fix numerous  problems with tainted materials presented to that grand jury, the materials were later presented, with "substantial" omissions of exculpatory materials, to another grand jury which issued a second indictment. The problems were numerous, but most involved statements given to investigators by the defendants shortly after the Nisur Square incident, under written promises of testimonial immunity and in the face of threats of firing unless they cooperated by giving statements. These circumstances set the stage for prosecutorial misconduct in using those statements for investigative purposes against the defendants and in presenting the information so obtained to first one and then the second grand jury in a politically charged context involving the relationship between the United States and Iraq. The case did not get to a jury in Judge Urbina's court because preliminary issues involving the lawfulness of the indictments on which the defendants were to be tried had to be resolved first. That involved analysis of the evidence presented earlier to the grand juries. Since Judge Urbina dismissed the indictments based on that evidence, the case did not go to trial.

As noted in this Wall Street Journal article, analyzing and quoting liberally from the trial judge's opinion,

Judge Urbina dismissed the charges because prosecutors misused sworn statements the guards were compelled to make to investigators after the shooting, under the threat of job loss. This was routine practice under military contracting rules, though the statements could not be used in criminal prosecutions. Promptly after the Nisour incident these statements were also leaked to the media, which ran with the narrative of modern-day Hessians gone berserk.

"In their zeal to bring charges against the defendants in this case," Judge Urbina ruled, prosecutors had violated Fifth Amendment protections against self-incrimination by using these compelled statements to formulate their case and ultimately obtain indictments against the guards. The judge calls it "the government's reckless violation of the defendants' constitutional rights."

Because of prior contact with the compelled statements, the Justice Department's entire criminal division had recused itself from the case, which was handed over to national-security prosecutors and later to Assistant U.S. Attorney for the District of Columbia Kenneth Kohl. The veteran Justice public-integrity lawyer Raymond Hulser was eventually assigned to lead a "taint team" to rebuild the case without using the off-limits statements, and he repeatedly warned the trial team that their evidence was "thoroughly tainted."

"By all accounts these prophylactic measures fell well short of expectations," Judge Urbina notes with some understatement. In "direct contravention of the clear directives" of Mr. Hulser, the statements were used to obtain a search warrant against Blackwater, figured into plea discussions, and exposed in testimony to the grand jury, forcing Justice to withdraw the case and present it to a new panel.

In the second round that featured redacted testimony from the first grand jury, prosecutors also excised what Judge Urbina calls "substantial exculpatory evidence." The judge goes on to say that Justice's "inconsistent, extraordinary explanations" for its conduct "smack of post hoc rationalization and are simply implausible," and ultimately "lacking in credibility."