The Blackwater Appeal: Politics Commandeer the Courtroom

On January 22, Vice President Joe Biden told the president of Iraq that the United States would appeal the dismissal of the case against the Blackwater guards. The VP also apologized personally for their misconduct:

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.

Although Biden is praised in song and story as a motormouth, this promise must have had some basis and must have been cleared with Holder's Justice Department, if not with President Obama.

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. A briefing schedule will soon be established by the Court of Appeals, specifying the dates by which the government must file its brief in support of its appeal and establishing dates for other pleadings.

That the NSD, rather than the Justice Department's criminal division, filed the notice of appeal was probably due at least in part to the fact that, for purposes of the trial, the criminal division had been replaced by the NSD on September 28, 2007. That seems odd, because up until September 28 the misconduct had principally been the doing of the State Department investigators who collected and used compelled testimony of the Blackwater guards improperly. Moreover, long after September 28, the NSD prosecutors persisted in the improper use of compelled testimony -- directly contrary to strongly worded advice from the criminal division's "taint committee," which had been established to prevent just that. Other prosecutorial misconduct -- including the exclusion of exculpatory evidence at a second grand jury proceeding in late November 2008 -- also continued. That all of this is well documented in Judge Urbina's Blackwater decision was due in part to reluctance on the part of the criminal division to pursue the appeal. Another possible reason is that the NSD will be on the firing line in the trials of KSM et al, and therefore may well have more incentive to push for a favorable result in the Blackwater appeal than anyone else -- including the criminal division, the strongly worded advice of which it ignored.

The NSD is described at the Department of Justice website as follows:

The mission of the national security division (NSD) of the Department of Justice is to carry out the Department’s highest priority: To combat terrorism and other threats to national security. The NSD, which consolidates the Department’s primary national security elements within a single Division, currently consists of the Office of Intelligence Policy and Review; the Counterterrorism and Counterespionage Sections, formerly part of the Criminal Division; and a new Law and Policy Office. This organizational structure ensures greater coordination and unity of purpose between prosecutors and law enforcement agencies, on the one hand, and intelligence attorneys and the Intelligence Community, on the other, thus strengthening the effectiveness of the Department’s national security efforts.

There is nothing in the mission statement suggesting any relevance to the Blackwater situation.