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of appeal was probably due at least in part to the fact that, for purposes of the trial, the criminal division had been replaced by the NSD on September 28, 2007.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.

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. …

[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.


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