Monday, January 4, 2010

What drove prosecutorial zeal in the Nisour Square Case?

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United States District Judge Ricardo Urbina in dismissing the indictment of Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten [USA v. Paul A. Slough et al. | Criminal Action No.: 08-0360 (RMU)] (security guards employed by Blackwater Worldwide/Xe to provide security services to U.S. government employees operating in Iraq) -- on the Nisour Square Baghdad incident writes:

"Before the beginning of jury deliberations, a judge instructs the jury that it must perform its duty to deliberate “without prejudice, fear, sympathy or favoritism.” A judge has a concomitant obligation. When a judge, upon close examination of the procedures that bring a criminal matter before the court, concludes that the process aimed at bringing the accused to trial has compromised the constitutional rights of the accused, it behooves the court to grant relief in the fashion prescribed by law. Such is the case here."

Perhaps cognizant of the possible impact of this ruling beyond our borders, the judge prefaced his memorandum opinion with this:  

[T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution  shoulder the entire load.

In its decision the Court did not minced words: “[T]he 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.”

The Court also faulted the prosecutors’ excessive fervor and disregard of warning that lead to the collapse of the prosecution's case:





"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 Garrity and Kastigar issues, that this 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 Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury. The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility."

The question then becomes –what drove prosecutorial zeal in this case? The Nisour Square Baghdad incident occurred on September 16, 2007.  On December 2008, the Justice Department announced they were charging five of the Blackwater employees, and ordered them to surrender themselves to the FBI.

Here are a few quotes from that 2008 DOJ announcement:

Patrick Rowan, Assistant Attorney General for National Security: “Today’s indictment and guilty plea demonstrate that those who engage in unprovoked and illegal attacks on civilians, whether during times of conflict or times of peace, will be held accountable.” J. Patrick Rowan is currently a partner at McGuireWoods LLP.

Jeff Taylor, U.S. Attorney for the District of Columbia: “We honor the brave service of the many U.S. contractors who are employed to support the mission of our Armed Forces in extremely difficult circumstances.  Today, we honor that service by holding accountable the very few individuals who abused that employment by committing some very serious crimes against dozens of innocent civilians.” (Taylor had resigned from public office on May 29, 2009).

Joseph Persichini, Jr., Assistant Director in Charge, FBI Washington Field Office: “Today’s indictments illustrate the FBI’s expanded responsibilities and its dedication to respond to any crime scene; be it in the United States or on foreign soil. The FBI will continue to work with its law enforcement partners in this country and abroad to ensure that the nation’s federal laws are enforced.” (Persichini retired on December 25, 2009 according to this WaPo report).  

According to the indictment, the defendants were all employed by the Armed Forces outside the United States -- that is, the defendants were employed as independent contractors and employees of Blackwater Worldwide, a contractor of the Department of State, to provide personal security services related to supporting the mission of the Department of Defense in the Republic of Iraq, within the meaning of MEJA.

Admittedly, I'm not a lawyer, but I still think that was a convoluted interpretation of the MEJA. Can you read the above paragraph and actually make sense of that without drooling in confusion? Because they were contractors for DOS, they were supporting the mission of DOD?! Agh! My head hurts!  

The 2008 DOJ statement also identified who handled the prosecution of this case: Assistant U.S. Attorneys Kenneth C. Kohl and Jonathan M. Malis from the U.S. Attorney’s Office for the District of Columbia, as well as Barry Jonas, Trial Attorney from the Justice Department’s National Security Division.

What else happened between the incident and the filing of complaint by DOJ in 2008? Why did the government’s trial team “repeatedly disregarded the warnings of experienced senior prosecutors” on the Garrity and Kastigar issues?





1 comment:

Matt B said...

"What else happened between the incident and the filing of complaint by DOJ in 2008? Why did the government’s trial team 'repeatedly disregarded the warnings of experienced senior prosecutors' on the Garrity and Kastigar issues?"

I see at least possibilities.

One, the investigation was legitimately (but not maliciously) ****ed-up, but in the wake of Obama's election prosecutors who wanted to curry favor with the new administration decided to go forward anyway. This seems somewhat unlikely, since the senior guy in your list (Patrick Rowan) left government service in May of '09 to go work for McGuire Woods.

Two, the investigation was legitimately (not maliciously) ****ed up, and in the wake of Obama's election some outgoing members of the Bush administration decided to drop a turd that would land on Obama's desk -- i.e., initiate a prosecution that was almost certain to fail, but would fail on Obama's watch.

Three, the prosecution was malicious ****ed up in order to ensure that the guards couldn't actually be convicted if they were eventually prosecuted (say, by a future administration more hostile to Blackwater). This seems somewhat unlikely. For one thing, if there's evidence that these guys lied in their initial statements, they can still be prosecuted for those lies.

The second possibility seems most plausible to me. But I may have missed some.