Accountability is important for all aspects of government and for the private companies that provide goods and services to government agencies. Wrongdoing at all levels must be investigated where laws may have been broken.
Just as it was necessary to determine if five elite Blackwater security guards broke the law while protecting the lives of US diplomats in Iraq, so it is necessary to determine if Justice Department lawyers violated the Constitution while prosecuting the men.
Federal Judge Ricardo M. Urbina not only threw out the federal government's case against the Blackwater five last week - he ripped the Justice Department in a blistering, 90-page opinion. (Download Blackwater_123109)
The judge's ruling reads like an indictment of the Justice Department lawyers - a damning accusation for which the prosecutors must be held accountable. Judge Urbina denounced lead prosecutor Kenneth Kohl's team as committing a "reckless violation of the defendants’ constitutional rights." (See excerpts, below.)
The Washington Post, which has been no friend of Blackwater by any means, said in a January 6 editorial that the judge's decision was "infuriating" but "correct." According to the Post editors, Judge Urbina "excoriated Justice Department prosecutors who 'knowingly endangered the viability of the prosecution' by flouting legal rules and constitutional provisions that made dismissal of the charges inevitable."
Knowingly flouted constitutional provisions? That's pretty tough talk. Sounds to me like a federal crime. The Post continued, "The Justice Department's Office of Professional Responsibility, which polices prosecutorial misconduct, should scrutinize those responsible."
That's a very good point of departure. But scrutiny of the Justice Department lawyers isn't enough. They must be held accountable. They must be publicly identified, publicly made to account for their un-constitutional misconduct, and then be administratively fired from the government, disbarred from the legal profession, and be subjected to any applicable civil and criminal penalties.
A terrible tragedy took place in greater Baghdad's Nisoor Square in September 2007, in which a firefight resulted in many innocent Iraqis being killed. The government was right to investigate and seek justice. But it was absolutely wrong to trample the Constitution and deny the guards their rights. Here's how the Washington Post described the miscarriage of justice:
"The Blackwater contractors were summoned by State Department interrogators shortly after the incident and told they could lose their jobs if they did not cooperate. Because the government was essentially forcing the contractors to give up their constitutional right against self-incrimination, it guaranteed that any information provided would not be used in a criminal investigation."
In fact, as Judge Urbina determined, the information was used anyway - violating the rights of the accused. As the Post put it:
"Rather than remain secret, the Blackwater statements, which included details about which weapons were used and who fired them, were soon widely disseminated. They were shared with the FBI and the Justice Department's Criminal Division; entire statements were leaked to the press and posted on the Internet. . . .
"Prosecutors also failed aggressively to press witnesses on whether their recollections were colored by reading the Blackwater accounts. The Justice Department argued repeatedly that it did not rely on the Blackwater statements to build its case. Judge Urbina painfully and precisely debunked these assertions. the judge also rightly rebuked the Justice team for withholding from a grand jury exculpatory information.
"The murder of innocents should never go unpunished. Justice Department prosecutors were right to investigate" a possible '"criminal event.' They were right to try to build a case despite the enormous hurdles introduced by the immunized statements. But they went terribly wrong when they disregarded the rule of law and focused only on achieving a desired result."
I hope that the five Blackwater men - all military veterans who put their lives on the line daily to protect American diplomats in one of the world's most hostile environments - turn the tables on the people who unethically prosecuted and illegally persecuted them in the name of "justice."
Blackwater men Donald Ball, Dustin Heard, Evan Liberty, Paul Slough and Nicholas Slatten had their day in court and the federal judge threw out the charges. As much as the press and politicians might want to find them guilty, they are innocent in the eyes of the law.
Now it's time to prosecute the prosecutors. Let's start with Assistant US Attorneys Kenneth Kohl and Jonathan Malis, Justice Department trial attorney Stephen Ponticello, and anybody else whom Judge Urbina said willfully violated the Constitution and denied the five accused military veterans their constitutional rights. Just like the Blackwater men and everyone else, reckless prosecutors must be held accountable.
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- "The government attempts to characterize [lead prosecutor Kenneth] Kohl’s failure to heed [a Justice Department advisor's cautionary] directives as a mere 'miscommunication.' Yet to accept this characterization, the court would have to accept the following: that Kohl, a seasoned and accomplished prosecutor, failed" a litany of implausible procedures. (p. 82)
- "These inconsistent, extraordinary explanations smack of post hoc rationalization and are simply implausible. The only conclusion the court can draw from this evidence is that Kohl and the rest of the trial team purposefully flouted the advice of the taint team when obtaining the substance of the defendants’ compelled statements, and in so doing, knowingly endangered the viability of the prosecution." (pp. 82-83)
- "This reckless behavior was in keeping in with the way the prosecution conducted itself throughout the grand jury process, as it withheld the testimony of numerous percipient witnesses who had provided substantial exculpatory evidence to the first grand jury, presented the second grand jury with distorted and self-serving 'summaries' of the accounts of other witnesses and implied to the second grand jury that the defendants had given inculpatory statements to State Department investigators which the government could not disclose to the grand jury because they were given 'in exchange for immunity.'" (p. 83, footnote 63)
- "The government argues that the trial team could not, as a matter of law, have used the defendants’ compelled statements because the statements only contained exculpatory information. . . . Yet, as the court has already observed, in each of the authorities on which the government relies to support this assertion, the determination that there was no Kastigar violation [of the Fifth Amendment to the Bill of Rights] resulted from the fact that the statement was not useful to the prosecution under the circumstances of that case. . . . In this case, by contrast, it is abundantly clear that the defendants’ compelled statements did have a value to the prosecution." (p. 83)
- "In the face of the unrefuted evidence that the trial team risked the entire prosecution in aggressively seeking out the defendants’ compelled statements, which provided a wealth of valuable information, the government asks this court to credit the conclusory assertions of Kohl and the rest of the trial team that they made no use of these statements to further the prosecution. . . . The government asks too much." (p. 84)
- "It simply defies common sense that the prosecution would go to such incredible lengths to obtain the defendants’ compelled statements, flouting the advice of the taint team and taking actions that even Kohl acknowledged came 'close to the line,' and then make no use whatsoever of the fruits of their efforts." (pp. 84-85)
- "These facts do not describe a case of fleeting exposure late in the game that may have tangentially affected the trial team’s thought processes. . . . Rather, they reveal that the trial team went to great lengths and knowingly took great risks, at the early stages of the prosecution, to obtain statements that provided a wealth of information valuable to the prosecution. Given the prosecution’s early, ongoing and intentional immersion in the defendants’ compelled statements, the government bore the burden of demonstrating that it made no significant nonevidentiary use of the defendants’ statements." (p. 85)
- "Indeed, Kohl testified that until his April 2008 meeting with [a special Justice Department advisor who advised against tainting the prosecution from illegal, compelled evidence], he believed that the September 16 interviews [compelled of the defendants] were 'fair game.' . . . But if Kohl actually believed that the September 16 statements were fair game, it seems highly unlikely that the trial team would not have used those statements in guiding their investigation and prosecution of the case." (p. 85, footnote 64). Here, it appears that Judge Urbina is calling Assistant US Attorney Kenneth Kohl a liar.
- "The government’s utter failure to meet this burden [to protect the defendants' Fifth Amendment rights by building its case free of taint from the compelled statements of the accused] requires dismissal of the indictment against all the defendants." (p. 85)
- "The Government's Myriad . . . Violations Cannot Be Excused as Harmless Error" (p. 88)
- ". . . far from being unimportant and insubstantial, the defendants’ compelled statements pervaded nearly every aspect of the government’s investigation and prosecution, and the government’s use of those statements appears to have played a critical role in the indictment against each of the defendants. Accordingly, the court declines to excuse the government’s reckless violation of the defendants’ constitutional rights as harmless error." (p. 89)
- ". . . the indictment is fatally tainted. . . ." (p. 89, footnote 66)
- "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." (p. 90)