Bourbon, good reporting on this case ...
especially your last links to the original court pleadings. IIRC, Blackwater's responsive reply is due 17 Aug.
Let's all keep in mind that this case is a private civil case, where the standard of "rigour" (we might say) can be much lower than that in a Federal criminal prosecution. While one side of this case has Blackwater personnel emerging out from under their rocks, that cuts both ways. That is, the affidavits are from Blackwater personnel - are they also emerging out from under their rocks ?
The flavor of this case comes to the fore in the first paragraph of the Plaintiff's Opposition:
Quote:
Plaintiffs respectfully request that this Court deny Defendants’ Motions To Dismiss and permit Plaintiffs’ claims to proceed to discovery and trial. Defendants mislead the Court by portraying Plaintiffs as challenging the State Department’s policies. As explained below, nothing could be further from the truth. Plaintiffs are challenging Mr. Prince’s callous scheme to kill, repeatedly, innocent Iraqis. This scheme was implemented without the knowledge or consent of the State Department. This scheme was motivated by Mr. Prince’s greed and his racist Christian supremacist views. Mr. Prince and his Blackwater companies deceived the State Department, and destroyed evidence that might have led to the detection of the scheme. Mr. Prince’s actions, and those of his alter ego companies, should not evade judicial review. No statutory or decisional law supports Mr. Prince’s claim that he is immune from the rule of law.
It is one thing to allege it; it is quite another thing to prove it.
Just something to keep in mind.
PS: See pp.92-124 of the Opposition for a good example of how to prove foreign law (in this case, Iraqi law). In the usual case involving domestic laws (Federal or state), the judge simply takes judicial notice of the applicable laws. Where foreign law is concerned, it technically has to be proved by a foreign law expert (sometimes the parties simply agree to handle it like domestic laws). So, Blackwater could come back with its own Iraqi law experts; and so on. The court could, if it wished, appoint its own Iraqi law experts. Just a point of in-courtroom legal trivia, for true devotees. :)
I don't think people quite get it...
Blackwater IS the Templars. The Vatican is secretly in charge; they formed Blackwater and sent them to Iraq to get rid of Muslims and recover a mysterious relic with infinite power. The CIA is involved,and oil companies, and aliens, and Elvis. Blind affidavit #1 was filed by a gorgeous chick, and when the Templars come to silence her she will be rescued by the guy who filed blind affidavit #2, a manly man with perfect hair and lots of liposuction, who has a gun that shoots 437 rounds without reloading and knows kung-fu and ninjutsu. In 120 minutes they will save the day, recover the relic, kill the sinister corporate stooge at the core of the conspiracy, discover cold fusion, save the whales and the ozone layer, and we will all live happily ever after.
If you don't believe me, wait for the trailer... coming soon to a cinema near you!
Concur with Elvis/UFO/oil company angle...
...but can't help but notice the repeated efforts in the linked piece to depict State as another victim of Dr Evil's diabolical scheme.
Credits to Polarbear ....
for this link to an interesting procedural development in this case, dealing with the government's obligation to provide security for defense lawyers to investigate the case, interview witnesses, etc., in Iraq.
Before you die from laughing, read the article, Blackwater defense team seeks security (JMM emphasis added):
Quote:
By JOSH GERSTEIN | 10/21/09 5:11 AM EDT
Lawyers for five former Blackwater contractors facing manslaughter charges over an alleged massacre in Iraq are demanding that the U.S. government arrange armed security for the defense team as it heads into the dangerous streets of Baghdad to gather evidence and interview witnesses.
The Obama administration could soon face a stark choice: Order U.S. commanders in Iraq to give the defense attorneys a military escort for their trip, or throw into jeopardy the prosecution of one of the worst alleged atrocities of the Iraq war.
The defense lawyers complain that U.S. prosecutors and FBI agents had military help to gather evidence to bring the charges and that the government initially blew off the defense’s request for protection by sending over a list of security contractors derived in large part from Internet searches. ....
....
In a response filed Monday, prosecutors urged [Judge] Urbina to reject the defense request. “The defendants ask this Court to assume a role that would violate the separation of powers; they invite this Court to take the extraordinary step of ordering the Executive to expend its resources (including those of the armed forces) [and] to reorient its overseas missions and priorities,” the Justice Department said.
The Justice Department predicted further disputes if the defense team and military personnel on the ground disagreed about the feasibility of visiting certain places. The government’s response did not detail what security provisions were given to prosecutors and the FBI when they investigated the case. ....
This case does raise a serious issue in criminal prosecutions, whether against AQ or Taliban detainees or against US military or civilians, for offenses requiring formal testimony and evidence from foreign nationals or sources. That has not been an issue in the Gitmo habeas cases because the judges have been accepting statements, declarations and other written summaries from both sides. Those are technically hearsay.
In Federal court criminal prosecutions, the more formal hearsay rules in the Federal Rules of Evidence apply; and in addition, the defense has a right to interview the witnesses listed by the government.
I won't predict what Judge Urbina will do. I have a data point of one - a case where I was court-appointed defense counsel and the prosecution relied on an expert witness at the preliminary hearing to testify on several technical issues. Before trial, I moved for appointment of an expert witness (named his qualifications and costs, etc.). The judge called us into chambers to decide the motion privately. Told me I had a good point; but that my expert would blow his budget for the case. So, he held that no expert testimony from either side would be allowed on the technical issues; saying: I'm probably legally wrong, but what I'm doing is fair. I won the jury trial.
Of course, a similar ruling by Judge Urbina would exclude all of the evidence from Iraq - which would gut the government's case. We shall see.
Preliminary opinion in Blackwater-Prince
Bourbon reported the pleadings in this case in opposition to the defense motion for summary judgment.
That motion was denied as reported by this article in the Nation:
Quote:
Judge Refuses to Dismiss War Crimes Case Against Blackwater
By Jeremy Scahill
October 22, 2009
On Wednesday, a federal judge rejected a series of arguments by lawyers for the mercenary firm formerly known as Blackwater seeking to dismiss five high-stakes war crimes cases brought by Iraqi victims against both the company and its owner, Erik Prince. At the same time, Judge T.S. Ellis III sent the Iraqis' lawyers back to the legal drawing board to amend and refile their cases, saying that the Iraqi plaintiffs need to provide more specific details on the alleged crimes before a final decision can be made on whether or not the lawsuits will proceed. .... (more in article).
The opinion by Judge T.S. Ellis III is here (56 pp.).
It is well to keep in mind that the standards required to decide this type of motion are that all allegations made by the plaintiff are held to be true (even if the defendant makes contrary allegations), and the judge does not decide questions of fact between the contrary positions. In short, this kind of motion is suited for a case where the facts are conceded by both parties; and one of the parties is entitled to judgment as a matter of law.
Nonetheless, viewing the present allegations most favorably to the plaintiffs, the judge found that the plaintiffs had not stated valid Federal law claims; but allowed them to re-plead those claims to the extent it would not be futile.
As to the non-Federal law claims (based on Iraqi law), the judge stayed his hand until the plaintiffs re-pleaded their claims.
So, in effect, this is a decision non-decision.
US judge dismisses charges in Blackwater Iraq killings
The BBC report:
Quote:
A US federal judge has dismissed all charges against five guards from US security firm Blackwater over the killing of 17 Iraqis in 2007.
The five, contracted to defend US diplomatic personnel, were accused of opening fire on a crowd in Baghdad. District Judge Ricardo Urbina said the US justice department had used evidence prosecutors were not supposed to have.
Link:http://news.bbc.co.uk/2/hi/americas/8436780.stm
Hat tips to David and Polarbear1605,
the latter for dropping into my mailbox and gnawing my ankle. Here are two articles, Judge Drops Charges From Blackwater Deaths in Iraq (NYT) and Judge Dismisses Blackwater Case (Military.com).
Quote:
from NYT
By CHARLIE SAVAGE
Published: December 31, 2009
WASHINGTON — In a significant blow to the Justice Department, a federal judge on Thursday threw out the indictment of five former Blackwater security guards over a shooting in Baghdad in 2007 that left 17 Iraqis dead and about 20 wounded.
The judge cited misuse of statements made by the guards in his decision, which brought to a sudden halt one of the highest-profile prosecutions to arise from the Iraq war. The shooting at Nisour Square frayed relations between the Iraqi government and the Bush administration and put a spotlight on the United States’ growing reliance on private security contractors in war zones.
.....
In a “reckless violation of the defendants’ constitutional rights,” the judge wrote, investigators, prosecutors and government witnesses had inappropriately relied on statements that the guards had been compelled to make in debriefings by the State Department shortly after the shootings. The State Department had hired the guards to protect its officials.
....
The guards had been told by State Department investigators that they could be fired if they did not talk about the case, but that whatever they said would not be used against them in any criminal proceeding.
Nevertheless, Judge Urbina found that “in their zeal to bring charges,” investigators and prosecutors had extensively used those statements, disregarding “the warning of experienced, senior prosecutors” that “the course of action threatened the viability of prosecution.”
“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,” Judge Urbina wrote.
The judge also criticized prosecutors for withholding “substantial exculpatory evidence” from the grand jury that indicted the defendants, as well as for presenting “distorted versions” of witnesses’ testimony and improperly telling the grand jury that some incriminating statements had been made by the defendants but were being withheld. ......
and
Quote:
from M.c
January 01, 2010
Associated Press
A federal judge cited repeated government missteps in dismissing all charges against five Blackwater Worldwide security guards accused of killing unarmed Iraqi civilians in a case that inflamed anti-American sentiment abroad.
U.S. District Judge Ricardo Urbina dismissed the case against the guards accused of the shooting in a crowded Baghdad intersection in 2007.
The shooting in busy Nisoor Square left 17 Iraqis dead. The Iraqi government wanted the guards to face trial in Iraq and officials there said they would closely watch how the U.S. judicial system handled the case.
Urbina said the prosecutors ignored the advice of senior Justice Department officials and built their case on sworn statements that had been given under a promise of immunity. Urbina said that violated the guards' constitutional rights. He dismissed the government's explanations as "contradictory, unbelievable and lacking in credibility."
....
Urbina's ruling does not resolve whether the shooting was proper. Rather, the 90-page opinion underscores some of the conflicting evidence in the case. Some Blackwater guards told prosecutors they were concerned about the shooting and offered to cooperate. Others said the convoy had been attacked. By the time the FBI began investigating, Nisoor Square had been picked clean of bullets that might have proven whether there had been a firefight or a massacre. ....
Judge Urbina's 90-page opinion was written after he held a 3-weeks long merits hearing on the USG's use of the statements. His bottom line on the relevant law and facts (pp. 1-3 of pdf):
Quote:
The defendants have been charged with voluntary manslaughter and firearms violations arising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contend that in the course of this prosecution, the government violated their constitutional rights by utilizing statements they made to Department of State investigators, which were compelled under
a threat of job loss. The government has acknowledged that many of these statements qualify as compelled statements under Garrity v. New Jersey, 385 U.S. 493 (1967), which held that the Fifth Amendment privilege against self-incrimination bars the government from using statements compelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendment automatically confers use and derivative use immunity on statements compelled under Garrity; this means that in seeking an indictment from a grand jury or a conviction at trial, the government is prohibited from using such compelled statements or any evidence obtained as a result of those statements.
The government has also acknowledged that its investigators, prosecutors and key witnesses were exposed to (and, indeed, aggressively sought out) many of the statements given by the defendants to State Department investigators. Under the binding precedent of the Supreme Court in Kastigar v. United States, 406 U.S. 441 (1971) and this Circuit in United States v. North, 910 F.2d 843 (D.C. Cir. 1990), the burden fell to the government to prove that it made no use whatsoever of these immunized statements or that any such use was harmless beyond any reasonable doubt.
Beginning on October 14, 2009, this court convened a Kastigar hearing to explore whether the government had made any use of compelled statements during its prosecution of the defendants. During this hearing, which spanned three weeks, the parties presented testimony from twenty-five witnesses, including the government’s entire prosecution team, the lead FBI agents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.
From this extensive presentation of evidence and argument, the following conclusions ineluctably emerge. 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.[2] 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.
In short, the 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.
[2] In fact, the government has conceded that key testimony used to indict defendant Nicholas Slatten resulted from the exposure of grand jury witnesses to his compelled statements, and has moved for leave to dismiss the indictment against that defendant. See generally Govt’s Mot. for Leave to Dismiss Indictment Without Prejudice Against Def. Slatten.
I believe it is important to note that this is not a case where a clearly inculpatory confession is flipped and a clearly guilty on the facts defendant is set free. A great deal of conflicting evidence existed in this case; and as the judge noted, the USG suppressed exculpatory evidence in favor of the defendants (p. 83, n.63):
Quote:
63 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.” See supra Part II.A.9.
The defendants' DSS statements were mainly exculpatory. The USG used many of the facts in the statements (who, when and where weapons were fired - which the defendants claimed were in self-defense) to "build" its case. Which leads one to question what sort of contrived case the USG would have attempted to present at trail.
End of case - see other thread
The end of this case is reported here, Hat tips to David and Polarbear1605.
Some controversy will still exist as to whether the Rule of Law (a domestic US criminal prosecution) should have been employed in this case. Whether that be so or not, the Rule of Law (here the basic constitutional right of a US citizen not to be convicted by use of statements - here largely exculpatory - which were given immunity) was affirmed and set the defendants free.
Regards to all who contributed to this thread
Mike
