The Blackwater Ruling - Odoratus De Profundus
When water turns black it is inevitably accompanied by an overwhelmingly rank smell. The condition may be caused naturally by an overabundance of plankton or it can be man-made in the form of industrial sludge or seeping fecal sewage. In the case of the Blackwater decision, released with minimal media fanfare on new year's eve, the culprits are human, at least outwardly, and the reek is so bad it makes my eyes water. This stink-bomb has been portrayed so far as a case of incompetence in the earliest stages of the investigation that left the presiding judge no choice but to drop the charges because the constitutional rights of the accused killers had been violated. Accordingly, our cherished American system of jurisprudence demands this outcome, even though preliminary investigations on the scene found the guards guilty of unprovoked, unjustified, and indiscriminate violence causing the deaths of seventeen innocent Iraqi civilians, and even though one of the guards has already pled guilty.
The NY Times story, dated January 1, 2010, proclaims "Federal judge contends prosecutors violated rights of accused." In a 90-page opinion (hardly cut and dried if it takes a small novel to rationalize), Judge Ricardo M. Urbina wrote that the government's mishandling of the case "requires dismissal of the indictment against all the defendants...in a reckless violation of the defendants' constitutional rights, prosecutors, investigators, and government witnesses relied on statements that the guards had been compelled to make in debriefings by the State Department shortly after the shootings." My suspicions are not primarily aimed at Judge Urbina. I have no reason not to take him at his word. He was in fact ruling by the letter of the law. He has a track record of upholding defendants rights, including presiding over Habeas Corpus cases at Guantanimo, and he obviously understands the murkiness of the case based on the length of the opinion, although the timing of the decision raises eyebrows.
But it does seem a bit odd that the State Department investigators and lawyers were supposedly unaware of the laws that presumably they must know in order to have their jobs in the first place? I suppose we are to believe (us stubborn ones who insist on paying attention and refuse to be indifferent about these things, even on the holidays) that these "investigators" bumbled so badly as to have unwittingly allowed the agents' statements to have become nul and void. Basically, as government contractors, the guards were obligated to give an immediate report on what they had done, in essence they were compelled to make statements under threat of losing their jobs (losing their jobs?-- that would seem to be of secondary importance after you have just gunned down seventeen people in cold blood), but the Constitution prevents the government from requiring a defendant to testify against himself/herself. It is the equivalent of not reading them their rights. Honest mistake right? But here is the rub-- in a coup de grace worthy of John Le Carre the State Department willingly released the statements to prosecutors! Thus rendering said statements inadmissable under the fifth amendment. Something here just doesn't quite add up-- at the very least one must consider whether these lawyers knew full well what the laws were and that these books may have been cooked well in advance.
To further my query I point to this little tidbit from Judge Urbina's opinion, burried four columns deep on page A6 of the NY Times on January 2: "Sometimes the government demonstrates that there is no contamination of the information used to obtain an indictment by having it "canned" or preserved, in a memorandum completed and dated before the prosecutors are exposed to suspects' compulsory statements, but that was not done in this case, the judge said." I reckon they just forgot. Mucho conveniente!
While we are on the subject of interesting little reported Blackwater facts coming to light, ever so faintly, while practically no one is looking, how about this one-liner submerged in column three on page A12 of a NY Times story on the CIA from January 1: "It (the CIA) established a network of secret overseas jails where terrorist suspects were subjected to brutal interrogation techniques, and it set up an assassination program that at one point was outsourced to employees of the private security company, then known as Blackwater USA." Blackwater assassination teams? Hmmm? That begs the question: to what length will bureaucrats go to protect spies and hit men on the payroll and to keep what they know from the television viewing audience? These people in question, our foreign policy apparatus, are well versed in executing preemptive strikes, usually by employing a perfect understanding of our own laws and constitution, to protect themselves and their agents from public scrutiny.
Odoratus De Profundus!
And so, this horrible story provides a fitting end to a decade that will long be remembered for a shady decision to prosecute what turned out to be disastrous war. A war that featured the recurring US traits of military hubris and profound foreign policy miscalculation not seen in such a virulent form since the Vietnam debacle. Americans were led into the desert under the false pretense of rooting out weapons of mass destruction and liberating the Iraqi people from the tyrant Hussein. Once the WMD part of the story proved myth our leaders easily expanded the fall back position-- we were really in Iraq to create a democratic beacon of light that would shine outward over a region that had historically been a sea of dictatorial darkness and bathe it in American style constitutional illumination. It was an appropriately Zoroastrian metaphor. In reality, what we saw was the age old policy of American exceptionalism revisited. The open door policy upon which we had built the "American Century" was down but it was not out and so the pump was primed for a big comeback, and so Iraq was forced at gun point to become safe for democracy, and Texaco-- yes there was another kind of black water in our sights, the kind that runs cars and armies. Thursday's result reminds us once again that darkness reigns at the base of the lighthouse.
A final note:
I think it appropriate here to reprint two quotes from this weekend's stories that point out the huge gulf (no pun intended) between perceptions, American and Iraqi, that sadly after seven years show how little progress, if any, has been made in bringing our two peoples together:
"The ruling is a lesson in the rule of law...despite the worry that there were innocent people killed during this attack...of course people are not going to like it because they believe these individuals conducted some violence and should be punished for it...but the bottom line is, using the rule of law, the evidence was not there, or was collected illegally." -- General Raymond Odierno, American Commander in Iraq
" There has been a cover-up from the very start. What can we say? They killed people. They probably gave a bribe to get released. This is their own American court system. I ask you, if this had happened to Americans, what would be the result? But these were Iraqis. " -- Ali Khalaf, a traffic police officer who was on duty in Nisour Square at the time and aided some of the victims
He has a point.
Cites:
Charges Voided For Contractor In Iraq Killings. NY Times. January 1, 2010
CIA Takes On Exoanded Role On Front Lines. NY Times January 1, 2010
US Lawyers Long Knew About Legal Pitfalls In Case Against Blackwater Guards. NY Times January 2, 2010
Iraqis Angered at Dropping of Blackwater Charges. NY Times. January 2, 2010