Wednesday, January 6, 2010;
A JUDGE'S DECISION to throw out the indictment against five Blackwater contractors accused of murdering Iraqi civilians is infuriating. It is also correct.
In a detailed, 90-page opinion, Judge Ricardo M. Urbina of the U.S. District Court for the District of Columbia 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. The Justice Department's Office of Professional Responsibility, which polices prosecutorial misconduct, should scrutinize those responsible.
Unless the Justice Department refiles the case -- a feat made exceedingly difficult by the judge's decision -- profound questions will remain about what happened that September day in 2007 when 17 people were shot dead and some 20 others injured after a Blackwater convoy drove into the crowded Nisoor Square in Baghdad and opened fire.
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. This prohibition is broad and strict and bars government agents from using such statements to form a theory of a case or to garner leads. It also bars them from relying on witnesses whose testimony may have been shaped or influenced by such information.
Rather than remain secret, the Blackwater statements, which included details about which weapons were fired 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.
To cure any possible taint, the Justice Department removed from the prosecution team anyone who had knowledge of the statements, assigned a fresh legal team and installed a senior Justice lawyer to guard against misuse of the Blackwater testimony. Members of the new team almost immediately ignored warnings from the senior Justice adviser, and some went so far as to obtain copies of the Blackwater statements.
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 an incident described by U.S. soldiers who inspected the scene as 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.