Missteps, errors and miscommunication doomed Blackwater case
Thursday, February 11, 2010
When its investigation into a deadly and politically sensitive Baghdad shooting involving U.S. security contractors ran into major trouble, the Justice Department quickly handed it over to Kenneth Kohl, a seasoned and well-respected prosecutor.
Kohl, after all, had successfully prosecuted Colombian narco-terrorists, overseen the investigation of the 2001 anthrax attacks and won scores of hard-fought homicide trials. He seemed to be the perfect prosecutor to lead a complex and thorny investigation into the controversial actions of U.S. private contractors in a faraway war zone.
So, how then, with all the forewarning of the case's pitfalls and Kohl's experience and dedication, does the Justice Department now find itself defending the prosecutor's conduct? How could such a high-profile case, one that generated international headlines and roiled U.S.-Iraq relations, implode so badly? On Dec. 31, a federal judge threw out the charges against the five Blackwater security guards.
The questions come as the Justice Department last month launched its appeal of a scathing opinion by the well-respected judge, who ruled that the conduct of Kohl and other prosecutors was so egregious that it "requires dismissal of the indictment against all the defendants." The guards had been accused of killing 14 Iraqi civilians and wounding 20 others in an eruption of gunfire and grenade explosions in a busy Baghdad square on a sunny afternoon in 2007.
The stakes are high. It was the most serious incident involving security contractors in Iraq or Afghanistan and raised profound questions about the oversight of private U.S. guards in war zones. Fallout from the incident was so intense that it forced Blackwater to rename itself; it now goes by Xe Services. In a sign of the case's continuing significance in U.S.-Iraq relations, Vice President Biden took the unusual step of announcing the appeal of the case's dismissal while on a trip to Baghdad.
Legal experts have said the Justice Department faces a difficult task in winning a reversal, pointing to what they consider a detailed and well-reasoned opinion by U.S. District Judge Ricardo M. Urbina, and could risk further embarrassment if another set of judges comes to similar conclusions. The Justice Department's reputation has already been marred by prosecutorial misconduct in the trial of then-Sen. Ted Stevens (R-Alaska) on corruption charges. A federal judge threw out Stevens's conviction, and a lawyer appointed by that judge is investigating Justice Department prosecutors over potential criminal contempt violations.
A review of Urbina's decision, recently unsealed court papers and interviews with dozens of prosecutors, investigators and defense lawyers paint a less-than-flattering picture. They reveal a passionate prosecutor who risked his life in Iraq to seek justice while pushing legal boundaries and an investigation plagued by missteps, miscommunication and bungling.
Even when Kohl's team took steps to protect the integrity of the investigation, the procedures proved inadequate to withstand three weeks of intense closed-door hearings.
Tough case to prosecute
Kohl declined to comment. But in an e-mailed statement, he wrote: "All of us who were involved in this case felt an obligation to the 34 victims who were killed or wounded at Nisoor Square to do everything we could, within the bounds of the law, to bring this case to trial in an American courtroom.
"We don't want federal prosecutors to flinch at taking on tough cases involving complex legal issues, and I worry that some of the reaction to the court's ruling will have that effect." He declined to elaborate.
Kohl, 50, grew up in the Chicago area and joined the Justice Department in 1985, straight out of the Northern Illinois University College of Law. He lives with his wife and two children in the D.C. suburbs.
The prosecutor quickly rose through the ranks of the U.S. attorney's office in the District. Several colleagues say Kohl never lost a homicide trial. They described him as an aggressive and zealous advocate for victims.