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The War Profiteers - War Crimes,
Kidnappings & Torture |
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October 26th,
2009 - Blackwater Lawyers Seek Military Guard |
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Blackwater Lawyers Seek Military
Guard Defense team in Iraq shooting case wants to visit crime scene. By Mike Scarcella The National Law Journal October 26, 2009 Criminal defense lawyers and
their investigators routinely venture into rough neighborhoods to interview
witnesses and gather evidence. But there's probably little concern about
sniper attacks, mortar fire and roadside bombs. Those are the fears of a
group of private defense lawyers who want to travel to Iraq to conduct their
own investigation amid the prosecution of five Blackwater Worldwide security
guards, charged with voluntary manslaughter in the killing of 17 unarmed Iraqi
civilians in a shootout in 2007. The lawyers are demanding
the government provide a security detail. The Justice Department is fighting
the request, calling it "radical" and unnecessary. For the
government, the stakes are high going forward as more and more foreign-based
criminal allegations end up in federal district courts in the United States. In court papers filed
earlier this month in the U.S. District Court for the District of Columbia,
the Blackwater legal team filed a motion arguing the government should be
compelled to provide the same protection accorded the federal prosecutors and
civilian FBI agents who spent weeks in Iraq before the Blackwater guards were
indicted. "The experiences of the
prosecutors and the FBI in Iraq, and the substantial government resources
devoted to their security, illustrate an obvious truth: American lawyers and
investigators working in Baghdad face mortal danger," wrote Steptoe
& Johnson LLP partner Mark Hulkower. "They require professional
protection to assure their survival and to enable them to perform their
work." Justice lawyers fired back
last week, saying the defense attorneys should rely on any number of private
security contractors working in Iraq. Granting the request would mark an
"unprecedented and unwarranted" exercise of judicial authority,
according to Justice attorneys. Judge Ricardo Urbina has
said a chief concern for him is the safety of the lawyers. But several
defense lawyers who are following the Blackwater criminal litigation said
it's unlikely that Urbina will rule in favor of the defense team, which
includes David Schertler of Schertler & Onorato and Thomas Connolly of
Wiltshire & Grannis, both of Washington. "If they want armed
bodyguards, by golly, there's lot of folks who do that," said Puckett
& Faraj military lawyer Neal Puckett of Alexandria, Va., who has traveled
to Iraq twice and owns his own body armor and Kevlar helmet. He said he
doesn't see any basis in law or necessity for granting the defense request. Defense lawyers, he said, travel
at their own risk. The government's case
against the Blackwater guards stems from a shooting in Iraq in Baghdad's
Nisoor Square on Sept. 16, 2007. The indicted guards, contractors for the
State Department, were part of a convoy that stopped in a busy intersection.
Prosecutors allege the indicted Blackwater contractors were unprovoked when
they opened fire. The prosecution is the first
under the Military Extraterritorial Jurisdiction Act to be filed against
non-Defense Department private contractors. North Carolina-based Blackwater,
now called Xe Services LLC, is still under contract with the State
Department. The defense lawyers, however, said in court papers that the
company "has no ability of any kind" to provide security in Iraq.
The contract is set to expire in January. Since June, the defense
lawyers in the case have been talking with Justice attorneys about access to
witnesses and evidence in Iraq. On Sept. 2, the lawyers received a letter
from a U.S. embassy official in Iraq that said the government would not take
responsibility for providing security. Blackwater didn't return calls seeking
comment. At a Sept. 14 hearing in
federal district court in Washington, Hulkower made what a federal prosecutor
called an "emotional" pitch for security. "It's not as if we
are commercial vendors looking to make a sale in Iraq and, therefore, the
Department of State gives us the form of contractors and says 'be careful if
you go over, here's a list,' " Hulkower said, according to a transcript.
The two sides are part of the same process, he said, and if the government
gets a military escort "[why] can't we just have the same thing?" Assistant U.S. attorney
Jonathan Malis, responding to Hulkower's argument, said in the hearing that
the Blackwater case poses no circumstances any different from other violent
areas where lawyers travel. The defendants are willing
to reimburse or defray the costs of government-provided security. The lawyers
say the dispute does not concern cost but the government's
"unwillingness" to assist the defense with security measures. Urbina said in court last
month that his concern is not money since "[I] imagine the defendants
are prepared to pay something to assist the taxpayers in supporting this
protective effort." Urbina said his primary concern was one of safety.
"[I]f the defense has to pay for it, then the defense has to pay for it,
but under no circumstance will I feel comfortable if any representative of
the defense team or the government, for that matter, is detailed out to Iraq with
less than the maximum amount of protection appropriate for the
situation," Urbina said in court. Justice lawyers said in
court papers filed on Oct. 19 that, if Urbina grants the defense request, the
judge would eventually find himself presiding over technical security
disputes, such as whether a government convoy of three vehicles is sufficient
when the government investigators traveled in a convoy of four. "Even putting aside the
constitutional implications, it would be extraordinary and risky for the
court to accept the defendants' invitation effectively to involve itself in
the tactically employment of the U.S. military," Paul Ahern of the Justice
Department's Federal Programs Branch said in court papers. Justice lawyers question why
the defense lawyers even want a military escort in the first place. Private
security contractors have greater freedom to travel than the military and can
operate with "reduced visibility." One lawyer watching the case
said a ruling against the defense lawyers' request could work in their
benefit as an advocacy tool - a showing that the government is unable to
provide security. "If it's denied, they'll say there's no way for someone
to conduct an investigation in Iraq without hiring private security,"
said Miller & Chevalier partner George Clarke III, who has represented
Guantánamo Bay, Cuba, detainees. "The defense wants to show these guys
play a critical and important function to a wide variety of people in a
combat zone." External link: http://tinyurl.com/yzo4pj9 |