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The War Profiteers - War Crimes,
Kidnappings & Torture |
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February 11th,
2010 - Missteps, Errors and Miscommunication Doomed Blackwater Case |
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Missteps, Errors
and Miscommunication Doomed Blackwater Case By Del Quentin Wilber Washington Post 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. In more recent years, he was
assigned national security cases, including the years-long investigation into
the anthrax attacks. In 2007, Kohl won a conviction against a Colombian rebel
leader who took three Americans hostage. The man was sentenced to 60 years in
prison. Alex Barbeito, an FBI agent
who worked on that case, said Kohl was meticulous and brave. "He came
down to Bogota several times, despite death threats to U.S.
prosecutors," Barbeito said. "To me, he's exactly the type of
prosecutor an agent wants to handle complex international criminal
cases." Colleagues say Kohl was
fearless in his pursuit of the Blackwater guards, visiting Baghdad three
times. On one visit, while staying in a trailer in the Green Zone, the
compound was hit by rockets and mortar shells, forcing Kohl to dive under his
bunk for shelter. "And yet he still went
back," a fellow prosecutor wrote in an e-mail. "It would take a lot
for me to go back there" after that. The shooting that led to the
criminal charges occurred Sept. 16, 2007, when 19 Blackwater Worldwide
security guards were part of a heavily armed convoy code-named Raven 23. At
the time, Blackwater had a contract to provide security for State Department
officials in Iraq. Just after noon that day,
Raven 23 arrived in Nisoor Square, which is near the Green Zone, to support
other Blackwater teams in response to a bombing. Soon, one Raven 23 guard was
shooting at a white car. Five others fired machine guns and grenade
launchers. By the time the explosions stopped, at least 14 Iraqis were dead
and 20 were wounded, authorities have said. Within hours, State
Department investigators were questioning the Blackwater guards. Four of the
five guards later indicted in U.S. District Court in Washington - Paul
Slough, Nicholas Slatten, Donald Ball and Dustin Heard - told investigators
that they opened fire in the square in self-defense. The fifth, Evan Liberty,
did not say whether he fired a shot but said the others responded to an
attack by insurgents. Over the next few days, the
guards gave written statements, and some were re-interviewed by State
Department agents. Guards’ tainted accounts The shooting caused an
uproar. The Iraqi government insisted that its citizens had been slain in an
unprovoked attack. Meanwhile, the State Department and Blackwater said the
guards had been responding to an ambush. Caught in the middle was the
Justice Department. Ten days after the incident,
State Department officials gave federal prosecutors and FBI agents copies of
their initial reports, which included information from the guards'
statements. That caused an immediate
problem. The guards had given written and follow-up interviews. The
statements had been given under assurances that they would not be used in
court and under warnings that the guards could be fired if they didn't
cooperate. Because of the assurances,
prosecutors and FBI agents should never have been exposed to those accounts,
so those agents and lawyers were reassigned. The Justice Department then
turned the case over to Kohl. Kohl and another prosecutor,
Stephen Ponticello, examined the evidence and decided to treat the written
statements as if they were out of bounds, court records indicate. But Kohl did not think that
the initial oral interviews deserved the same protection. To help Kohl
navigate immunity questions, the Justice Department assigned Raymond Hulser,
an expert on such issues, to act as a "taint" attorney. His job
would be to screen material before it got into the hands of prosecutors and
agents and to provide legal advice. Within weeks, according to
court records, Hulser was warning prosecutors and investigators to avoid the
oral interviews because he thought a judge might rule that they were also
protected. In November, Hulser wrote an
e-mail detailing his concerns to a Justice Department supervisor, Michael
Mullaney, who forwarded the comments to Kohl. "Got it," Kohl
responded. "Thanks Mike." Hulser made a string of
similar warnings over the next few months. Kohl says he never received the
advice, and he denied having read the e-mail to which he had responded. By January and February
2008, Kohl and FBI agents were interviewing the State Department
investigators who had taken the guards' first oral statements - something
that Hulser thought should have been avoided. Kohl eventually obtained
reports of the oral statements and used those accounts in search warrants to
obtain drafts of the guards' written statements. Hulser was never told of the
search-warrant effort. A grand jury indicted the
five guards in December 2008 on manslaughter and weapons charges. A sixth
guard, Jeremy Ridgeway, pleaded guilty to manslaughter charges. By October, Urbina was
holding closed-door hearings to determine whether the guards' statements had
improperly influenced the investigation. Kohl testified at the
hearings, while other Justice Department lawyers defended the government's
case. They argued that the oral statements were fair game and that any taint
from the written accounts was harmless. The guards' attorneys, who
were paid by Blackwater, argued that prosecutors should have avoided the
statements and that the case was too damaged to continue. Urbina ruled in favor of the
guards, writing that it was "objectively reasonable" for the
contractors to believe that their first interviews were protected because
they had given such statements in past shootings. But he didn't stop there. The judge chastised
prosecutors for not heeding the advice of Hulser and other experts. He also
said that he did not believe Kohl's assertion that he had not received the
expert's advice until it was too late. The protected statements
infected the entire case, Urbina wrote, and prosecutors even exploited them
to decide whether to charge two of the guards. He was particularly perplexed
that Kohl had thought it proper to use the oral accounts in search warrants
for written statements, Urbina added. The judge also accused
prosecutors of not giving grand jurors evidence that was helpful to the
guards. He found that Kohl and other prosecutors did not take steps to shield
grand jurors from tainted testimony, particularly from three Blackwater
guards who read the defendants' written statements or news stories describing
them. More subtle actions also
irked the judge. Kohl, for example, went out
of his way to tell the grand jury that the five guards had given immunized
statements to investigators, the judge wrote. Urbina felt that Kohl was
playing dirty, "to color the grand jury's thinking," by alluding to
the guards' statements without further elaboration. "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," wrote Urbina, voicing astonishment that such a
"seasoned and accomplished" lawyer could make so many blunders. © 2010 The Washington Post
Company External link: http://www.washingtonpost.com/wp-dyn/content/article/2010/02/10/AR2010021004029.html |