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Bengh– Blackwater!

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You should definitely read the James Risen story describing how the head of Blackwater’s operations in Iraq threatened to kill an investigator into the company’s practices in the period before the Nisour Square. It definitely confirms every concern that has been raised about mercenaries generally and Blackwater specifically.

But I want to look at the frame Risen gave the story, which I suspect few will read closely.

His memo and other newly disclosed State Department documents make clear that the department was alerted to serious problems involving Blackwater and its government overseers before the Nisour Square shooting, which outraged Iraqis and deepened resentment over the United States’ presence in the country.

[snip]

Condoleezza Rice, then the secretary of state, named a special panel to examine the Nisour Square episode and recommend reforms, but the panel never interviewed Mr. Richter or Mr. Thomas.

Patrick Kennedy, the State Department official who led the special panel, told reporters on Oct. 23, 2007, that the panel had not found any communications from the embassy in Baghdad before the Nisour Square shooting that raised concerns about contractor conduct.

“We interviewed a large number of individuals,” Mr. Kennedy said. “We did not find any, I think, significant pattern of incidents that had not — that the embassy had suppressed in any way.”

The reason this is coming out — aside from the fact the government is trying to try the Nisour Square killers again — is to show that contrary to what Patrick Kennedy said after having done a review of security practices in 2007, there had been a pattern of incidents, and they had been suppressed by the Embassy.

Now consider how that reflects on the GOP’s second favorite scandal, Benghazi. Not only was Kennedy the key judge about the events leading up to that event (which is normal — he’s been a key player in State for a very long time; I’m beginning to believe he’s State’s institutional defender in the same way David Margolis was at DOJ), but the question of security oversight is important there: Blue Mountain Group appears to have done its job inadequately (and there are some sketchy things about its contract and contractors).

Benghazi is actually not a bigger scandal than that State suppressed knowledge of Blackwater’s problems. But there does seem to be continuity.

DC Circuit Reinstates Blackwater Nisour Shooting Prosecution

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On December 31, 2009 DC District Judge Ricardo Urbina dismissed the indictment against five Blackwater defendants involved in what is commonly referred to as the Nisour Square shootings occurring on September 16, 2007. Urbina’s decision was 90 pages in length and was further supported by a three week long Kastigar hearing in his court October of 2009. A Kastigar hearing is an evidentiary inquiry based upon Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

Today, in a surprising unanimous decision, the DC Circuit Court of Appeals overturned Urbina, reinstated the case against four of the five original defendants (the prosecution had voluntarily dismissed Defendant Slatten previously) and remanded the case back to District Court for further proceedings. Here is how Reuters described the ruling:

The five guards were charged with 14 counts of manslaughter, 20 counts of attempt to commit manslaughter and one weapons violation count over a Baghdad shooting that outraged Iraqis and strained ties between the two countries.

The shooting occurred as the private security firm’s guards escorted a heavily armed four-truck convoy of U.S. diplomats through the Iraqi capital on September 16, 2007. The guards, U.S. military veterans, were responding to a car bombing when gunfire erupted at a crowded intersection.

U.S. District Judge Ricardo Urbina ruled in December 2009 that prosecutors violated the defendants’ constitutional rights and the case was tainted by use of statement the guards made to State Department investigators under a threat of job loss.

The appeals court reversed that ruling that the indictment of the guards had been improperly obtained through the use of their compelled statements. It ruled Urbina wrongly interpreted the law.

The appeals court sent the case back to Urbina to determine what evidence, if any, the government presented had been tainted and whether it was harmless.

The public version of the decision is here however, there is also a sealed classified version containing additional material.

The first thing to consider here is the standard of review the Circuit Court used in analyzing the appeal, because there were intermixing of factual and legal findings inherent in the Kastigar process, the court reviewed for clear error:

We review the district court’s findings that the government used a defendant’s immunized statement for clear error, United States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North I”), a standard that is met for any finding that was “induced by an erroneous view of the law,”

In a nutshell, what that means is that the appellate court had to give strong deference to the findings by the trial court. In spite of this deference still unanimously blew Judge Urbina’s findings straight out Read more →