The failure of the Blackwater case will be very bad for the reputation and standing of the US and her allies, and not only in Iraq and the Middle East but also the developing world. It will extend into the salons of the bien pensants in the West itself.
The story will be that the American establishment have ensured the American security guards who killed innocent Arabs will go free. It will reinforce the recurring theme that a brutal imperialist USA continues to ride roughshod over the fundamental rights of those from the third world. But the truth is that the United States has been a benign – perhaps the most benign – dominant world power.
Rather the Blackwater decision is just another example of the curious indeed perverse way the American criminal justice system works today, and influences other systems, including our own.
It used to be said that it is better that 100 guilty men go free than one innocent man be convicted. Today the US criminal justice system seems to be little concerned with the conviction and punishment of the guilty. Rather it seems obsessed with complex and increasingly rigorous rules to filter out evidence deemed to have been illegally or improperly obtained or otherwise inadmissible. Note that it is not the veracity of this evidence which is in issue. It is its admissibility.
The reason for this complex, expensive and slow obstacle course is this. The rank and file citizen serving on a jury is assumed not to have the intelligence, the learning, and the ability to judge and to weigh such evidence, even with the assistance of judicial advice. This is in marked contrast with the intelligence, the learning, the ability with which the elite professionals are endowed. (From time to time this superiority will be manifested in conspicuous displays of moral compassion.)
The theory is that were the rank and file in a trial jury to be exposed to such inadmissible evidence in the Blackwater case they would too easily be railroaded by the prosecution into a conviction. (Already the grand jury which sent the accused to trial had been so exposed.) In any event, many of the elite professionals incline to the view that the perpetrator of crime is also a victim, a victim created by our evil capitalist society.
The American criminal justice system is today less about maintaining law and order, the general public interest or the rights of the victims. It is also irreconcilable with the effective conduct of war, a serious disadvantage for the dominant world power.
That is why even after the 1993 bombing of the World Trade Centre, the bombings of US facilities in Saudi Arabia, and the consequent deaths of twenty six US servicemen, President Clinton allowed bin Laden to leave Khartoum unhindered. He was advised that none of the evidence showing bin Laden’s culpability would be admissible in a US court.
That is why President George W. Bush wisely chose to send terrorists taken in Afghanistan to Guantanamo Bay. The closure of the prison will be shown to be unwise, indeed naive. It will result, as it already has, in the release of dangerous terrorists and the commission of more acts of terror.
In the Blackwater case the defendants – Paul Slough, Evan Liberty, Dustin Heard, Donald Ball and Nicholas Slatten – were guards employed to provide security to U.S. government employees in Iraq. Part of a tactical support team in Baghdad in September 2007, they took up positions in Nisur Square, just outside the International Zone after a car bombing. Coming under what they said was an armed attack from insurgents, they returned fire and shot and killed fourteen persons and wounded twenty others.
As soon as investigations began, they were directed to submit to interviews at the State Department offices in Baghdad.
After these investigations, the authorities concluded the dead and wounded were unarmed civilians, the victims of unprovoked violence. They charged the defendants with voluntary manslaughter and firearms violations.
The defendants claimed theirs was only a legitimate response to a mortal threat, and that by forcing them to make statements under a threat of job loss, the government had violated their constitutional rights. Under a 1967 Supreme Court ruling such “compelled statements” were covered by the Fifth Amendment privilege against self-incrimination. They could not be used in a subsequent criminal prosecution. In addition, any evidence unearthed as a result is also tainted.
Not content with this, the courts have since imposed an even greater burden. The prosecution now has to prove that it made no use whatsoever of these immunized statements. Or if it did it has to prove any such use was harmless beyond any reasonable doubt.
The prosecution can be required to submit to a lengthy investigation of the way it has conducted the case. The prosecution in such a case will typically appoint a “taint attorney” to ensure the prosecution is clean and that appropriate “prophylactic measures” have been put in place.
In this case a three week investigation was held by the court late last year purely to establish into whether the government had made any use of compelled statements. As Judge Ricardo Urbina proudly reported, the court heard twenty-five witnesses, the entire prosecution team, the lead FBI agents in charge of the investigation and all defendants.
The court found the prosecution used the defendants’ compelled statements to obtain the grand jury indictment in the case. Its key witnesses were tainted by their obvious knowledge of the compelled statements.
The judge dismissed the prosecution’s explanations as all “too often contradictory, unbelievable and lacking in credibility.”
The government’s case collapsed, but not for any wish to protect the accused.
But that is not how it will be interpreted in the Arab world and beyond. In the meantime the American criminal justice system continues to influence developments in other common law countries including Australia, with little prior public debate or involvement.