Look, I don't like Blackwater/Xe or Erik Prince. I wish the current administration would end all contracts. And I certainly wish the Congress had been better prepared in its inquiry when Prince testified before them.
But I can never justify the violation of rights in the name of pursuing some supposedly higher objective, or because the person(s} being denied rights are despicable or hateful.
That path leads to madness.
That path was the one trod by the Bush administration.
It was wrong then, it is wrong in this case, and if it is never NOT wrong then we have abandoned the Bill of Rights.
The prosecutors erred badly in using statements compelled by the State Department under threat of losing their jobs. That seems a fairly clear violation of Miranda rights to most neutral observers.
It was the obligation of the prosecutors to develop evidence independent of the use of those statements.
Let me quote from the Washington Post story on the case:
The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting. The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors improperly used them to help guide their investigation. Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements.
"In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.
Before we go any further, perhaps people might want to check on Judge Urbina, who had served as a staff attorney for the District of Columbia's Public Defender service, taught at Howard U. Law School, served on DC Superior Court, and was appointed to the Federal District Courtby Bill Clinton in 1994.
I once had a student who now posts here - and who had changed enough over time to vote for Obama - who said that he was okay with Bush and his administration doing the NSA spying because he trusted Bush. I asked whom on the Democratic side he least trusted and/or most feared. He said Hillary Clinton. I asked if he were willing to give Hillary Clinton the same power over his communication. He was very pale, almost albino, in appearance, and yet one could see the blood visibly drain from his face. I pointed out that we defended the principle for the benefit of all.
Was not one of our biggest complaints against the Bush administration how they rationalized violations of rights in the name of what they viewed to be a higher cause? Think of all the examples of their rationalizations we rejected:
The NSA scooping up all electronic communication in that sealed room in San Francisco
the ticking time bomb scenario as a rationale for the use of torture
extraordinary rendition of people to nations that would torture on our behalf
extraterritoriality at Gitmo and elsewhere to keep detainees out of US Courts
arguing that "enemy combatants" were not entitled to the "quaint" protections of the Geneva Conventions, notably Common Article 3
arguing that these were not American citizens and thus not entitled to the protection of the Bill of Rights, even though the language thereof speaks of persons, not of citizens
rounding up protesters at the Republican National Convention in New York in 2004 and having them penned up illegally
establishing "free speech" areas to prevent people from exercising their free speech and assembly rights in opposition to the President
establishment of a military commission process that the Supreme Court made clear was unconstitutional
taking an American citizen arrested on US soil and illegally detaining him outside the civilian court system
You can add to that list, which is incomplete, but gives the sense of the willingness of the previous administration to trample on rights of anyone in order to achieve its policy goals.
If we objected to that then, then we should be supportive of the decision of this judge and this decision.
We can support the decision and still desire that the Blackwater personnel be prosecuted. It was the obligation of the prosecutors to independently develop evidence of wrongdoing. Otherwise inadmissible evidence can be used usually only if the prosecution can demonstrate inevitable discovery. No attempt to establish that was offered here.
I am not a lawyer. I merely teach government and politics to high school students. Yet as unversed as I might be in the niceties of law, I know this decision was correct.
If we ever waiver in our support of basic civil liberties, we abandon the Constitution itself. If an administration can pick and choose when it will abide by the limits placed upon its actions, the criminal justice system becomes an arm of political repression. Certainly anyone aware of the U. S. Attorney scandal, of the abusive prosecution of Don Siegelman, of the behavior of the likes of Rachel Palouse, should understand the implications of allowing prosecutorial power to be used without the limits that are supposed to exist. Those limits start with the highest standard of protection of the civil liberties in the Bill of Rights, and in the Constitution itself (habeas corpus is defended explicitly in Article I Section 9, clause 2, which reads "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
Let me return to the Post article:
The Justice Department can appeal the ruling. But legal experts said it will have a difficult time because Urbina wrote such a detailed opinion and held such long hearings. Prosecutors can also seek a fresh indictment but would be precluded from using any evidence that Urbina ruled was tainted. That would be another tough task because Urbina eviscerated much of the government's case. He also found that many of its key witnesses were badly tainted by the guards' statements, which they had read or heard about in the media.
A judge who offers a very detailed opinion explaining his ruling does us all a favor. I remind people of the incredibly thorough opinion by Judge John Jones in Iitzmiller v Dover Area School Distric, involving a school board's attempt to replace the teaching of evolution with "intelligent design" - Judge Jone, appointed by George W. Bush, ruled the teaching of "intelligent design" as science was unconstitutional. If you read the Wikipedia article on Judge Jones, you will find this statement he made in a lecture at Bennington College in 2006:
If you look at public polls in the United States, at any given time a significant percentage of Americans believe that it is acceptable to teach creationism in public high schools. And that gives rise to an assumption on the part of the public that judges should 'get with the program' and make decisions according to the popular will.
There's a problem with that....The framers of the Constitution, in their almost infinite wisdom, designed the legislative and executive branches under Articles I and II to be directly responsive to the public will. They designed the judiciary, under Article III, to be responsive not to the public will--in effect to be a bulwark against public will at any given time--but to be responsible to the Constitution and the laws of the United States.
That distinction, just like the role of precedent, tends to be lost in the analysis of judges' decisions, including my decision.
to be responsible to the Constitution and the laws of the United States - that is how Judge Jones ruled in Kitzmiller and it is how Judge Urbina ruled in this case. Both ruling were correct. One man was appointed by George Bush, one by Bill Clinton. Both functioned properly as judges.
We may not like what the Blackwater employees did. I certainly don't. And whether or not they can ever be prosecuted anywhere, I think the U. S. Government owes compensation to the families of those shot in the event in question. Hell, I think Blackwater/Xe should be sued for damages with the support of the US Government.
But as much as I despise what the men in question did, I am unwilling to violate their constitutional rights in order to punish them. To do so would punish us all, put us all in jeopardy, provide a precedent for prosecutors to abuse rights of those with whom we might agree.
I am unwilling to see that happen. I am unwilling to undermine the Constitution.
What about you?
Peace.