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The other day I wrote a diary entry regarding the outrage from many about the "injustice" of the dismissal of criminal charges against Blackwater employees over the alleged massacre in Iraq.  In addition to my diary, teacherken at Blue Commonwealth and Daily Kos also wrote on the issue as well which is linked here Daily Kos diary from teacherken.  Both Ken and I share the belief that the judge decided correctly in this case and that we cannot sacrifice the Constitutional rights of anyone no matter how heinous the alleged offense is.  

This morning I woke to an e-mail that was sent to New Dominion Project about my diary titled "scahill's hatred"

------Original Message------
From: Tom Orange
Subject: for DanielK: scahill's "hatred"
Sent: Jan 1, 2010 2:57 PM

dear NDP,

could someone please ask DanielK why jeremy scahill and others "let their hatred (whether justified or not) blind their reasoning in accepting this decision," that is, why is it "hatred" (and hatred of what exactly) that "blinds their reasoning" and could it not be instead and in fact what reason itself enables scahill and others to see clearly, namely that privatized military security forces are deeply and inherently flawed precisely because they are apparently accountable to no legal jurisdiction or process and seem to answer to no one but corporate boards and CEOs?

tom orange

Since Mr. Orange didn't want to comment on this I decided to write another diary in order to further explain my position and in a more narrow sense.  

Since the alleged massacre, and I use the word alleged because they have never convicted in a court of law but convicted in the court of public opinion Jeremy Scahill has been at the forefront of the investigation of Blackwater and their practices in Iraq.  Nearly all of what he has reported on and discovered has been an eye opening experience for many Americans, including myself and should definitely not go unnoticed.  It is without a doubt that Scahill does not like Blackwater, now known as Xe and Erik Prince based on their previous.  Their connections to the Bush administration and contracts raises many questions but this case and decsion is not about that.  This case is about the rule of law in our country and our Constitution which is non negotiable and applies equally to all, no matter how heinous the offenses.  Now, I will address each point raised by Mr. Orange.

Scahill and others have been focusing incorrectly on the crime when looking at this decision.  Their "hatred" for Blackwater is blinding the understanding that Judge Urbina's decision had absolutely nothing to do with the guilt or innocence of the involved contractors.  Over on RebelReports, Scahill opened an article titled: "Fed Judge Gives Blackwater Huge New Year's Gift, Dismisses All Charges in Iraq Massacre" with the following:  

A federal judge in Washington DC has given Erik Prince’s Blackwater mercenaries a huge New Year’s gift. Judge Ricardo Urbina dismissed all charges against the five Blackwater operatives accused of gunning down 14 innocent Iraqis in Baghdad’s Nisour Square in September 2007. Judge Urbina’s order, issued late in the afternoon on New Year’s Eve is a stunning blow for the Iraqi victims’ families and sends a clear message that US-funded mercenaries are above all systems of law—US and international.

Clearly, Scahill does not attempt to hide a bias again Blackwater in his opinions and writings and that bias is clearly clouding judgment and ability to view this decision rationally.  Again, this has nothing to do with the alleged massacre that took place because the 90-page opinion never once referenced it in the reasoning.  What the ruling did reference were clear and blatant constitutional violations that could not have been overlooked by even those most law and order, anti-defendant conservative judge.  Scahill has continually talked about how this decision sends the message that "mercenaries" are above the law and that statement coming from Scahill is extremely unfortunate.  This is not an issue of being "above the law" and to make such a statement would be to equate it when an accused killer or rapist has their charges dismissed because of Constitutional violations by law enforcement investigators.  This case correctly does not involve or focus on whether or not private military contractors should be in Iraq and who, if anyone they are held accountable to.  The courts must take a narrow focus on the specific issue at hand (whether statements and evidence were obtained in violation of the Constitution) and that narrow focus is what many people, including Scahill refuse to acknowledge or understand.  If it is a "gift" that a federal judge did not ignore blatant Constitutional violations by the government against defendants not matter how angry the public and a country (Iraq) will get is a "gift" I'll happily accept.

What Mr. Orange and Scahill refuse to acknowledge also is that this decision had nothing to do with the guilt or innocence of the accused Blackwater contractors.  I cannot understand at all Mr. Orange's statement that

apparently accountable to no legal jurisdiction or process and seem to answer to no one but corporate boards and CEOs?

 That statement completely falls on it's face in failure because the contractors were held accountable in the United States federal court system and had it not been for the blatant and reckless Constitutional violations of investigators they would have been tried before a jury of their peers.  Again, this is no different than smaller cases throughout the United States that sees charges dismissed based on Constitutional violations.  The only difference is that this decision does not allow for the same verdict the contractors already were convicted of in the court of public opinion which has a substantially lower burden of proof than beyond a reasonable doubt which is the basis of our criminal legal system.  

As someone with a pretty deep understanding of the criminal court process and reviewing the facts and decision of the case and initial investigation I cannot imagine a single judge that would have not dismissed the charges based on the violations and taint that resulted.  Our judicial system is responsible for upholding the law even if those decisions are unpopular to everyone except the defendant.  We would not expect a criminal defendant to have his Miranda or 4th Amendment rights violated without the court remedying the violation so I do not understand why these defendants (No matter how guilty in the court of public opinion they appear) should be held to a different standard.

In closing, I challenge everyone to think of a few things regarding this case.  Over the last eight years we heard a lot of criticism of the Bush administration's attack on the Constitution.  Much of that criticism in certain instances was substantiated through federal and Supreme Court decisions overturning certain practices by the Bush administration.  Keeping that in mind, if we demand that the accused Blackwater contractors are not afforded the same Constitutional protections as all other defendants accused in our court system then we are no different than the previous administration that we were so outraged against.

Originally posted to DanielK on Sat Jan 02, 2010 at 03:53 PM PST.

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Comment Preferences

    •  Pleeeeeze...! They changed their name not their (2+ / 0-)
      Recommended by:
      dancewater, rubine

      modus operendi..Guilty as charged and we are the suckers left holding the bag while Prince and the Gang waltz off with 100s of millions..

      Next thing, you will be defending Custer because he got 300+ killed

      "Course I'm respectable. I'm old. Politicians, ugly buildings, and whores all get respectable if they last long enough." Noah Cross - Chinatown

      by LakePipes on Sat Jan 02, 2010 at 04:06:38 PM PST

      [ Parent ]

      •  So the Constitutional issue means nothing to you? (2+ / 0-)
        Recommended by:
        second gen, DanielK

        Oh, I know what, you're going to tell us when the issue is big enough and the need great enough, then to Hell with the Constitution and the Bill of Rights because this is too important to bother ourselves with such niceties.

        Look, the whole thing stinks.  We get it.  I think Blackwater/Xe/Prince's Pampered Punks or whatever else you call them are a bunch of psychopaths, but we've had enough in this country with a government that ignores the Constitution and thinks the Bill of Rights is inconsequential and meaningless if the crime is great.

        It was clear from the decision that the investigators and junior prosecutors ignored the warnings of those in a position to know that the way they were handling the cases would cause them to become impossible to prosecute.


        It's precisely BECAUSE we went for so long WITHOUT the rule of law under Bush that these investigators and young prosecutors felt free to violate clearly stated rules.  They've been watching the rules not be the rules for almost a decade and as a result ignored the rules.  Don't you get it?  They were on the slippery slope created by the Bush Administration, the one that says rules only count if they don't hurt to apply, and YOU'RE convinced we should let them by THIS ONE TIME.  Nonsense.  If we want to restore the rule of law to this country then we have to make violation of those rules MEAN something.

        •  As far as I can tell the constitution... (1+ / 0-)
          Recommended by:

          seems to be a very fluid document, open to all kinds of interpretation depending on how wealthy and powerful you are.

          It is cute the way we declare its importance while our current prez pisses all over it, i.e. no investigation or prosecution for the bush/cheney cartel.

          If the supreme court can select our prez (2000) and Obama and Holder can decide not to proceed on bush's war crimes, then the constitution is really a document of convenience, as long as you are powerful enough, or a member of a powerful enough clique, then the constitution will do whatever you want it to.

          Corporate PACs, not just bribery but a lifestyle!

          by rubine on Sat Jan 02, 2010 at 05:50:21 PM PST

          [ Parent ]

          •  As far as I can tell you haven't bothered to (1+ / 0-)
            Recommended by:

            familiarize yourself with the document or with the jurisprudence associated with it, preferring instead to simply declare that someone else is "pissing all over it".  

            Constitutional law is messy and complicated and loaded with honest disputes over the many, many conflicting rights, obligations, interests, and consequences involved in its interpretation.

            I've got plenty of problems with the way the 2000 election was handled.  Not saying it's a perfect system or that the decisions we see are always the right ones; however, this does not excuse intellectual laziness in refusing to recognize that it's a complex issue, nor does it prove that the only people benefited by adherence to Constitutional standards are the wealthy and well-connected.  The FACT is that there STILL are rules and despite the way the system lists in favor of the prosecution there are STILL decisions made every day which reinforce those rights.  The solution ISN'T to piss and moan about how the system isn't as perfect as we'd like it to be.  The solution is to stand behind the application of the rules and case law which SUPPORT the Bill of Rights.  Getting back to the actual topic at hand, the fact that you and others might be genuinely angered that the rules worked in favor of the bad guys in this case doesn't make the decision wrong; and whining about how there were other times when the rules might not have been applied doesn't detract from the essential rightness of the decision.

            As to Obama going after the Bush/Cheney cabal, I've been reading the Constitution and see nothing which compels him to do so.  There are good reasons why Obama is not acting in a way which would further fracture this country's political system.  There are substantial reasons for the decision NOT to risk what could amount to a constitutional crisis or to set a precedent for future leaders to have to legally defend or justify their administrations.

            Go back and re-read your Constitution.  It's the Congress and the Judiciary which is supposed to act as a check on the power of the Executive, not the future Executive who must retroactively act as a check on his predecessors.

            •  Yes it is complex... (1+ / 0-)
              Recommended by:

              and their are thousands of lawyers making a good living off that complexity.  But from this simple, ignorant, and lazy, human's perspective watching a president lie our country into a brutal and utterly immoral war, then initiate a policy of torture to force his victims into justifying it, and, as the icing on the cake, skim billions of dollars for his corporate cronies off the top, seems to me to be so glaringly horrid and illegal that no decent, law abiding, person could simply ignore it and pretend it never happened.

              Whatever legal arguments might pour forth, the failure to investigate and prosecute these crimes is a clear indication of a failed system.

              Obama's oath when he became president was to faithfully uphold the constitution.  That is his fundamental, legal, obligation.  If the Bush Adm. did not, in its vast, stinking, criminality, violate the constitution, then the document is essentially meaningless.

              Corporate PACs, not just bribery but a lifestyle!

              by rubine on Sat Jan 02, 2010 at 08:56:32 PM PST

              [ Parent ]

              •  I understand your frustration (0+ / 0-)

                And that is one of the reasons why I wrote this.  Most people don't have that deep knowledge and understanding and that causes the frustration you have.  Again, Catzmaw really gave a good explanation of why President Obama is doing what he is doing.

                •  No... (1+ / 0-)
                  Recommended by:

                  Most people don't have that deep knowledge and understanding and that causes the frustration you have.

                  The cause of my frustrations are the illegal acts of an untrustworthy government.

                  Corporate PACs, not just bribery but a lifestyle!

                  by rubine on Sun Jan 03, 2010 at 12:25:53 AM PST

                  [ Parent ]

      •  "Modus operandi"; and if you read the (0+ / 0-)

        opinion, the judge doesn't say they didn't do it, he says they were forced to admit they did in a way that makes their prosecution impossible.

        Their real God is money-- Jesus just drives the armored car, and his hat is made in China. © 2009 All Rights Reserved

        by oblomov on Sat Jan 02, 2010 at 08:49:43 PM PST

        [ Parent ]

    •  Thanks for the articulate (1+ / 0-)
      Recommended by:

      discusion of why the prosecution was not successful.
      Sounds like the DOJ prosecutors were incompetant, cut too many corners, cheated.
      ?Who did the prosecution?
      Why aren't they fired for cause?
      Perhaps there needs to be an investigation of the prosecutors.
      Cases that were major messes include:
      Ted Stevens
      the former Ala govenor Siegelman(sic)

      Sounds like a major screw ups. Were the prosecutors trying to obstruct justice (who better than a lawyer) to obstruct.  
      Another dept wrecked by the Bushies.
      tipped and rec'ed

  •  I think it's obvious that they're guilty (6+ / 0-)

    But we let guilty people go for this kind of prosecutorial misconduct, because that's the only effective sanction against prosecutorial misconduct.  It stinks, but there doesn't seem to be a better way.  

    Enrich your life with adverbs!

    by Rich in PA on Sat Jan 02, 2010 at 04:03:48 PM PST

    •  Not buying..Prince is guilty under RICO and 100 (0+ / 0-)

      times worse than Gotti or any mafia dons beacuse he is a fukin war profiteer and over biller and under achiever..An done and yes I feel better..!

      "Course I'm respectable. I'm old. Politicians, ugly buildings, and whores all get respectable if they last long enough." Noah Cross - Chinatown

      by LakePipes on Sat Jan 02, 2010 at 04:08:54 PM PST

      [ Parent ]

      •  Not guilty until (0+ / 0-)

        ...convicted by a "jury of his peers".

        If you are a prosecutor and can do a better job that the miserable folks at State and DOJ who screwed this up at the beginning, more power to you.  Go get him on RICO.

        Morally however, he is horrible.  Until we know everything that Gotti or Prince have done, it's not clear who is worse; call it equal.

        50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

        by TarheelDem on Sat Jan 02, 2010 at 04:50:07 PM PST

        [ Parent ]

      •  That doesn't even make sense as invective (0+ / 0-)

        Every dime Prince made came from the US government, which always knew exactly what he was doing.  That's not a defense against torture and murder, but it is a pretty solid defense against war profiteering, overbilling, and underachieving.

        Enrich your life with adverbs!

        by Rich in PA on Sat Jan 02, 2010 at 05:23:38 PM PST

        [ Parent ]

  •  prosecute the prosecutors (0+ / 0-)

    and sue the Prince.  

  •  Having no prescience at all, and little more (4+ / 0-)
    Recommended by:
    oblomov, TarheelDem, jimreyn, dancewater

    than a rudimentary understanding of the nicieties of Constitutional law, in my eyes the State Department "investigation" immediately after the fact was always a backstop for, if not the direct intent to our present unpleasant situation.
    Not CT, just recognizing CYA when I saw it.

    In light of recent events, Justice Holmes test has been reworded so that "No one has the right to yell Liar, Liar on a crowded airplane."

    by DaNang65 on Sat Jan 02, 2010 at 04:16:55 PM PST

  •  Look---this is simple. (1+ / 0-)
    Recommended by:

    If we choose to overlook a violation against the accused---even just once; even though the accused may well deserve to be shot, hung, stabbed, thrown alive into a bonfire, drowned in acid, and fed to ravenous wolves while awake and hog-tied---we risk setting a precedent that will come back to haunt us all to the absolute end of time.

    Yes---the good folk at Xe can be sued into oblivion, and the burden of proof under civil statute lies with the accused---but the examination now should concentrate wholly and most mercilessly upon the prosecutorial staff that just might have decided to throw the Law under the bus for the sake of looking like gods.  Specifically, I'd take a long, hard look at whether there was an organized effort to streamline the trial status for the sake of quick-n-dirty convictions.  That's called organized obstruction of justice---and certainly falls under RICO statutes.

    A wildcat strike against a recalcitrant, apologetic Party is the order of the day. Every day.

    by Liberal Panzer on Sat Jan 02, 2010 at 05:05:01 PM PST

  •  outrage was justified (0+ / 0-)

    you'd have to be heartless to not be outraged by these murderous thugs being let free, even if you agree that constitutionally it had to be done.

    secession = treason. Haters are Traitors!

    by catchaz on Sat Jan 02, 2010 at 05:23:51 PM PST

  •  How much did Prince pay the judge to get them off (0+ / 0-)

    Inquiring minds want to know.

    Yes, I'm het, but I'm NOT a Mad Hetter!

    by Diana in NoVa on Sat Jan 02, 2010 at 07:17:57 PM PST

  •  Huh? (0+ / 0-)

    What Mr. Orange and Scahill refuse to acknowledge also is that this decision had nothing to do with the guilt or innocence of the accused Blackwater contractors.

    If a court doesn't have primary public purpose of deciding the guilt or innocense of a party, who does?

    Keeping that in mind, if we demand that the accused Blackwater contractors are not afforded the same Constitutional protections as all other defendants accused in our court system then we are no different than the previous administration that we were so outraged against.

    Is it really true that all other defendants in our court system get these protections?

    •  In response to "Huh?" (0+ / 0-)

      I'm not really sure what you mean by your first quote but I'll try to respond.  I'm going to assume from your questions you have a very limited understanding of the American criminal court system and hopefully I'll answer your questions.

      There are many proceedings that occur that are the result of attorneys filing motions regarding evidence, change of venue, challenges or jurisdiction or anything else.  The court does have the primary purpose of determining the guilt or innocence of the defendant but even prior to that the court is responsible that all parties involved brings the evidence and charges are brought in accordance with the that.  That is exactly what this decision deals with.  I don't want to go into a full lecture into the legal proceedings as I believe my colleague from Virginia Catzmaw could do a more in depth explanation.  Essentially, this case was dismissed prior to a jury hearing the case.  Yes, the court is responsible for hearing criminal cases but if there are blatant constitutional violations then those protections are in place to serve as a deterrent for future violations.

      Also, I believe that it is true that all defendants in our court system receive these protections.  Of course I am not counting the Gitmo detainees and their legal status currently which is often debated and in my opinion still not figured out.  But for those defendants with charges brought in the American criminal justice system they have all the basic protections of the Constitution.  It doesn't matter if you are a drunk driver, cop killer or Blackwater contractor.  The protections afforded by the Constitution are like I said, non negotiable.  It is the duty of every defense attorney to vigorously challenge the evidence brought against their clients and to be a zealous advocate for them  While not all attorneys are created equal and that is most evident with the prosecutors in this case the protections are still there.

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