"A decade of gross prosecutorial abuse"

I depend on Scott Horton's "No Comment" blog at Harper's to help me make sense of the complicated legal issues that keep popping up in political contexts. So I've been waiting for him to comment on the dismissal of the Blackwater case since I heard about it last week. Here's the news as reported by the AP:

A federal judge dismissed all charges Thursday against five Blackwater Worldwide security guards accused of killing unarmed Iraqi civilians in a crowded Baghdad intersection in 2007....[U.S. District Judge Ricardo] Urbina said the prosecutors ignored the advice of senior Justice Department officials and built their case on sworn statements that had been given under a promise of immunity. Urbina said that violated the guards' constitutional rights. He dismissed the government's explanations as "contradictory, unbelievable and lacking in credibility."

The story quotes a Justice Department spokesman saying, "We're obviously disappointed by the decision." But according to Horton's take, which comes via an interview with Amy Goodman of Democracy Now!, that disappointment isn't so obvious:

There was plenty of evidence prosecutors could have used that they evidently werent prepared to, including eyewitnesses there. The decision to dismiss was taken as a punishment measure against Justice Department prosecutors based on the judges conclusion that they engaged in grossly unethical and improper behavior in putting the case together.And specifically what they did is they took statements that were taken by the Department of State against a grant of immunity; that is, the government investigators told the guards, Give us your statement, be candid, be complete, and we promise you we wont use your statement for any criminal charges against you. But the Justice Department prosecutors took those statements and in fact used them. They used them before the grand jury. They used them to build their entire case. And they did this notwithstanding warnings from senior lawyers in the Justice Department that this was improper and could lead to dismissal of the case. It almost looks like the Justice Department prosecutors here wanted to sabotage their own case. It was so outrageous.

I've seen a lot of decade-in-review commentary in the last few weeks, but most of it was holiday filler. This, on the other hand, strikes me as significant and sobering:

It was a decade of gross prosecutorial abuse. We saw lawyers at the US Department of Justice issue opinions attempting to justify torture and mistreatment of prisoners. That was adopted as a legal mantra of the department. We saw hundreds of politically motivated prosecutions being brought, one of which is already withdrawn. That was the prosecution of Senator Stevens of Alaska. But we have the Siegelman case, the Paul Minor case, many others, where notwithstanding now overwhelming evidence of misconduct by prosecutors, the Justice Department standing its ground. We have the Broadcom case only a few weeks ago, in which a judge out in California also found that there was gross prosecutorial abuse. And now this case.Its really quite a mountain of evidence now pointing to serious misconduct by Justice Department prosecutors. And theres very little evidencealthough most of this occurred on the watch of the Bush administration, theres very, very little evidence that Eric Holder has realized the gravity or severity of the situation or taken any appropriate measures to deal with it.

There's more: read (or watch, or listen to) the whole interview. Somehow, this "mountain of evidence" hasn't troubled Newt Gingrich, who went on The O'Reilly Factor last night to claim that the personnel in the Justice Department, including the attorney general, "start every day with a presumption that the rights of terrorists are more important than the lives of Americans." Memo to the GOP: the "rights of terrorists" stump speech is losing its zing. Try attacking the justice department for corruption and incompetence instead -- in other words, less "expert" analysis based on guesses about what people are thinking when they wake up, and more based on findings of misconduct that undermines the integrity of our justice system and our success in bringing democracy to Iraq. Sure, Cheney won't like it if you go down that road. But that kind of opposition might do more than score a few political points -- it might do some good.

Mollie Wilson O’​Reilly is editor-at-large and columnist at Commonweal.

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