Saturday, January 19, 2008

The Unequal Protection Claws

Scott Horton writes a great online column for Harpers Magazine called "No Comment" that I highly recommend. Today's entry, entitled "Blackwater and the Administration of Justice," covers a scandal you may have forgotten about, suffering understandably from "scandal fatigue." He writes:

I spent the better part of the last year looking in some detail into a series of legal policy issues surrounding private security contractors, a process that culminated in the issuance of a report last week entitled Private Security Contractors at War: Ending the Culture of Impunity.(4 MB PDF)

The report deals with an entire industry which has popped up like mushrooms after a spring rain. But when you examine this issue, and particularly its government relations aspects, you come very quickly to a focus on one particular company, Blackwater USA, whose baroque conduct seems to supply the material for novels, if not articles in Soldier of Fortune Magazine.

Horton then goes on to describe how Senior Bush Administration officials are intertwined with Blackwater in both marketing the firm to foreign governments. In fact, he describes speaking with local government officials in Azerbaijan and Jordan who told him of "extensive marketing efforts on Blackwater’s behalf by seniormost officials of the Bush Administration" and that they "pressured and cajoled the local officials to use Blackwater" even "offer[ing] substantial incentives in the process."

It's not hard to see why W found a lot in common with Blackwater founder Erik Prince, as Prince is described as "born to wealth and privilege" in a family "with a long track record of involvement in Republican and Religious Right politics." But Horton also offers evidence for his assertion that Blackwater's relationship with the Bush Administration is "truly extraordinary in many respects." He writes:

One career State Department observer put it to me this way. “In Blackwater’s dealings with the Department,” he said, “I often find myself wondering who is the service provider and who is beneficiary of the services.” His point was simple: Blackwater exercised an unseen influence over the process of contracting and supervision; often the Government seems to be working for them.

So, with this insider relationship between the government and a well connected contractor in mind, remember the investigation of Blackwater employees killing Iraqis in Baghdad's Nisoor Square last September? Last week an article in the New York Times described a briefing given privately on Capitol Hill discussing the Justice Department's investigation into prosecuting Blackwater, whom the Iraqi government now wants expelled from Iraq for its role in the killings. As Horton writes:

After giving the usual disclaimers, the briefers went on to state that notwithstanding the FBI’s conclusion that the facts showed multiple homicides for which no viable defenses existed, at present the prospects that charges would be brought were slim. Why? Two reasons were advanced. First, they stated that Acting Deputy Attorney General Craig Morford had severe reservations about whether the Military Extraterritorial Jurisdiction Act (MEJA) would apply in a case like this, and in any event, it had never been applied this way. Second, they said that State Department investigators had granted limited immunity to those who gave statements and they were skeptical that they would be able to build a case than would not collapse under the weight of that grant of immunity.

I interviewed two persons who were present at those briefings and who requested that their names be withheld. Both had roughly the same reaction. I thought these people were supposed to be prosecutors. It sure didn’t sound that way to me. They sounded like criminal defense counsel arguing against bringing charges. But even more telling one added, “They seemed to be focused on the reaction from their audience. It was as if they were really engaged in an exercise trying to judge ‘if we walk away from this, what kind of blow-back are we going to get?’”

Horton goes on to convincingly describe why he disagrees with the government's "analysis" of whether MEJA applies, saying that "even if it doesn’t, the Justice Department seems to have lost track of a number of other statutes that provide a basis for prosecution, like the War Crimes Act." The article concludes with this:

"...the Justice Department’s briefing showed an amazing willingness to drop the whole thing, rather than build a case.

And this does raise a question about Blackwater’s relationship with the Government, including the Justice Department. In the end, I believe this whole story will tell us much more about the inner working of the Bush Administration and its grossly disfigured Justice Department than it tells us about Blackwater. After all, although it needs to abide by it, Blackwater is not responsible for enforcing the law. That responsibility rests now with a team that seems to be very uncomfortable whenever questions of law enforcement affect the “home team.” And ultimately Americans may judge that a far bigger and more worrisome problem than the tragedy that occurred at Nisoor Square."

- I. Lewis Libby pardoned after jury conviction, just when he would have started talk ing to be granted a "substantial assistance" departure and perhaps avoid prison.
- Telecom retroactive immunity from past law violations pushed and likely to pass. - Prosecutors fired who went after the "home team," replaced with partisan, unexperienced Liberty University grads fresh out of law school.
- Secret Service agent sent to Guam after calling for probe into whether other agents changed their stories after talking to Cheney.
- 470 days of missing emails at the White House.
- And politicians on both sides afraid to stand up for the rule of law or to speak up for it to be applied equally for fear of being labelled "pro-terrorist."

Those who don't understand history are deemed to repeat it and last week Glenn Glenn Greenwald described the way criminal procedure applied differently depending on your social class in Ancient Rome:

...this change of procedure was accompanied by the increasing use of different scales of punishments according to the person of the delinquent.

For purposes of criminal jurisdiction the citizen body fell into a class of honestiores (including members of the Senatorial and Equestrian Orders, municipal magistrates and senators, and soldiers of all ranks), and another of humiliores.

For the same crime a privileged offender might suffer simple banishment, an unprivileged one would be sentenced to penal servitude in the mines;

in capital cases the honestior would be put to death quickly and cleanly, the humilior might be thrown to the beasts.

A person of higher status still enjoyed the right of appeal to the emperor, and he remained exempt from torture, except in trials of treason ... but these privileges were withdrawn from those of the lower order. From the time of Severus [early 3rd Century] the principle that the law was a respecter of persons pervaded the whole of the Roman criminal jurisdiction, a rule which constituted one of Rome's most harmful legacies to the Middle Ages.

Doesn't it sound, at least in the above description, like at least in Ancient Rome the law applied equally no matter what class you came from, except for the fact that appeals were available only to the upper crust? In other words, nowhere does the author describe different laws applying to different classes, only different punishments being meted out. All pigs were equal, at least in this description, regarding whether they broke the law; the inequality came later, when punishment was delivered. But now, in this age of the Gated Community, Orwell's satirical remark seems to have come true: some pigs are more equal than others.

It's as if the ancient proverb that "He who has the gold makes the rules" has become outdated. The new version is "He who has the gold, and the political connections, doesn't have to follow the rules."

And yet next week, as I stand beside some drug-addicted, uninsured, unemployed young person facing a jail sentence, or a termination of parental rights, or a fine that'll take food out of the kids' mouths, someone will think, and perhaps say, "how can you defend those people?"

No comments: