The question of how people should be punished for acts committed during war is a thorny one.  We have the example of Nurenburg which extablished the principles of crimes against humanity and that following orders is an insufficient defense.  More recently, there have been reconciliation commissions instead of prosecutions and the establishment of the world court.

Two recent events have brought all this to mind.  First, there was the dismissal of the case against the Blackwater employees who murdered Iraqi civilians.  Then, there is the uproar in some circles over the criminal charges brought against Omar AbdulMutallab, the would-be Christmas Eve bomber.

In the Blackwater case, Justice Department lawyers screwed up the case.  It is that simple.  Makes me wonder if everyone at the Bush Justice Department was incompetent.  According to the story in the New York Times

The issue was that the guards, as government contractors, were obligated to give an immediate report of what they had done, but the Constitution prevents the government from requiring a defendant to testify against himself, so those statements could not be used in a prosecution.

Less than two weeks after the shootings in Nisour Square in Baghdad in September 2007, lawyers at the State Department, which employed the guards, expressed concern that prosecutors might be improperly using the compulsory reports in preparing a criminal case against them, according to the decision.

The prosecutors were also concerned, even using what they called a “taint team” to try to prevent information in the guards’ compulsory statements from influencing the investigation, according to the 90-page ruling by Judge Ricardo M. Urbina of Federal District Court in Washington. The judge said the prosecutors had failed to take “common sense precautions” to avoid the problem.

The ruling led to disappointment in the United States as well as in Iraq.

Judge Urbina’s ruling states in his introduction

From this extensive presentation of evidence [during a 3 week hearing beginning in October 2009] and argument, the following conclusions ineluctably emerge.  In their zeal to bring charges against the defendants in this case, prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. …. The Government used the defendant’s compelled statements to guide its charging statements, to formulate its theory of the case, to develop investigatory leads, and, ultimately, to obtain the indictment in this case.

I guess the argument that Jack McCoy always uses on “Law and Order” that the discovery of the evidence was inevitable, didn’t work.

According to the Times story

But the judge’s decision alludes to at least two routes through which the government could reinstate a prosecution.

Although the specifics of the guards’ statements cannot be used against them, the guards could be prosecuted for willfully providing false information in those statements.

In statements, the guards gave detailed information about what kinds of weapons they had used, including a sniper rifle and a grenade, and said they had believed that they were under attack and that they were taking small-arms fire. Investigators did not find physical evidence of an attack by Iraqis, the judge’s decision said.

The decision also points out that at one point, the government considered bringing obstruction of justice charges against Blackwater managers. It is not clear whether such charges are still being considered.

The rules limiting the use of the statements, the judge noted, are not intended to protect defendants from conviction, but to guarantee the integrity of the judicial system.

There is also going to be a civil suit on behalf of the families.  But the sloppy prosecution in this case reminds me of the way the Bush administration did a lot of things:  Action without much thought for the consequences or without much evidence to support the action.  It is another example of impulsiveness.

Then posted on Politico yesterday was this

The ranking Republican on the Senate Intelligence Committee, Missouri Sen. Kit Bond, said Sunday the Obama administration made a mistake by putting terror suspect Omar AbdulMutallab into the criminal justice system, where he has an attorney and the right to remain silent.

“As soon as they got a lawyer, he lawyered up,” Bond said.

Did Senator Bond ever stop to consider that maybe we will have a more successful prosecution if AbdulMutallab has a lawyer from the beginning?  And isn’t this really a criminal matter? 

I’m beginning to think that the Republicans don’t have a lot of faith in either their ability to prosecute cases or in the criminal justice system generally.