December 13, 2008 by Ron Madson
The Salt Lake Tribune contacted me this week and might publish my offer to defend the Blackwater security guards. First published in the Mormon Worker a year ago, I thought I would resend it here in that the issue has come up again. Utah might be the one of the few jurisdictions where Blackwater guards would stand a chance for acquittal…Anyway, here is how I would approach their defense.
By Ron Madson, Attorney At Law
I am offering my legal services to the Blackwater private security guards who allegedly shot and killed eleven Iraqis civilians. In all modesty, the American legal profession comes up with the most novel, and effective defenses to those charged with homicide. Take for instance, the “insanity” defense. The “insanity” defense to homicide was once defined in English Common Law as a person being so lost to reality that when that person was cleaving someone’s head into two pieces with an axe, in their mind they were simply slicing a head of cabbage in preparation for supper. However, thanks to the ingenuity of modern legal minds, the traditional “insanity” defense has been extended to such things as “premenstrual cramps”, “moody Mondays” and of course, the assassin of San Francisco Mayor Moscone had the good fortune of having an attorney who could, with a straight face, successfully argue that his client was suffering from a diminished capacity brought on by a diet of “Twinkies and Coke.”
I cannot take credit for either the concept, or even the name, of the innovative legal defense I am suggesting for Blackwater. The full credit goes to Vice-President Dick Cheney for formulating the “One Percent Doctrine. Mr. Cheney in the case of United States v. Iraq succinctly stated his defense of the Iraq invasion: “if there is even a one percent chance of a terrorist getting a weapon of mass destruction the United States must now act as if were a certainty.” Growing out of that solid foundation were two unassailably logical Cheney rules: First, that “it is not about our anaylsis…it’s about our response” and secondly, Cheney’s Rule of Evidence making “suspicion, not evidence is the new threshold for action.”
The outward facts of the September 16, 2007 Blackwater incident, in which eleven or more civilians were killed can appear challenging when one applies a traditional approach to a “crime scene.” Testimony of survivors, eyewitnesses, and even a videotape tells a story of the Blackwater security guards initiating the shooting and killing of a husband, wife and their infant who were in a small car, guilty of at least running past a traffic cop, followed by expertly-trained Blackwater professionals appearing to shoot any and all civilians near the intersection—in the process, killing a ten year-old trying to run away and shooting his mother who came to his rescue. Even the traffic cop was shot and killed. This looks like a tough case to a pedestrian attorney, but given the Cheney Doctrine and its successful application by fellow neoconservatives in Iraq, Blackwater need not despair.
First, a good attorney learns to frame the issue. Applying the One Percent Doctrine, the issue is not whether the victims started the shooting or actually did something as a direct threat. The only issue is whether the Blackwater personnel believed in their gut that there was a one percent statistical chance those civilians could possibly in the near or distant future shoot at them first. Frankly, this part of my case is easy. Recent polls show that 50% of all Shiites and 90% of all Sunnis approve of the killing of Americans occupying Iraq. I would bet my legal license that those civilians had to be either Shiite or Sunni and given their proclivity for violence and these revealing polls, there had to be at least a one percent chance a particular Iraqi civilian at any particular intersection might shoot at my freedom-fighting clients. Second, once the issue is properly framed, the presentation of evidence begins. Rule of Law novices like President Maliki and Iraqi jurists would keep trying to drag tedious facts and evidence into the case. Isn’t it obvious that the Iraqis have not been properly trained by their neoconservative mentors? The issue is not what actually happened, but what could have happened in the minds of those security guards following the now well established (slightly modified) principle borrowed from the O.J. Simpson defense team: “make the facts fit, and then acquit.”
Unfortunately for Blackwater, this war, like all wars, will end some day. But even as we have breakthroughs in science from the innovations that go into space exploration, seemingly meaningless foreign wars can create wonderful domestic breakthroughs in the field of ethics. Think of the whole new flood of legal defenses now available to the legal profession at home. Gang warfare could be defended on the pre-emptive strike doctrine given the well-documented—or at least perceived—potential attack of a rival gang. The violence cycle could go on forever as long as we make sure to arm and assist any gang that appears to be unfairly dominated by the other. Think of the divorce law bonanza! It is well-established that there is more than a one percent chance your spouse may divorce you. Divorce him/her first. Then look around your neighborhood. Is there a one percent chance someone will burglarize your home or shoot your dog? If so, then first identify a home with stuff you would really like, starts some rumors based on solid neighborhood gossip, fill in a few facts, and then in coordination with the coalition of the willing, shoot their dog, steal all their good stuff and trash their home. The whole neighborhood will get the message that you are the “winner.” Regional/neighborhood peace will surely break out.
The legal profession takes their hat off to Dick Cheney. To think that he could go hunting and shoot a friend in the face and then have that friend apologize to him for all the trouble it caused Dick. The man is more than a legal genius—he is truly a pioneer in legal doctrine that will provide generational protection and an ethical framework for many freedom-spreading neoconservatives that will surely follow in his footsteps. And remember: it is not what you do or what you appear to be doing, but rather what you think you are doing that defines this truly insane defense. So after you have wielded you war battle axe and split open a few tens of thousands heads, and then are wrongfully charged with war crimes, remember to repeatedly mutter as you drool on the witness stand “I am splitting open cabbage heads and liberating them so they can enjoy peace, security and freedom.” It will make no sense at all—and that is the beauty of it.