New Year's Eve 2009 was a surreal celebration for Rochester native Evan Liberty, who'd had his life upended after being indicted in the killing of more than a dozen innocent Iraqis in Nisur Square in 2007.
But earlier in the day that dark cloud that had hung over him was lifted once and for all by a federal judge who dismissed the case due to prosecutorial overreach and lack of evidence.
But two days later the Obama administration showed it was willing to throw Liberty and three other Raven 23/Biden 4 Blackwater security guards under the bus to politically appease a foreign government.
"The administration of President Barack Obama, together with then-Vice President Joseph Biden, Secretary of State Hillary Clinton, and Attorney General Eric Holder, determined that the vital national interests of the United States, namely, political stability in Iraq ... outweighed a fairminded application of American constitutional protections," a motion filed earlier this month in a U.S. District Court of the District of Columbia argues. "The price was the liberty of four American combat veterans: Dustin Heard, Paul Slough, Evan Liberty, and Nicholas Slatten."
|From left, Dustin Heard, Evan Liberty, Nicholas Slatten, Paul Slough (Courtesy photos)
Illinois attorneys John N. Maher and Kevin J. Mikolashek of Maher Legal Services drafted the 60-page Habeas Corpus motion that calls on the court to vacate, set aside and free the four to go home to their families immediately due to a multitude of Brady violations, which refer to when prosecutors fail to turn over evidence favorable to the defense.
Maher, a former JAG officer in Afghanistan and federal prosecutor, declared the case against the four former Blackwater guards a total travesty of justice that put political expediency over the constitutional rights of four U.S. heroes who were all highly decorated wartime servicemen.
Maher said the willingness of the U.S. government to subvert the four men's rights to "appease a foreign power" was breathtaking.
"The very rule of law we were trying to establish (in Iraq) was sacrificed when it came to these warriors and true patriots," he said.
That willingness showed up first in Secretary of State Hillary Clinton's email to a state department official in Baghdad on Jan. 2.
"... what can we do about Judge (Ricardo) Urbina's ruling' [REDACTED IN ORIGINAL] For example, what is the likelihood of success on appeal? Can the US file a civil action against the company? Pay compensation to the victims? What other options do we have?" Clinton wrote.
|Then Vice-President Joe Biden shakes hands with the Iraqi President during a January 2010 visit to Baghdad where he pledged continued prosecution of the Raven 23 team after a federal judge had tossed the case. Raven 23 is now known as the Biden 4 since Biden was in the thick of what is now being proved a gross travesty of justice.
Here's the reply from state department legal adviser Harod Koh:
"Re Blackwater. I have already put these very questions to our team, and they are working up a memo on the subject. Significantly, the press accounts are all saying that State Department lawyers appropriately warned the DOJ prosecutors, but that the DOJ lawyers chose to take a different route. I will keep pressing and give you an oral report at Monday's 8:45, and we can get the promised memo to you soon thereafter."
"Fearing reprisals from these Iraqi politicians ... the State Department communicated concerns about the impact the decision was having on them diplomatically and politically to Attorney General Holder directly," Maher's motion states. "These discussions included an exchange of messages conveyed by the State Department between Holder and Iraqi Prime Minister Maliki. Even State Department legal advisors were applying pressure on the Department of Justice to appeal the decision, despite the overwhelming 90-page rebuke from Judge Urbina," who had dismissed the case.
The previously undisclosed cables establish a political motivation to prosecuting Raven 23/Biden 4, the motion reasons.
Raven 23 is often represented as the Biden 4, because it was Biden who a couple of weeks later went to Baghdad and promised the Iraqi government that just because the case was tossed didn't mean the end of it.
"Prosecutorial misconduct has run stem to stern in this case," the motion asserts. "The impetus for the prosecution's zeal to 'secure justice for the Iraqi people,' as then Vice-President Joseph Biden publicly promised, overwhelmed prosecutorial discretion and resulted in a crabbed governmental mindset - not to follow the evidence proving justification and self-defense - but rather, to cobble together an inferential narrative to win at all costs and serve a foreign power, sacrificing protections provided to the (Biden 4) by the U.S. Constitution."
Other newly released information contained in the motion include:
That the Iraqi police colonel who investigated the incident regularly reported U.S. troop movements to Iranian proxis and was, himself, an Iraqi insurgent sympathizer.
"And state department cables at the time show they knew about this," Maher said.
That there is a missing gap of drone footage taken during the attack that might have been able to exonerate the actions of the Biden 4.
"A gap in drone footage discovered from the subsequent trial of Slatten is suspected to reveal the truth of what happened at the Square ... the United States (government) does not have the drone footage helpful to the defense, only drone footage deemed by prosecutors helpful to their narrative," the motion states.
That no witnesses ever testified they saw Liberty fire at civilians in the square.
"After (another Raven 23 member) ordered Liberty to open his door a second time, he saw Liberty fire out the door toward the southeast tree line, where (the member) believed incoming fire was originating. No alleged victim was in that area. No other witness saw Liberty fire his weapon," the motion argues.
The events leading to the Nisur Square incident began the afternoon of Sept. 16, 2007, when a powerful bomb went off outside the Green Zone in Baghdad, and a Blackwater team escorting a diplomat had to get them to safety as fast as it could. Liberty's tactical support team - named Raven 23 - raced to secure a traffic circle so the first Blackwater team could safely reach the Green Zone."
As what appeared to be civilian traffic mostly either slowed or turned back, a white Kia driving on the wrong side of the road approached the roadblock where Blackwater Team Raven 23 was securing the circle.
Earlier in the day a morning briefing had warned Blackwater teams about a white Kia suspected of being loaded with explosives driving around looking for targets, so when the car continued to drive erratically toward the Raven 23 positions, the vehicle's occupants were warned verbally then with warning shots before someone from the team killed the driver with a single bullet.
Liberty and the three others charged in the attack then say what appeared to be Iraqi police began firing at Raven 23, initiating a furious exchange that federal prosecutors said left at least 14 Iraqi civilians dead and many more wounded. It's important to note the using civilians as shields was a favorite Iraqi insurgent strategy during this time of the war and even dating back to the first Gulf War during George H.W. Bush's presidency.
The four were found guilty by a Washington D.C. jury and sentenced in April 2015. Slatten got life, while Liberty, Slough and Heard got 30 years. The latter three's sentences were tossed by an appellate court as "cruel and unusual" and in September of last year they were resentenced to roughly half their original sentences.
Maher, who helped secure the release of formerly imprisoned veteran Clint Lorance, said there is no timetable for the U.S. District Court of the District of Columbia to respond to his motion dated Sept. 14.
The motion is likely already in the hands of D.C. Judge Royce Lamberth, who has been steadfast in his condemnation of the four former Blackwater guards, saying "they panicked" and opened fire without reason.
Maher said Lamberth could decide to vacate the case immediately or he could sit on it indefinitely.
"There is no deadline for a response, but within a reasonable time he should direct us to show cause, study and litigate," he said.
He said if the 77-year-old Lamberth were to ignore the motion for a protracted time one remedy not often sought could be to motion for his recusal based on bias, something that would have to be proved.
"There are remedies that could be sought but they are not always easy," Maher said. "We certainly aren't entertaining anything like that now."
Maher is also aware that a request for full pardon of the Biden 4 is with the president's team.
He noted that such a pardon might be gladly accepted by all four, but there are caveats that come with a pardon.
"A pardon restores freedom, but you still might have restrictions on voting, parole obligations," Maher said. "And the judgment of a conviction remains on your record."
Meanwhile, Evan Liberty's grandmother, who lived in Portsmouth, passed earlier this month, said his father, Brian Liberty of Rochester.
"After I read the eulogy for my mother I read a letter from Evan," Brian said. "It was a beautiful letter."
Now all four of Evan's grandparents have passed away while he's been imprisoned, Brian Liberty said.