AUSA: Fallout of Blackwater Ruling Could Make Prosecutors ‘Flinch’
By Joe Palazzolo | February 11, 2010 5:23 pm

Blackwater prosecutors Kenneth Kohl (left) and Jonathan Malis met in Baghdad in December 2008 with families of victims of the shooting. (Getty Images)

The Washington Post’s Del Quentin Wilber has a nice take-out on the saga of the government’s case against five former Blackwater guards, with an emphasis on the lead prosecutor, Assistant U.S. Attorney Kenneth Kohl.

The case stems from a shooting in a crowded Baghdad traffic circle in 2007 that left 17 Iraqi civilians dead. The incident inflamed anti-U.S sentiment in Iraq and fueled a debate here over the oversight of the private security firms in war zones. The former guards, who were escorting a convoy of U.S. diplomats, say they took fire and responded with appropriate force. Prosecutors say the guards fired without provocation.

Wilber pieces together the scene in Baghdad’s Nisour Square, as others have, and presents a fine summary of a federal judge’s ruling dismissing the indictment on the grounds that prosecutors used tainted evidence to build the case. (We’ve written about the opinion and the government’s subsequent appeal here and here.)

But much of the new material focuses on Kohl, a prosecutor in the National Security Division of the U.S. Attorney’s Office for the District of Columbia. The judge, Ricardo Urbina, scolded Kohl for disregarding the advice of a “taint” attorney, who was tapped to determine whether certain statements the guards gave to State Department investigators after the shootings could be used against them.

Kohl declined comment for Wilber’s story but wrote in an e-mailed statement, ”All of us who were involved in this case felt an obligation to the 34 victims who were killed or wounded at Nisour Square to do everything we could, within the bounds of the law, to bring this case to trial in an American courtroom.

“We don’t want federal prosecutors to flinch at taking on tough cases involving complex legal issues, and I worry that some of the reaction to the court’s ruling will have that effect.”

Kohl, 50, joined the department in 1985, after graduating from the Northern Illinois University College of Law. (He grew up in the Chicago area.) According to Wilber, the prosecutor was a fast riser who earned a reputation as an “aggressive and zealous advocate for victims.”

When Kohl was working homicides, he never lost a case, several of his colleagues told Wilber. His colleagues appeared equally impressed with his more recent work. Wilber reports:

In more recent years, he was assigned national security cases, including the years-long investigation into the anthrax attacks. In 2007, Kohl won a conviction against a Colombian rebel leader who took three Americans hostage. The man was sentenced to 60 years in prison.

Alex Barbeito, an FBI agent who worked on that case, said Kohl was meticulous and brave. “He came down to Bogota several times, despite death threats to U.S. prosecutors,” Barbeito said. “To me, he’s exactly the type of prosecutor an agent wants to handle complex international criminal cases.”

Kohl visited Baghdad three times during his investigation of the Blackwater guards. On one trip, Wilber reports, he had to dive under the bunk of his trailer, located in the Green Zone, when the compound was hit by rockets and mortar shells.

“And yet he still went back,” a fellow prosecutor wrote in an e-mail. “It would take a lot for me to go back there” after that.

It’s also worth noting that while Urbina used strong language to criticize the prosecutors, in a separate ruling the judge said their conduct did not warrant cutting off the government’s ability to bring new charges.

“The court is not persuaded that the additional, extreme sanction of dismissal with prejudice is justified under these circumstances,” Urbina wrote.

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