The Constitution’s Sixth Amendment assures defendants in “all criminal prosecutions” the right to speedy, public, fair trials with “the Assistance of (competent) Counsel for his (or her) defense” provided free if unable to pay for it. The Fourteenth Amendment holds government subservient to the law and guarantees due process respect for everyone’s legal right to judicial fairness on matters relating to life, liberty, or property.
In America and elsewhere, defending unpopular clients is a long, honored tradition. So is upholding the law and challenging unfettered power that defiles it. Yet doing it risks lawyers being criminalized for doing their job too vigorously or making enemies of powerful, influential government or business officials in the process.
“In the best traditions of advocacy,” according to her lawyer Michael Tigar, Lynne Stewart was wrongly convicted and now jailed for ethically, morally, and responsibly defending an accused terrorist Washington wanted to convict.
As New York state Attorney General, Eliot Spitzer was an aggressive prosecutor against Wall Street corruption and the Bush administration’s housing bubble involvement and covertly arranged bailouts that followed. In a TV interview and February 2008 Washington Post article, he called the president a fugitive from justice and accused him of doing nothing to help consumers.
In preparing a high-profile campaign to tell all, his own indiscretions brought him down for buying sex from a high-priced prostitute in a Washington hotel. He wasn’t charged, but it ruined his career and halted efforts to target some of the nation’s most powerful.
Defense attorney Paul Bergrin follows in the same tradition. Like Stewart and Spitzer, he challenged the powerful and paid dearly. The New Times Times called him a “top prosecutor” before becoming one of New Jersey’s “most prominent defense lawyers, representing clients as varied as Abu Ghraib defendants, the rap stars Lil’ Kim and Queen Larifah and members of Newark’s notorious street gangs,” all of whom have the same rights as everyone to due process and judicial fairness as constitutional law demands.
Bergrin and other lawyers defended four 101st Airborne Division soldiers accused of killing four Iraqis near Samarra during the May 2006 Operation Iron Triangle. The case made international headlines when evidence showed Col. Michael Steele gave orders to “kill all military age males,” and Professor Stjepan Mestrovic wrote a book on what happened, titled The ‘Good Soldier’ On Trial: A Sociological Study of Misconduct by the US Military Pertaining to Operation Iron Triangle, Iraq.
He documented disturbing evidence of “US government mistreatment of its own soldier-prisoners as well as foreign ‘detainees,’ ” and used Operation Iron Triangle and the book’s main protagonist, Spc. William Hunsaker, to study “patterns of culture” and American society so readers will know what he found.
He quoted Joseph Heller’s Catch-22 to highlight a key theme, saying:
Clevinger “was guilty, of course, or he would have not been accused, and since the only way to prove it was to find him guilty, it was their patriotic duty to do so.”
To the Iron Triangle soldiers also, unfairly convicted who mustn’t be forgotten so perhaps, one day, responsible officials will review their cases and “reform the military justice system to secure authentic justice” now absent.
It was no ordinary murder case. It involve conspiracy, cover-up and intrigue by the government, not the solders who were scapegoated to absolve the powerful. The prosecutor called them “war criminals,” contradicting the key fact: “that a crime becomes a ‘war crime’ when it involves the government, which is to say, when a crime is the result of unlawful social policies and plans.”
Lawful rules of engagement (ROE) killings result from orders at a time of war. Unlawful ones are war crimes for which leaders and high government officials bear main responsibility. According to noted sociologist Emile Durkheim: “The immorality of war depends entirely on the leaders who willed it – the soldier and even those government officials who had no part in the decision remain innocent.”
In other words, top administration figures and Pentagon commanders bear responsibility for the killings and atrocities they order. “But in the current ‘war on terror,’ the open secret is that” low-ranking soldiers are blamed to absolve superiors and let “rotten apples” be prosecuted and punished.
“Who are the real war criminals in the war crimes that were committed during Operation Triangle on May 9, 2006?” Their commanders, not the soldiers. Yet through conspiracy and cover-up they were convicted to absolve the powerful.
In his opening Nuremberg address, Justice Robert Jackson said:
“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberative and concerted use of it to set in motion evils which leave no home in the world untouched.”
He called Nuremberg defendants “men of a station and rank which does not soil its own hands with blood. These were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders….” The same standard applies to America under binding US and international laws.
“The important point… is not just about Operation Iron Triangle, but about this tragic mission and its connections to American society in the new millennium.” It exposes the “systemic dysfunctions in the army as well as American society in this era” that lets innocent victims pay for their superiors’ crimes.
In violation of international and US law, the brigade commander issued an illegal ROE to kill every military-aged Iraqi on sight, the same policy Israelis use against Palestinians and America historically, including during WW II in the Pacific (“the good war”) that historian John Dower called a War Without Mercy in his powerful 1986 book. Nearly always, higher-ups escape responsibility, only low-level soldiers, a few “rotten apples” take the fall.
So four Operation Iron Triangle troops were convicted of conspiracy, murder, aggravated assault, or obstruction of justice for following orders, that if disobeyed would have gotten them court-martialed, dishonorably discharged, fined and imprisoned.
Yet the law is clear and unequivocal, including standards in the US Army Field Manual (FM) 27-10 that incorporate Nuremberg Principles, Judgment and the Charter and The Law of Land Warfare (1956):
— FM’s paragraph 498 states that any person, military or civilian, who commits a crime under international law is responsible for it and may be punished;
— paragraph 499 defines a war crime;
— paragraph 500 refers to a conspiracy, attempts to commit it and complicity with respect to international crimes;
— paragraph 509 denies the defense of superior orders in the commission of a crime; and
— paragraph 510 denies the defense of an “act of state” to absolve them.
Two points are key:
— these provisions apply to all US military and civilian personnel, including top commanders, the Secretary of Defense, his subordinates, and the President and Vice President of the United States; and
— under the Constitution’s Supremacy Clause (Article VI, paragraph 2), all international laws and treaties are the “supreme Law of the Land.”
Distinguished law professor Francis Boyle calls resisting lawless orders “our Nuremberg moment,” and those doing it should be honored, not prosecuted. Authorities issuing them are responsible, not low-level troops who have no choice but to go along and obey.
Mestrovic “document(s) hundreds of instances of such deceit, chicanery, and dubious behavior on the part of the government.” Brigade commander, Col. Michael Steele, followed orders to kill every military-aged Iraqi on sight. Army investigators called it improper, but never charged him to avoid implicating higher-ups.
Four low-ranking soldiers paid the price: Staff Sgt. Raymond Girouard, Spc. William Hunsaker, Pfc. Corey Clagett, and Spc. Juston Graber, on charges of conspiracy and murder for killing four Iraqis during the May 9 raid, and/or other charges. They’re members of Fort Campbell, KY’s Company C, 101st Airborne Division, 187th Infantry Regiment, 3rd Battalion (called Rakkasans). The outcome was predictable. They were tried and either found guilty or pleaded guilty as charged.
Graber pleaded guilty to aggravated assault with a dangerous weapon and received nine months imprisonment under a plea bargain to testify against the others.
Clagett pleaded guilty to murder, attempted murder, conspiracy to commit murder, and obstruction of justice and got 18 years in prison. Hunsaker also pleaded guilty for the same sentence. Girouard was convicted of three counts of negligent homicide and received 10 years confinement.
Throughout the proceedings, they never had a chance, nor does anyone authorities target to convict. They paid for their superiors’ crimes. The Operation Iron Triangle ROE was illegal. Yet in criminal proceedings:
“Law enforcement agents lied and tricked their own soldiers.” They weren’t read their Miranda rights. They were confined in 7 x 7 prison cells 23 hours a day, in violation of minimal army standards. Required autopsies weren’t performed. Neither were scientific and forensic tests. “Some sworn statements were not passed up the chain of command.” Others were shredded. “Information and reports were withheld from (their) Article 32 hearing” — a preliminary process preceding a court martial.
“Perjured testimony was admitted. Fear and intimidation was used to coerce testimony. Witnesses were told to align their stories so that they would please what CID (criminal investigators) wanted to hear. Accused soldiers and lawyers were threatened not to mention certain leaders and policies.” Their commander, Col. Steele, refused to testify. More on that below.
The fix was in, predetermined guilt for a few “bad apples” to absolve the powerful. “There is no way that the average person can conclude that the outcome of (their) courts-martials was real justice. It was not,” and no media coverage exposed it.
Mestrovic hopes his book will keep this tragedy/travesty from “the black hole of history,” as well as defense attorney Paul Bergrin’s heroic role in it, and the price he’s now paying.
Eliot Spitzer, Lynne Stewart, and Paul Bergrin Victimized for Doing Their Jobs
On May 20, 2009, a Department of Justice (DOJ) press released headlined “Newark Lawyer Arrested, Charged with Racketeering Conspiracy, Including Murder of a Federal Witness (along with) Three Others Also Arrested and Charged.”
The 14 count indictment accuses Bergrin of “using various legal entities, including (his law office) to conduct illegal activities, including murder, to protect criminal clients, perpetuate their activities and shield them from prosecution.”
Specifically cited is his alleged role in the “murder of a confidential witness in an Essex County federal drug case, and his efforts to hire a hitman from Chicago to kill at least one witness in a Monmouth County drug case.”
DOJ says the murder never happened. Likely none was planned, but a supposed “hitman” is a cooperating witness, perhaps for leniency on his charges, unrelated to Bergrin. It’s a common DOJ tactic, often with paid informants, to let off lesser fish for bigger ones in unrelated cases.
Bergrin was charged with “racketeering and racketeering conspiracy, wire fraud and wire fraud conspiracy, murder of a federal witness, and conspiracy to murder a federal witness, and, separately, witnesses in a state case, as well as Travel Act violations and conspiracy to commit Travel Act violations.”
If convicted of murder or conspiracy, he potentially faces life in prison. Also charged were:
- Thomas Moran, an attorney in Bergrin’s office;
- Vincent Estevez, currently facing drugs trafficking charges;
- Yolanda Jauregui in connection with an alleged mortgage fraud scheme with Bergrin; and
- Sundiata Koontz in the same alleged mortgage fraud.
The indictment alleges that in November 2003: “Bergrin received the name of a confidential federal informant, who went by the name Kemo, from a client, William Baskerville, and passed along the name to Baskerville’s drug trafficking associates.” He was also arrested on federal drugs trafficking charges.
“Bergrin allegedly told the drug traffickers… that if the informant (was) killed, (he) could get Baskerville out of jail and derail the federal prosecution…. On March 4, 2004, Anthony Young (allegedly at the behest of Bergrin) shot the informant three times in the back of the head…”
From “at least… June 2008 through December 2008, Estevez, Bergrin and Moran schemed to locate and kill a number of witnesses that they believed intended (to) testify against Estevez.”
Begrin’s Involvement in Defending Operation Iron Triangle Soldiers
Lawyers who target high officials risk becoming victims of the system they challenge. Paul Bergrin is the latest, not for any crimes, but for threatening the wrong people — Col. Steele and high administration officials, including Donald Rumsfeld, Alberto Gonzales, George Bush and Dick Cheney.
It’s no coincidence that he was arrested one week before Pfc. Clagett’s trial, then a second time after he announced he’d target Rumsfeld for perjury regarding his sworn testimony about Abu Ghraib torture and abuse.
He got court permission for Steele to testify, something Washington wouldn’t allow to avoid implicating higher-ups instead of “rotten apples” to be sacrificed. Had he done so, imagine the possibilities, including testimony from his second in command, Lt. Col. Nathaniel Johnson, calling him a “toxic leader;” that he used “kill boards,” wanted a big body count, and in one pre-deployment speech told his troops:
…where we’re going they could not send a bunch of Girl Scouts and left-handed midgets to do what needs to be done…. This is real, and the guy who is going to win on the battlefield is the one who gets violent the fastest. (So here’s what) I want you to know. Number One, anytime you fight, anytime you fight, you always kill the other son-of-a-bitch. Always. Do not let him live today, so he will fight you tomorrow. Kill him today… when you walk out that gate, fly out that gate, drive out that gate, I expect you to look like a killer…. Man, it’s time to go hunting…. You are the hunter, you are the predator, you are looking for the prey, and that’s all.
In his journey into the Heart of Darkness, Joseph Conrad wrote:
“one comes to hate those savages… hate them to the death…. Exterminate all the brutes!” In exhorting his troops, Steele called them “predators” and Iraqis “prey.” His order – kill them for a big body count.
In appealing his November 9, 2005-November 8, 2006 evaluation report preventing his promotion to full Colonel, Johnson added:
“Throughout the duration of my command tenure, Colonel Steele’s attitude toward me and my battalion created a dysfunction and intentionally hostile command environment…. (He) constantly articulated his judgment and displeasure that my battalion was not being aggressive enough toward the insurgents…. He bullied and intimidated my company commanders and questioned them behind my back.” The four targeted soldiers “implicated Colonel Steele (as a toxic leader), and he received a letter of reprimand from the Corp Commander.”
Military documents, in fact, showed he acted illegally, caused four Iron Triangle deaths, and got four soldiers convicted for their commander’s crime. Yet he escaped accountability with deputy division commander, Brig. General Thomas Maffey, citing his “miscommunication” (of the rules and) his honest belief of the correctness of the mission ROE.”
Senate Committee Blames Higher-Ups for Soldier Abuses
The fall 2008 Levin-McCain Senate Armed Services Committee Inquiry into the Treatment of Detainees in US Custody concluded that White House officials, their lawyers, and top Pentagon commanders were responsible for the Abu Ghraib abuses, not so-called “rotten apples.” Still, they were wrongly imprisoned and never exonerated, while administration practices went unchallenged, and continue under a new president as official US policy.
Yet on May 10, 2007, General David Petraeus, head of US Central Command said:
“What sets us apart from our enemies in this fight… is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. While we are warriors, we are also human beings.”
Then and now, he lied the way Israeli leaders do calling the IDF “the “most moral army in the world,” as they slaughter, destroy, plunder, and commit the most unspeakable atrocities against anyone who moves or is held in custody. Kill all the brutes, but if lawyers try exposing them, they, in turn, are targeted by a government determined to convict to warn others not to challenge state power even when it’s lawless.
Bergrin’s First Bail Hearing: May 2009
As expected, prosecutors lied in arguing for detention pending trial, accusing Bergrin’s law firm of being “specifically designed to make money by manipulating the criminal justice system illegally (by) manipulat(ing) witnesses, bribing (them), intimidating (and) killing (them).”
“Mr. Bergrin provided information to assist the hit man in identifying and locating these witness so that they could be killed.” An alleged recorded conversation supposedly said he “told the hit man to make the hit look like a home invasion robbery, to put on a ski mask and take all of the money, and that under no circumstances (make it) look like a hit.”
“Mr. Bergrin (is also) on one million dollars cash bail in connection with his charges in New York state for money laundering and prostitution.”
On November 23, 2009, the AP reported that he plead “not guilty to bribery, drug, (and) prostitution charges.” If he’s released, “the safety of every single witness in this case will be in jeopardy.”
In response, defense attorneys called prosecution charges “exaggerated, unsupported, and completely, completely baseless and untrue.” On the contrary, “He has forged a career. And I’ll say it — I’ll say it as plainly as I can; it has been in so many ways an exemplary career. He has taken cases… that many lawyers, if not most lawyers, would run away from. He has defended people who most lawyers would not even want to know. And he has done it again and again with integrity. He has done it again and again with character.”
“He served with character and integrity in the US Army, where he achieved the rank of major. He acted with character and integrity when he served as an assistant district attorney in this county. And he acted again with integrity and character when he prosecuted cases as an assistant United Stated attorney in this district.”
“But not only that. He acted with integrity and character because he believed that any person charged with a crime of whatever nature and whatever kind, no matter how serious, no matter what the consequences, that he was a person who was willing to stand up.”
Yet prosecutors claim Bergrin “is really a murderer in disguise wearing the — wearing the garb of a lawyer. In many of these cases,” and a particular one in which “a witness was going to appear, and you know what, a witness was murdered in that case, and who was the lawyer? Paul Bergrin. And that’s the end of it. And from that, they want the Court to infer that somehow he was responsible for that murder.”
“Yes, he has represented murderers. Yes, he’s represented gang members. Yes, he’s represented killers. (But) that does not make him part of any gang” or complicit in their crimes. Mr. Bergrin “crossed no ethical line. He crossed no — or violated no penal code.”
The New York Times quoted government lawyers earlier saying that the integrity of wiretap/recorded conversations was in question, that “the tapes had not been properly dealt with, apparently (related to) a sealing problem,” creating a suspicion of tampering.
The prosecution has one witness in a very thin case based on bogus charges with no proof. The man he’s accused of wanting killed is in prison. “He was nowhere to be killed.” The entire case is based on fabrication and intimidation to suppress truths and convict lawyers who try to expose them.
On May 29, Bergrin was denied bail, despite strong arguments for his release. If convicted, he faces possible life imprisonment, perhaps the death penalty.
In about two dozen previous articles, this writer documented a consistent pattern of US prosecutorial injustice, misconduct, and abuse against Muslims; Black, environmental and animal rights activists; Latino immigrants; and lawyer Lynne Stewart for representing an unpopular client Department of Justice attorneys wanted to convict. All were innocent, except an environmental activist who plead guilty to a minor offense that at most deserved a reprimand and perhaps small fine, not seven years hard time he’s now serving in federal prison for trying to save the earth.
From known facts about his case, Bergrin threatened the powerful, so was framed to discredit and silence him. In defending the scapegoated soldiers, he performed heroically. Yet the media vilified him as a lawyer for mobsters, drug dealers, street gang members, rappers, and guilty US troops in stories like New York Times writer David Kocieniewski on May 20, 2009 headlining, “Lawyer’s Ways Spelled Murder, US Is Charging.”
Emphasizing DOJ charges, he convicted him in the court of public opinion, biased potential jurors for his scheduled 2010 trial, and left no doubt where the Times stands – guilty as charged as Heller’s astute Catch-22 quote above discerned.
Bergrin paid for his integrity – for wanting disturbing truths to come out to hold those responsible accountable under US and international law, not innocent soldiers forced to obey orders or face court-martials, dishonorable discharges, fines and imprisonments.
He’s now victimized and disbarred for doing his job, and in a November 24, 2009 letter to Mestrovic said: “This virtual nightmare has destroyed everything (that) I worked my heart and soul out for, including my family. What hurts me the most is I am not guilty and totally innocent…. I am (as) despondent as a human being could be and sincerely thank you for your friendship, love and concern.”
“Besides the evidence I uncovered on Operation Iron Triangle, Objection Murray and the Rules of Engagement, to kill every military aged male upon contact, I was about to change the course of history (in a press conference) that I had affirmative proof that President Bush, VP Cheney, Defense Secretary Rumsfeld, Assist. Secy. of (Defense) Wolfowitz, Carbone and White House Counsel, (Alberto) Gonzales (later US Attorney General) had lied, deliberately and intentionally when they denied knowledge of the torture techniques at Abu Ghraib.”
“If I had the torture memos, I would have compelled the highest levels of the government to testify at these Court-Martials, gone with a not guilty plea and exposed the hypocrisy. Additionally, Col. Pohl denied me calling these witnesses because the (government) alleged there was no nexus nor evidence in existence on the torture memos and techniques; we now know (they) existed and all the above had knowledge of… I could have reversed the convictions at Abu Ghraib and placed blame on the real offenders.”
“My life is in crisis and I don’t know where to turn… I really attempted to treat these soldiers and defend them like they were my own children.”
For that and threatening the powerful, Bergrin faces a possible life sentence if convicted in his 2010 trial. Until then, he’s imprisoned without bail under a system rewarding high crimes while targeting lawyers who try to expose them.