- 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 titled, "Predatory
Lenders' Partner in Crime: How the Bush Administration Stopped the States
From Stepping In to Help Consumers," 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,
- 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
- "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
- 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
- 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
- "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
- 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
- -- 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
- 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
- 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
- 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
- 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
- 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
- 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
- "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
- 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
- "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.
- Stephen Lendman is a Research Associate of the Centre
for Research on Globalization. He lives in Chicago and can be reached at <mailto:email@example.com>firstname.lastname@example.org.
- Also visit his blog site at sjlendman.blogspot.com and
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