Judge in Norfolk ponders sending men to Afghanistan

NORFOLK

A federal judge is considering sending two former Blackwater security workers charged with murder back to Afghanistan to confront a key witness who refuses to come to America to testify in the case.

Federal prosecutors are balking at the idea, citing logistical and safety concerns, but U.S. District Judge Robert G. Doumar said the constitutional right to confront witnesses might trump those concerns.

"The defendants have a right to confront witnesses," Doumar said at a hearing Tuesday. "You're face to face. That's what confronting is."

The government has suggested setting up a video feed with the witness in Afghanistan and the defendants here, with their lawyers able to ask questions and conduct cross examination.

The former Blackwater workers, Christopher Drotleff of Virginia Beach and Justin Cannon of Corpus Christi, Texas, are charged with killing two Afghan citizens and wounding a third after a traffic accident in Kabul in May 2009.

The government contends the two left an Army base without permission and had been drinking that day. Drotleff and Cannon say they fired in self-defense when the Afghans charged at them in a vehicle.

The government intends to fly in numerous Afghan witnesses. Dr. Mohammad Hassan Sahibi, who operated on one of the victims who was shot in the head, had initially agreed to come here for the September trial and testify that the victim did indeed die from the head wound.

Federal prosecutors informed the court last week that Sahibi now refuses to come. Sahibi is the only neurosurgeon in Kabul. He told the court that his leaving, even for a few days, "would deprive his patients of needed medical care and treatment that only he can provide," the government said in a court filing.

Sahibi would be the only witness able to testify to an official cause of death for that one victim. The government cannot force a foreign national to come here to testify.

The defendants have refused to waive their right to confront Sahibi in person, as required by the Sixth Amendment to the Constitution.

"The Supreme Court has told us over and over again that the confrontation clause means face to face, in person," assistant federal public defender Larry Dash, one of Cannon's lawyers, told Doumar.

No one could estimate the cost of such a trip, but Dash insisted it would be at the government's expense.

"The government doesn't care about expenses," Doumar quipped.

Robert P. McGovern, a Department of Justice prosecutor, told the judge it would be "impractical and extremely dangerous to move them into an active war zone." In addition, McGovern said, the Afghan government could conceivably seize Drotleff and Cannon as soon as they step off the airplane and prosecute them in Kabul. He argued that a video-taped deposition would be allowed under federal rules and would satisfy the Sixth Amendment as long as the defendants on this end were able to ask questions of the doctor.

But Doumar said he wasn't convinced of the difficulties in sending the defendants to Afghanistan. He ordered the government to notify him by Friday of the specific security, safety and logistical obstacles. He would make a ruling then.