Federal agents investigating the Sept. 16 killing of 17 Iraqi civilians by operatives of the Blackwater security company have concluded that 14 were victims of unjustified and unprovoked shootings. Some died in a hail of bullets as they fled. The investigators also have rejected assertions by Blackwater that its forces were defending themselves, saying there is no evidence to support that claim.
This initial glimpse into the evidence uncovered by the FBI bolsters the Iraqi government's claim (made within hours of the shootings in Baghdad's Nisoor Square) that the killings were criminal, as well as the findings of a U.S. military investigation that called all 17 of the killings unjustified. But that raises a crucial and complicated question: Who will prosecute the killers?
The answer may be no one. That certainly seemed to be the view of veteran diplomat Patrick Kennedy, who recently reviewed the State Department's use of private security. Kennedy and his team came back from Baghdad concluding that they were "unaware of any basis for holding non-Department of Defense contractors accountable under U.S. law."
Although the FBI conclusions appear damning, each of the three potential avenues for prosecuting Blackwater have fatal flaws:
U.S. civilian law: The Military Extraterritorial Jurisdiction Act of 2000 provides for prosecution in federal court of U.S. contractors for crimes committed overseas. The problem is that this law only applies to contractors working for or directly accompanying the U.S. military. Blackwater works for the State Department in Iraq as "diplomatic security," which is separate from military operations. Legislation has been introduced that would expand the act to apply to all contractors, but not retroactively. The Justice Department might argue that the Blackwater guards were indeed accompanying the military, but courts could well throw out such a case.
U.S. military law: In late 2006, Sen. Lindsey Graham (R-S.C.) inserted an amendment in the Defense Authorization Act that places all U.S. contractors under the Uniform Code of Military Justice, the court-martial system. But this has not been tested, and the Department of Defense has shown no desire to use this option against any security contractors -- let alone ones who aren't working for the military. Facing a military prosecution, Blackwater could even get support from civil libertarians, who would see it as a creep toward applying military law to civilians.
Iraqi law: The Iraqi government wants to prosecute the Blackwater shooters in its courts, but that isn't going to happen. The day before L. Paul Bremer III ended his tenure as the head of the Coalition Provisional Authority in Iraq in June 2004, he issued Order 17. It grants all contractors sweeping immunity from prosecution in Iraqi courts. There is a provision that allows the U.S. to lift immunity in individual cases, but Washington would never hand over a U.S. citizen to an Iraqi court.
"These legal loopholes amount, in practice, to a license to kill with impunity," says Michael Ratner, president of the Center for Constitutional Rights, which is suing Blackwater for wrongful death and war crimes in federal court over the shootings. "There is no genuine deterrence to acting unlawfully."
Even if the Justice Department moves forward, the investigation was contaminated from the start. The State Department's initial report on the shooting was drafted by a Blackwater contractor on U.S. government stationery. Two weeks passed before the FBI was dispatched to investigate; for two weeks, the only people looking into this crime were from a non-law-enforcment agency, the State Department, which had potential culpability of its own.
Then there is this fact: The State Department inspector general, Howard Krongard, who previously has been accused of impeding investigations into Blackwater, has direct family ties to the company. His brother, A.B. "Buzzy" Krongard, former CIA executive director, this year joined Blackwater's advisory board as a paid consultant. While at the CIA, Krongard played a role in Blackwater's first soldier-for-hire contract in Afghanistan in 2002.
Late last month, it emerged that the State Department had granted "limited use immunity" to some Blackwater operatives involved in the shootings before taking their statements. The result? Some Blackwater agents reportedly have refused to answer FBI questions, and those statements cannot be used as evidence, nor can any charges be based on them.
The immunity-for-statements deal calls the State Department's motivation into question, says military law expert Scott Horton of Human Rights First. "It seems less to be to collect the facts than to immunize Blackwater and its employees." This makes prosecution in any venue difficult, if not impossible.