According to The New York Times, FBI investigators have concluded that at least 14 of the 17 Iraqi civilians killed by Blackwater guards at Baghdad's Nisour Square on September 16 died as a result of unjustified shootings:
Investigators found no evidence to support assertions by Blackwater employees that they were fired upon by Iraqi civilians. That finding sharply contradicts initial assertions by Blackwater officials, who said that company employees fired in self-defense and that three company vehicles were damaged by gunfire.
Government officials said the shooting occurred when security guards fired in response to gunfire by other members of their unit in the mistaken belief that they were under attack. One official said, "I wouldn't call it a massacre, but to say it was unwarranted is an understatement."
The FBI agents found that three of the fatal shootings may have been justified by a fear of attack (a fear that in each case proved to be mistaken). By contrast, the Times notes, "A separate military review of the Sept. 16 shootings concluded that all of the killings were unjustified and potentially criminal. One of the military investigators said the F.B.I. was being generous to Blackwater in characterizing any of the killings as justifiable."
The problem now is that it's not clear what law can be used to prosecute the Blackwater guards. The U.S. government has exempted American personnel from Iraqi law, and the Military Extraterritorial Jurisdiction Act (MEJA) applies only to Defense Department contractors, while the Blackwater guards were working for the State Department. Nearly a year after he shot and killed a bodyguard for an Iraqi vice president in a drunken rage, another Blackwater guard still has not been charged in the homicide because prosecutors can't settle on a satisfactory legal approach. In this light, the comments of Rep. David E. Price (D-N.C.), who has introduced legislation that would extend MEJA's coverage to all U.S. contractors operating in war zones, are a bit puzzling:
Just because there are deficiencies in the law, and there certainly are, that can't serve as an excuse for criminal actions like this to be unpunished. I hope the new attorney general makes this case a top priority. He needs to announce to the American people and the world that we uphold the rule of law and we intend to pursue this.
Among other things, however, the rule of law means that Price's bill, which was overwhelmingly approved by the House last month and is being considered by the Senate, can't be applied retroactively. And if the "deficiencies" in current statutes are so severe that prosecutors can't figure out how to charge State Department contractors who have committed criminal homicides in Iraq, the rule of law could require letting them go. In this case what the rule of law demands may be different from what justice demands.
Addendum: One possible approach is to charge the Blackwater guards under the War Crimes Act, which applies to U.S. nationals (not just military personnel) throughout the world and covers various violations of international agreements laying out the rules of war. The question then would be whether the recklessness seen in Nisour Square constitutes a war crime.