Today’s Must Read

It’s looking grim for Blackwater. Although the FBI hasn’t finished its investigation into the September 16 shootings at Nisour Square — in which 17 Iraqi civilians were killed — The New York Times reports that the company’s guards at the square, by and large, opened fire without provocation:

Federal agents investigating the Sept. 16 episode in which Blackwater security personnel shot and killed 17 Iraqi civilians have found that at least 14 of the shootings were unjustified and violated deadly-force rules in effect for security contractors in Iraq, according to civilian and military officials briefed on the case….

Investigators have concluded that as many as five of the company’s guards opened fire during the shootings, at least some with automatic weapons. Investigators have focused on one guard, identified as “turret gunner No. 3,” who fired a large number of rounds and was responsible for several fatalities.

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.

About the only bright spot for Blackwater: bureau officials appear inclined to give the guards the benefit of the doubt about the first round of shootings, in which Blackwater guards fired upon a white Kia sedan that didn’t heed a traffic officer’s order to stop at the square.

But so far, the FBI’s account of the shooting is mostly in line with that of the Iraqi government and the U.S. military. In front of Congress and in a recent PR blitz, Blackwater owner and CEO Erik Prince has insisted that Blackwater guards were under attack. “There was definitely incoming small arms fire from insurgents,” Prince told Wolf Blitzer last month. Blackwater has also consistently urged Congress, the press and the public to await the outcome of the FBI’s investigation before passing judgment on the company.

Blackwater may have an additional argument ready for the court of public opinion. In the same round of interviews, Prince said that determining culpability may ultimately be impossible, since the scene of the shooting wasn’t safe enough to conduct a “C.S.I.”-like forensic search. The FBI may not buy that. But investigators are “frustrated” with the condition of their potential crime scene, according to the Times:

Investigators who arrived more than two weeks after the shooting could not reconstruct the crime scene, a routine step in shooting inquiries in the United States.

Even the total number of fatalities remains uncertain because of the difficulty of piecing together what happened in a chaotic half-hour in a busy square. Moreover, investigators could not rely on videotapes or photographs of the scene, because they were unsure whether bodies or vehicles might have been moved.

Bodies of a number of victims could not be recovered. Metal shell casings recovered from the intersection could not be definitively tied to the shootings because, as one official described it, “The city is littered with brass.”

If the Justice Department decides to seek prosecution, watch the condition of Nisour Square become a key component of Blackwater’s defense.

That’s a big if, however. Remember that State Department investigators provided the Blackwater guards with immunity for their statements, meaning that prosecutors have the added hurdle of proving that they did not use the information gleaned from the statements in bringing the charges. That makes an unlikely prosecution all the more improbable. The department hasn’t prosecuted a single security contractor for any potentially criminal activity in Iraq — even behavior as egregious as getting drunk and shooting the bodyguard of an Iraqi dignitary at a Christmas party. New Attorney General Michael Mukasey would probably have to rely on the War Crimes Act to prosecute Blackwater, according to Rep. David Price (D-NC), who’s trying to create some legal regime for security contractors overseas. That’s a big test for Mukasey.