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, âThe city is littered with brass.â
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.