From the moment the Blackwater shooting scandal first broke, legal experts have debated whether U.S. civilian contractors can stand trial for crimes they are accused of committing in Iraq. Now the Justice Department is examining U.S. laws and how they might apply to the incident.
Details of the Blackwater shooting in September are achingly familiar by now. A convoy of Blackwater vehicles entered a Baghdad traffic circle on Sept. 16 and, a short time later, shots rang out.
Blackwater has said its guards began firing into oncoming cars in self-defense. A subsequent FBI inquiry reportedly determined that the shootout was unprovoked. What everyone agrees on is that 17 Iraqis died in the incident.
Philadelphia attorney Susan Burke filed a civil suit this week against Blackwater on behalf of five families who lost relatives in the incident and two people who actually survived the shooting.
"We have not found anyone, anyone at all, who has come forward to say there were any shots fired or any kind of threat made upon these Blackwater shooters," she said.
Burke's name may seem familiar. She was the lead attorney in another notable case. She has brought a civil suit against civilian contractors who took part in the prisoner abuse at Abu Ghraib. She says the cases strike many of the same chords.
"These cases pose a very important issue for us as Americans," she said. "When a company makes millions of dollars in providing services to the American government, is the company nonetheless still responsible for ensuring its workers do what they are supposed to?"
The lawsuit appears to have shaken loose some details about that September day. One in particular — that the Blackwater guards in the square weren't supposed to be there at all — has raised some intriguing issues for a possible court case.
According to Burke and another government official familiar with the case, a dispatcher may have told the Blackwater contingent to stay with the State Department official they were guarding.
"That operation center had told the Blackwater teams, these TFT teams, to stay put," Burke said. "So at the time they were in the square, they were actually disobeying the instructions from the government."
Blackwater declined to comment on that part of the case.
Applying U.S. Law
The more immediate challenge for Justice Department officials and prosecutors has been to find an American law that applies to the parameters of this incident.
Bob Chadwell, a former assistant U.S. attorney in Seattle, says prosecuting the Blackwater guards isn't a slam dunk.
"They are going to have to shoehorn the facts into a statute that wasn't designed to address that concern, and that is a problem," he said, referring to Justice Department lawyers. "If the law isn't meant to address something, it is sometimes like trying to pound a square peg into a round hole. Sometimes it just can't be done."
Legal experts say the Justice Department is likely to shoehorn the case into one of two American laws. One applies to people employed by or accompanying U.S. armed forces overseas. If they commit a crime that would result in more than a year in prison had it been committed in the U.S., they could fall under U.S. jurisdiction.
Others say prosecutors could use a war crimes statute related to the Geneva Conventions. It allows U.S. courts to have jurisdiction over someone who intentionally kills one or more people who aren't taking part in hostilities.
Though, to refer the case to a federal grand jury, prosecutors don't have to be specific.
"Typically, prosecutors will give grand jurors some idea of the types of offenses they are investigating," said David Laufman, a former Justice Department official and federal prosecutor. "But they need not commit themselves to specific statutes that were violated until they reach the point of presenting an indictment to the grand jury."
So far, the Justice Department has been tight-lipped about the crimes it believes the Blackwater guards might have committed. A federal grand jury is hearing from witnesses this week, and the Justice Department has said it could be months before it seeks an actual indictment.