In November, the first glimpse into the conclusions of the FBI probe emerged in the New York Times, which reported that the federal agents had “found that at least 14 of the shootings were unjustified and violated deadly-force rules in effect for security contractors in Iraq.”160 The report added, “Investigators found no evidence to support assertions by Blackwater employees that they were fired upon by Iraqi civilians,” quoting one official as saying, “I wouldn’t call it a massacre, but to say it was unwarranted is an understatement.” A military investigator “said the F.B.I. was being generous to Blackwater in characterizing any of the killings as justifiable.” The military was clearly outraged at the shootings, and some officials believed it would have a blowback effect on U.S. soldiers. “It was absolutely tragic,” Maj. Gen. Joseph Fil, the Army’s top commander for Baghdad, told the Washington Post. “In the aftermath of these, everybody looks and says, ‘It’s the Americans.’ And that’s us. It’s horrible timing. It’s yet another challenge, another setback.”161 During this period, a chorus of voices rose against Blackwater from within the ranks of the military. The pay disparity between private contractors and official soldiers was hurting morale, and senior commanders complained that the misconduct of Blackwater and other private forces was damaging the U.S. “counterinsurgency” campaign. This critique was sounded from the highest levels of the military. In an unusually blunt comment a month after Nisour Square, Defense Secretary Robert Gates said the mission of many private security contractors was “at cross-purposes to our larger mission in Iraq,” adding that “in the objective of completing the mission of delivering a principal safely to a destination, just based on everything I’ve read and what our own team has reported, there have been instances where, to put it mildly, the Iraqis have been offended and not treated properly.”162
What was particularly troubling (aside from the loss of Iraqi civilian life) was that even if Blackwater were not so politically connected to the White House and even if there were a truly independent U.S. Justice Department and even if immunity had not been offered and even if there had been an aggressive investigation, it would not have been enough. When Secretary of State Condoleezza Rice dispatched a team to Baghdad, led by veteran diplomat Patrick Kennedy, to review the department’s private security force in the aftermath of Nisour Square, the team returned with the conclusion that it “is unaware of any basis for holding non-Department of Defense contractors [like Blackwater] accountable under US law.”163
While a fierce debate over the use of private forces raged in the United States, legal scholars debated what—if any—court could hold Blackwater and other mercenary forces accountable for their crimes in Iraq. Not only had the State Department’s immunity offerings early on in the Nisour Square investigation potentially compromised the chance of prosecution, as the Justice Department acknowledged in early 2008, but the bottom line was that Blackwater operated in a legal gray zone, seemingly outside the scope of both U.S. civilian and military law and immune from Iraqi law.164 While a federal grand jury was convened in late 2007 to investigate, serious questions about the potential for a successful prosecution abounded. Many legal analysts concluded that U.S. civilian law on contractors abroad covered only contractors working for the military—Blackwater worked for the State Department.
While the House voted shortly after Nisour Square to expand the law to apply to all contractors, it could not be applied retroactively and still had to clear the Senate. The Bush administration “strongly oppose[d]” the legislation, saying in a statement released the day after Prince appeared before Waxman’s committee that the law would have “intolerable consequences for crucial and necessary national security activities and operations.”165 A court-martial seemed unlikely and could possibly meet resistance from civil liberties advocates who would view it as a step toward applying military law to civilians (though some would argue that such a label should not apply to armed mercenaries). Washington was clear it would not hand over U.S. personnel to Iraqi courts, and the Bremer-era ban on Iraq prosecuting contractors remained in place. Some analysts believed the Justice Department would attempt to prosecute at least one Blackwater operative for Nisour Square—indeed, Slough was identified as being “at the center of the investigation”—as a token symbol of accountability. But because of the way the law governing contractors was phrased at the time of the killings, the possibility of failure was significant. Some legal experts argued that the shooters could be prosecuted for war crimes under U.S. law, but that would require not only political will from the Bush administration but also a de facto indictment of the whole system of privatized war, which seemed highly unlikely to happen. The possibility that private soldiers could face prosecution, particularly for war crimes, would also have presented a major disincentive for mercenary companies to work for the Bush administration. “There clearly is jurisdiction and a basis to act against them under the War Crimes Act,” said military law expert Scott Horton. “But the Bush administration doesn’t want to go there, doesn’t want to touch that. I think they’ve made that point clear.”166 The State Department’s acting Assistant Secretary of State for the Bureau of Diplomatic Security, Gregory Starr, admitted, “It might be the case that Blackwater can’t be held accountable” for the killings.167
Some of the Iraqi victims’ families and Nisour Square survivors did not want to wait for Congress and the Bush administration to resolve these questions and didn’t have faith justice would be done. So they took the only action they could—they sued Blackwater, not in Iraq but in Washington, D.C.
“War Crimes” and “Extra-judicial Killing”
Days after the shootings, some of the Iraqi survivors and victims’ families contacted local Iraqi human rights lawyers who worked with U.S. law firms that had filed cases against other Iraq War contractors for alleged abuses. Attorneys from the Center for Constitutional Rights and two other firms, led by attorney Susan Burke of Burke O’Neil, began interviewing survivors, witnesses, and victims’ families. CCR was no stranger to cases involving contractors’ crimes in Iraq, having filed a major lawsuit against some of the private forces who were among the alleged perpetrators of the torture and abuse at Abu Ghraib Prison. Burke spearheaded that case as well. “[The Nisour Square families] came to us because they know of our work representing the torture victims at Abu Ghraib, and they asked us whether it would be possible to try to get some form of justice, some form of accountability, against this rogue corporation,” Burke recalled.168