November 13, 2007 – 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.
The F.B.I. investigation into the shootings in Baghdad is still under way, but the findings, which indicate that the company’s employees recklessly used lethal force, are already under review by the Justice Department.
Prosecutors have yet to decide whether to seek indictments, and some officials have expressed pessimism that adequate criminal laws exist to enable them to charge any Blackwater employee with criminal wrongdoing. Spokesmen for the Justice Department and the F.B.I. declined to discuss the matter.
The case could be one of the first thorny issues to be decided by Michael B. Mukasey, who was sworn in as attorney general last week. He may be faced with a decision to turn down a prosecution on legal grounds at a time when a furor has erupted in Congress about the administration’s failure to hold security contractors accountable for their misdeeds.
Representative David E. Price, a North Carolina Democrat who has sponsored legislation to extend American criminal law to contractors serving overseas, said the Justice Department must hold someone accountable for the shootings.
“Just because there are deficiencies in the law, and there certainly are,” Mr. Price said, “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.”
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.
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.”
Among the 17 killings, three may have been justified under rules that allow lethal force to be used in response to an imminent threat, the F.B.I. agents have concluded. They concluded that Blackwater guards might have perceived a threat when they opened fire on a white Kia sedan that moved toward Nisour Square after traffic had been stopped for a Blackwater convoy of four armored vehicles.
Two people were killed in the car, Ahmed Haithem Ahmed and his mother, Mohassin, a physician. Relatives said they were on a family errand and posed no threat to the Blackwater convoy.
Investigators said Blackwater guards might have felt endangered by a third, and unidentified, Iraqi who was killed nearby. But the investigators determined that the subsequent shootings of 14 Iraqis, some of whom were shot while fleeing the scene, were unprovoked.
Under the firearms policy governing all State Department employees and contractors, lethal force may be used “only in response to an imminent threat of deadly force or serious physical injury against the individual, those under the protection of the individual or other individuals.”
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.
Anne E. Tyrrell, a Blackwater spokeswoman, said she would have no comment until the F.B.I. released its findings.
Although investigators are confident of their overall findings, they have been frustrated by problems with evidence that hampered their inquiry. 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.”
In addition, investigators did not have access to statements taken from Blackwater employees, who had given statements to State Department investigators on the condition that their statements would not be used in any criminal investigation like the one being conducted by the F.B.I.
An earlier case involving Blackwater points to the difficulty the Department of Justice may be facing in deciding whether and how to bring charges in relation to the Sept. 16 shootings. A Blackwater guard, Andrew J. Moonen, is the sole suspect in the shooting on Dec. 24 of a bodyguard to an Iraqi vice president.
Investigators have statements by witnesses, forensic evidence, the weapon involved and a detailed chronology of the events drawn up by military personnel and contractor employees.
But nearly 11 months later, no charges have been brought, and officials said a number of theories had been debated among prosecutors in Washington and Seattle without a resolution of how to proceed in the case.
Mr. Moonen’s lawyer, Stewart P. Riley of Seattle, said he had had no discussions about the case with federal prosecutors.
Some lawmakers and legal scholars said the Sept. 16 case dramatized the need to clarify the law governing private armed contractors in a war zone. Workers under contract to the Defense Department are subject to the Military Extraterritorial Jurisdiction Act, or MEJA, but many, including top State Department officials, contend that the law does not apply to companies like Blackwater that work under contract to other government agencies, including the State Department.
Representative Price’s bill would extend the MEJA legislation to all contractors operating in war zones. The bill passed the house 389 to 30 last month and is now before the Senate.
He said it cannot be applied retroactively to the Sept. 16 case, but he said that the guards who killed the Iraqis must be brought to justice, under the War Crimes Act or some other law.
Paul von Zielbauer contributed reporting from Camp Pendleton, Calif.