Prosecutors have built their case against the Raven 23 team members on the thinnest of legal principles, with forensic evidence so weak that they can't even say who allegedly killed whom in the September 2007 shootout at Nisoor Square in Baghdad.
One of those legal tenets is the idea that the Blackwater guards, who are hired by the State Department and not by the Defense Department, are actually operating in support of a DoD mission and therefore are liable under federal laws governing DoD.
Now, the Associated Press is reporting that the Obama administration is standing by a 2007 letter by Deputy Defense Secretary Gordon England, who wrote that the Blackwater contractors "were not engaged in employment in support of the DoD mission" and that consequently the Justice Department lacked jurisdiction to try the men.
Pentagon spokesman Chris Isleib tells AP that DoD's view is unchanged.
Congress had written the law to apply only to contractors in support of DoD missions, not State Department missions. When Blackwater became a politically partisan issue, lawmakers critical of the Bush Administration tried to bend the meaning of the law to make it apply to the State Department security contractors. Prosecutors, under pressure to appease the Iraqi government to try the men, used that same flawed logic.
According to AP, "Defense contractors can be prosecuted in US courts for crimes committed overseas, but because of a legal loophole, contractors for other agencies can face charges only if their work assignments supported the Defense Department. Blackwater, the largest security contractor in Iraq, works for the State Department. Five of its guards face manslaughter charges for a 2007 shooting that killed 17 Iraqis."
The defense team has provided evidence showing that their convoy was fired upon, and not even the prosecutors are attempting to prove who killed whom. Other reports say that a number of the Iraqi dead did not undergo autopsies prior to burial.