Will New AG Authorize Criminal Prosecution of Blackwater Employees?

The New York Times reported in an article dated November 13, 2007, that the FBI has concluded that the Blackwater employees who killed 17 civilians on September 16,
2007 were not fired upon by Iraqis before opening fire. Consequently, the FBI's report concludes that at least 14 of the Iraqis were killed without "just cause." Assuming that this report is true, the question becomes whether the Blackwater employees can be successfully prosecuted.

The reason why there is a question about whether the Blackwater employees can be prosecuted is explained by the following paragraph from the article:

"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."

The issue of whether to prosecute will be the call of the new Attorney General Michael B. Mukasey. Prosecutors have an ethical obligation not to bring charges that they don't believe can be successfully prosecuted. Thus, the newly confirmed AG could find himself in a "damned if you do, damned if you don't" situation. Given the media attention that this event has generated, and given the reported anger in Iraq at the actions of private security contractors like Blackwater, our bet is that he authorizes a criminal prosecution. We wouldn't bet the family farm on it, though, given the fact that the Bush Administration doesn't seem to have a very high regard for the rule of law.