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Legal consequences of civilian war contractors

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This is interesting:

A year after Iraqi civilians and U.S. soldiers tore down the towering statue of Saddam Hussein in Baghdad’s Firdous Square, a few dozen American civilians at a U.S. military base in Iraq climbed into a row of camouflage tractor-trailers and awaited instructions. Earlier that morning, the drivers, employees of Houston-based Kellogg Brown & Root Inc. (KBR), had been told that the roads outside Camp Anaconda, about 70 miles north of Baghdad, were labeled Code Red — off limits. That wasn’t a big surprise. Local radio and Armed Forces television had been reporting for days that U.S. military units and civilian contractors were under heavy attack. Weeks earlier, four security guards working for Blackwater USA had been shot, burned, dismembered and strung from a bridge in Fallujah; that city was now in chaos. Still, here inside “the wire,” as the drivers called the well-guarded camp, civilian truckers counted on KBR for their safety.

Around 10 a.m., the KBR security adviser announced a change in status. The roads were now Code Amber, he said — open for traffic. If the men were concerned about the last-minute change, or worried about driving unarmored military vehicles instead of the white trucks they usually drove to distinguish them as civilians, there was nothing they could do about it: KBR employees must follow the instructions of their convoy commanders.

Things would only get stranger. As the trucks lined up at the gate to leave, the drivers were told that their destination had changed. Instead of Camp Webster, where they’d originally been assigned to go, they’d be delivering fuel to Baghdad International Airport. Most had never been to the airport before; some had never even been outside the secured camp. None knew the route or was given a map.

“A soldier drew a map with a stick in the sand, that’s all I saw,” recalls Edward Sanchez, an affable trucker from Silver City, N.M., who was driving for KBR that day. Ray Stannard, a trucker from El Paso, remembers it well. “They just said, ‘Follow the truck in front of you.'” That’s just what they did. One convoy had already been sent toward the airport by a different route. Another sent on the same route had turned around, though these drivers didn’t know why. Now it was their turn. It was late morning by the time the mile-long convoy of about 25 trucks drove out the gates of Camp Anaconda in a cloud of dust and headed west.

As they passed the broken-down shacks and rundown buildings along the freeway, it was eerily quiet. “It started out smooth going,” recalls Stannard, a lanky 49-year-old with a ruddy face and an old Marine Corps tattoo on his right forearm. Then, about 20 minutes into the trip, the scene changed. “We started seeing our trucks on fire,” he says, describing KBR tractor-trailers in flames along the road.

As they reached a stretch in the road where several overpasses cross the highway, “we saw women dropping what looked like buckets of cement on the trucks,” says Stannard. Then he heard the staccato racket of gunfire. “I heard Zimmerman [Tommy Zimmerman, another driver] on the radio, saying, ‘My truck is breaking down,’ and I could hear rounds popping off.” Next he heard Tommy Hamill, the convoy commander, say he’d been hit. “I knew we were in trouble now,” Stannard says.

Within seconds Stannard’s truck was under fire, too. So were the trucks in front of and behind him, the gunfire now steady. “We were taking so many rounds, they were hitting fuel tankers. Fuel was spilling out everywhere.”

Sanchez, a former Navy mechanic built like a wrestler, was driving the 14th truck in the convoy that day. “It was like spaghetti,” he says, describing how fuel was spurting in streams out of the bullet holes that riddled their tankers. “Bill Bradley [another driver] yelled for help twice. That was the last I ever heard from him.” Soon another driver was yelling that he was on fire, begging not to be left to die in Iraq. Calls for help over the radio were the last that Sanchez and Stannard heard from seven of the KBR drivers that day. Those screams, the sounds of the gunfire and the memory of watching fellow driver Steven Fisher bleed to death in the Humvee that rescued them still haunt them.

It was April 9, 2004 — Good Friday. In what came to be known as the Good Friday massacre, some 300 Iraqi insurgents attacked the KBR convoy for hours with mortar rounds, automatic gunfire, improvised explosive devices and rocket-propelled grenades. Six American drivers were killed, 14 were wounded and another remains missing. He is presumed dead, though his death has never been officially acknowledged by KBR.


Death in a war zone is nothing unusual. But the deaths of American civilians working for private companies contracting with the U.S. military is a relatively new phenomenon. The current war in Iraq has involved more outsourcing of what used to be military functions than any previous war in American history. More than 160,000 civilians (some American, many from other countries) now work to support the U.S. government in Iraq and Afghanistan. They do everything from guarding U.S. officials and dignitaries to trucking fuel, food and other supplies to military bases — jobs that used to be done by soldiers. More than 1,000 private civilian contractors (including 110 KBR employees) have been killed in Iraq, and another 13,000 have been wounded.

Employees of private military companies like KBR know going into it that driving in Iraq isn’t the same as hauling a rig through cornfields in Iowa. But when these men signed up for the job, which paid roughly $1,500 a week — about double what they were earning at home — they were promised that they wouldn’t be participating in military operations or driving in combat zones. They’d be in armored civilian cars or guarded by the U.S. military. Their safety, they were told, would not be compromised. In 2004, after the U.S. government had declared victory, recruiters were offering drivers an opportunity to “Work in Rebuilding Iraq and Earn $60,000 to $200,000 Per Year Guaranteed!” As one Internet advertisement promised: “Full 24 hour a day U.S. military protection will be in place to insure safety. With new heightened security you’ll be 100% safe.” A KBR manager later confirmed the promise to his staff: “There is not one thing that we do that is worth injury to an employee.”

Why and how those commitments to KBR’s employees apparently unraveled on April 9, 2004, is now the subject of a controversial and critically important suit. In May 2005 Ray Stannard and Edward Sanchez, along with seven other drivers who survived the massacre — and relatives of those who didn’t — sued KBR and its then-parent, Halliburton Co. (Kellogg Brown & Root was a subsidiary of Halliburton until last year, when it changed its name to KBR.) They’ve also sued the Cayman Islands-based subsidiary of Halliburton that hired them, as well as the recruiting companies that published the help-wanted advertisements. The plaintiffs claim that the drivers were fraudulently induced into believing they would not be sent into active combat zones, only to be sent out on a route where KBR knew the drivers were likely to be attacked.

“KBR had internal information that it was going to be attacked that day,” says Christina Fountain, a partner at Lopez McHugh in Newport Beach, Calif., who is representing the plaintiffs in the case, Fisher v. Halliburton/KBR. “This was a road that was in battle, in active combat, and Halliburton/KBR knew it,” adds co-counsel T. Scott Allen, a partner at Cruse, Scott, Henderson & Allen. He represents the plaintiffs from Houston, where the case was filed.

There is plenty of evidence to support the plaintiffs’ claims. But at this point, thanks to the arguments of KBR lawyers from McKenna Long & Aldridge, the facts are irrelevant, at least as a legal matter. In September 2006, shortly after KBR hired McKenna to take over the case from longtime KBR counsel Jones Day, the federal district court in Houston dismissed the case, declaring it nonjusticiable. McKenna partners David Kasanow and Raymond Biagini convinced the court that the case raises a political question beyond the competence of the federal judiciary.

The plaintiffs have appealed that decision to the 5th U.S. Circuit Court of Appeals. But if the district court’s decision stands, it will mean that the actions of virtually any military contractor working for the federal government could be deemed beyond the authority of the courts — and immune from American law.


Indeed, that’s the sort of argument that lawyers representing private military companies like KBR, CACI International Inc. and Blackwater are already making in courts across the country. As the war in Iraq and hostilities in Afghanistan leave a growing number of dead and wounded civilian employees, a new set of legal issues is confronting the lawyers who defend the contracting companies. “Issues that involve the intersection of contracting and military operations — contracting in a military, hot or active theater, where contractors are performing work or providing services that look a lot like what the military provides — that’s where it’s particularly interesting now,” says E. Sanderson Hoe, who heads McKenna’s government contracts group. “You have contractors providing security, carrying weapons, doing things the military also does. From a practitioner’s standpoint, that’s new for most of us.”

These issues may be new, but lawyers knew they would cause concern even back in 2004, just after the Good Friday massacre. Stannard, Sanchez and other survivors were sequestered in a converted meat locker at Camp Anaconda after the incident, instructed by KBR officials not to speak to the media about what had happened. Later, as they recovered from their injuries in a Kuwaiti hospital, some of the survivors, including Stannard, were told that KBR had arranged for them to receive a military medal of honor. There was only one catch: They would have to sign a form releasing the company and the military from liability for what had happened. Paragraph 9 of the document stated:

“I agree that in consideration for the application for a Defense of Freedom Medal on my behalf that on behalf of myself, my heirs, executors, administrators, assigns, and successors, I hereby release, acquit, and discharge and do hereby release, acquit, and discharge KBR, all KBR employees, the Military and any of their representatives … from any and all claims and any and all causes of action, of any kind or character, whether now known or unknown, I may have against any of them.”

For months, officials from Halliburton and KBR, as well as their lawyers from McKenna and Jones Day, declined to be interviewed for this article. It wasn’t until the day before it went to press that Kasanow agreed to comment on his firm’s legal arguments. Indeed, McKenna has taken pains to ensure that the facts of the case remain secret, both by seeking to dismiss the suit, thereby preventing further discovery, and by convincing the judge overseeing it to file many of the documents, deposition testimony and other evidence under seal, claiming that their release could jeopardize national security. The material remains under seal, even though, after reviewing the evidence, the U.S. Attorney’s Office and the U.S. Department of Defense decided that most of it did not involve state secrets or national security concerns and declined to intervene in the case. Still, the documents that are available reveal the bumpy road this case has taken and the careful strategy that McKenna’s lawyers have crafted in an attempt (only partly successful) to keep the facts of the incident and the question of government contractor liability hidden from public scrutiny.

Continue reading.

Written by Leisureguy

29 January 2008 at 2:29 pm

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