5th Circuit to Weigh Jurisdiction Over Contractors in Iraq

Publisher Name: 
The American Lawyer

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.

IRAQ WAR SETS RECORD FOR OUTSOURCING OF MILITARY FUNCTIONS

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.

NEW SET OF LEGAL ISSUES FOR CONTRACTORS' DEFENSE ATTORNEYS

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.

The case didn't start out so well for KBR. The plaintiffs, represented
by Fountain and Allen, filed their first complaint in state court in
Houston in April 2005. Allen, a longtime Texan who usually defends
doctors and hospitals in medical malpractice cases, says he was brought
into the case by Ramon Lopez of Lopez McHugh, whom he'd opposed in a
previous matter. (Allen now calls the KBR litigation "the single most
significant case I've ever worked on.") Jones Day, representing
Halliburton and KBR, quickly had the case removed to federal district
court in Houston, where it was assigned to Judge Nancy Atlas, a 1995
Clinton appointee with a reputation for fairness and efficiency.

Within weeks, the Jones Day team, led by employment partner Katie
Colopy, filed a motion to dismiss, claiming the employees' case was
barred by the Defense Base Act and the Federal Tort Claims Act.
The firm argued that the DBA, a sort of workers' compensation program
for employees of government contractors injured on the job, doesn't
allow employees to sue their employers for injuries. In addition, the
firm claimed that the FTCA's combatant activities exception immunizes
the government and its contractors from tort claims arising out of
injuries in combat.

In a written opinion filed July 1, 2005, Atlas rejected both of Jones
Day's arguments. She reasoned that although the DBA normally provides
the exclusive remedy for injured employees on a U.S. military base, it
does not apply where, as here, the employees claim the injury was
intentional. In the Fisher
case, the plaintiffs attorneys had carefully crafted their claims to
allege that KBR knowingly sent them out as a decoy convoy, intending
for them to be assaulted by insurgents. (They also claim KBR
intentionally sent them out needlessly, in order to charge the
government for the unnecessary shipment, since under its cost-plus
contract with the government, KBR made a profit on every dollar it
spent.) Therefore, Atlas ruled, the DBA did not bar the plaintiffs'
claims.

Neither did the FTCA. Although the combatant activities exception means
that the United States itself can't be sued for injuries arising out of
combatant activities of its military forces, that immunity only extends
to private military contractors in a few rare exceptions. None of those
enumerated by Jones Day applied in this case, Atlas ruled. Jones Day's
subsequent motion for reconsideration was denied.

Nine months after Atlas' decision, a new team of KBR lawyers appeared
before her. Two McKenna partners, joined by an Assistant U.S. Attorney
for Houston, and by conference call, a Department of Defense lawyer,
argued that discovery in the case should be halted until the government
had an opportunity to review the documents and vet the testimony that
might be elicited. Atlas agreed to stall the case temporarily but
refused to dismiss it. She made clear her irritation that KBR's lawyers
were attempting this argument almost a year after the case had been
filed.

However, the judge's view would soon become irrelevant. On May 15,
2006, the case was transferred from Atlas to a newly appointed federal
district court judge, Gray Miller. (According to the court order, this
was a random reassignment due to the appointment of a new judge.)
Miller, a former police officer, was a partner at Houston's Fulbright
& Jaworski and a contributor to George W. Bush's presidential
campaign before being appointed to the federal bench.

MOTION TO DISMISS UNDER POLITICAL QUESTION DOCTRINE

The McKenna lawyers saw an opportunity. On June 30 they made a new
motion to dismiss the case, repeating some of Jones Day's arguments but
adding a new twist. This time KBR's lawyers claimed that the case
should be dismissed under the political question doctrine, a
discretionary device that allows the court to avoid deciding questions
it believes are best left to other branches of government. In their
motion, McKenna lawyers claimed that judging military contractors would
require judging the military that hired them, and that the conduct of
the military should be judged not by the courts but by the president
and Congress. As Kasanow puts it: "If a lawsuit inevitably would cause
the court to have to trespass into an area that's reserved exclusively
for executive branch discretion, the court must decline jurisdiction."

Miller seized on that argument. In September 2006, he dismissed the case,
asserting that there would be no way to "try a case set on a
battlefield during wartime without an impermissible intrusion into
powers expressly granted to the executive by the Constitution." Ruled
Miller: "Sometimes, the law is that the judicial department has no
business entertaining the claim of unlawfulness."

It was a huge victory for McKenna and KBR. But it was a controversial
decision that some experts think was wrong on the law. Although
consistent with some recent federal opinions in other Texas cases
involving KBR, it clashes with several others around the country. The
plaintiffs have appealed.

Miller's decision exhibits "very weak reasoning," says Laura Dickinson,
a professor at the University of Connecticut School of Law and an
expert on the law governing private military contractors. "Obviously
there are certain matters that are nonjusticiable, but simply because
an act took place in a contingency operation doesn't mean the court
can't decide a claim," she says. "That alone should not be the basis
for assertion of the political question doctrine."

In McMahon v. Presidential Airways,
a case brought by the survivors of U.S. soldiers killed in a plane
owned by a subsidiary of the private military firm Blackwater USA, the
11th Circuit in October rejected a similar political question doctrine
argument. The appellate court decided that the doctrine would only
apply if the case required the court to directly examine a decision by
the military. Even though Presidential Airways was operating in
Afghanistan for the military and transporting U.S. soldiers, the court
ruled that the company might have had enough control of its own
operations that judging its actions would not require passing judgment
on military decision making.

That's exactly the plaintiffs' argument in the KBR case. "None of it is a political question," Allen says.

But Crowell & Moring partner David Hammond disagrees. He represents
government contractors and heads the General Counsels Committee for the
International Peace Operations Association, an industry group for
private security firms.

"Anytime a contractor is sued in a factual circumstance where the
military is involved and has some responsibility and provision, then I
think the political question doctrine will be the frontline defense,"
he says, "I think the case was correctly decided." In fact, he says,
the political question defense is particularly strong in the Fisher
case because the Army was supposed to provide security for the KBR
convoys. "Anytime you have the military having responsibility for
security and somebody gets injured or killed from an enemy attack, it
will always implicate whether the military provided sufficient
security."

The Fisher plaintiffs argue that under its contract
with the Department of Defense and promises made to its employees, KBR
had the authority to refuse to send out convoys based on its assessment
of the danger involved. Even though the military provided military
escorts for civilian convoys, Fountain says, "the evidence before the
judge in our case showed that the military was not in control of these
drivers."

Allen, too, makes this point. "It is Halliburton/KBR, not the Army, who
has the authority -- and more importantly, the responsibility -- to
ensure that their employees do not drive trucks in areas of known
combat," he told a congressional committee investigating the incident
in September 2006.

Indeed, KBR employed security specialists specifically to assess route
dangers. As Halliburton spokesperson Beverly Scippa indicated in an
e-mail sent in March 2005 to Pratap Chatterjee, a freelance journalist
who operates a Web site called CorpWatch: "KBR does have the right to
refuse a mission," the e-mail says, "and because KBR's primary concern
is for the safety and security of all personnel, we have exercised that
right on numerous occasions, both before and after April 9 [2004]."
After the Good Friday massacre, KBR canceled all convoys for several
days.

Kasanow, however, says the military was in charge of convoy security.
"The Army declaration makes clear that the military decides everything
and is responsible for everything," he says, referring to a document
filed with the court under seal. "Notwithstanding what individual KBR
employees or even KBR [management's] view of the world was, it has
nothing to do with KBR's contractual responsibility and who's
responsible for what."

On behalf of the plaintiffs, Fountain counters that if the case was
likely to intrude on military matters, the U.S. Department of Justice,
which had appeared with McKenna asking to review the evidence, would
have filed an amicus brief making that argument. "Instead, the Justice
Department, after seeing the evidence, filed a document saying [it]
will not be filing an amicus brief," she says. "We believe that after
[it] saw the evidence, it did not want to go on record as supporting
KBR's position because the evidence demonstrates that this was not a
military operation." (The Justice Department declined to comment for
this article other than to say it has no current involvement in the
case.)

Although McKenna has so far succeeded in getting the case dismissed and
keeping much of the evidence under wraps, some facts have trickled out.
Last year, responding to a request from the House Oversight Committee,
which was investigating contracting abuses in Iraq, Allen and several
former KBR employees testified about their experiences.

Sean Larvenz, a former KBR driver, was commanding a different convoy in
the same area on April 9, 2004. He described how he'd been instructed
to lead his convoy past Baghdad International Airport toward Camp
Anaconda. As he approached the area surrounding the airport shortly
after 9 a.m., he testified, he saw and heard on his radio about "heavy
insurgent attacks" at the main supply route junction -- the same place
where the drivers in the Fisher case were attacked. He said he immediately informed KBR of the attacks, turned his convoy around, and returned to the airport.

Larvenz testified that KBR always had access to current information
about route conditions through its satellite-linked computer system,
which is monitored constantly by KBR's security team. Despite warnings
from him and others, he said, KBR sent the convoy with Stannard,
Sanchez and the rest from Camp Anaconda toward the airport.
"Predictably," he added, "they too came under heavy insurgent attack,
and seven KBR/Halliburton employees unnecessarily lost their lives."

Sanchez, too, testified before the committee. He recounted that when he
and the other survivors finally arrived at the airport after the
hours-long attack, a KBR convoy commander there said that "he could not
believe that we had been sent down that road, since he was attacked on
the same road earlier that day and sent word to KBR/Halliburton to not
send anyone down that road due to the hostilities." Sanchez added that
he also learned when he arrived that the fuel his convoy was carrying
wasn't needed. The fuel bags at the airport were already full.

DEPOSITIONS SAY KBR RECEIVED REPEATED WARNINGS

The unprotected portions of depositions from other former KBR employees
confirm that KBR received repeated warnings about the danger that day.
In fact, every convoy KBR sent out along that supply route that morning
had been attacked, says Allen, a point that is confirmed by depositions
from KBR employees. The plaintiffs and their lawyers also say they have
evidence of communications among KBR personnel that are under seal
revealing that KBR security advisers argued with managers about whether
to send the Hamill convoy out. Security advisers repeatedly warned
their superiors that if the men were sent out, they could be killed.

"When I saw some of the evidence in black and white, that's when I
really knew they committed a crime. The evidence I read, that other
convoy commanders knew other people had been hit, and they knew they
could get in trouble for sending us out," says Stannard, looking down
and fingering the silver bracelet he wears engraved with the name of
Timothy Bell, the driver who disappeared that day and is still missing.
"That's when I knew -- these people are murderers." Stannard suffered a
broken arm and was shot in the leg during the assault.

Not everyone who was there that day concurs. Hamill, the convoy
commander, was captured by insurgents that day and held hostage for
more than three weeks before escaping. Hamill stayed on the payroll for
KBR, which occasionally shuttled him from his home in Macon, Miss., to
Houston to tell new recruits about his experiences. He says he doesn't
blame KBR for what happened. In fact, he's applied to work for the
company again in Iraq. "I'm a little old-fashioned and old-school," he
says in a heavy southern drawl. "We're in a war. Sometimes things don't
go as planned. Sometimes you just have to deal with it." (Hamill later
wrote a book about his experience.)

Increasingly, private contractors who aren't trained to work in
battlegrounds are paying the price. But whether their employers will
ultimately be held accountable for their own actions will depend on the
circumstances, on their lawyers, and in some cases, on the judge.

Take, for example, a case filed in Washington, D.C., against military
contractors Titan Corp. and CACI. The plaintiffs are hundreds of
prisoners at Iraq's Abu Ghraib prison, where the U.S. military in 2004
admitted that detainees had been abused, assaulted and humiliated. The
plaintiffs in Saleh et al. v. Titan et al.
claim that employees of the companies -- which provide interpreters and
interrogators for the Defense Department -- tortured, raped and killed
prisoners in 2003 and 2004. In November, the district court dismissed
the case against Titan, which provided the translators, concluding that
the contractors were under the exclusive control of the military chain
of command.

But the court refused to dismiss the charges against CACI, which
provided interrogators accused of torture. Based on the facts produced
so far, the court said, CACI interrogators appeared to be answering to
two masters -- the military and CACI supervisors. If the supervisors
encouraged the torture or had the authority to stop it but didn't, the
company could be liable. That sort of fact-specific analysis is
strikingly different than the one applied in the Fisher
case, where Miller appears to have assumed that because KBR was working
for the Defense Department, the court cannot judge the company's
actions without also judging the conduct of the U.S. military.

As more cases arise out of the war in Iraq and at times yield
conflicting rulings, the question of when and if private military
contractors can ever be held liable in civil suits for their actions
may ultimately reach the U.S. Supreme Court. In the meantime, the legal
uncertainties will continue to keep lawyers busy. "We'd hope that
sooner or later, the war in Iraq will cool down," says Kasanow, who
adds that he now spends about 80 percent of his time on Iraq-related
tort cases. "But wherever the next war will be, it's going to be the
same thing. This is an issue that's not going to go away."


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