Jeremy Scahill - Blackwater

In one of its few public statements on the suit, Blackwater spokesperson Chris Bertelli said, “Our thoughts and prayers were with them and their families then and are with them now…. Blackwater hopes that the honor and dignity of our fallen comrades are not diminished by the use of the legal process.” 96Katy Helvenston-Wettengel called that “total BS in my opinion,” and said that the families decided to sue only after being stonewalled, misled, and lied to by the company. “Blackwater seems to understand money. That’s the only thing they understand,” she said. “They have no values, they have no morals. They’re whores. They’re the whores of war.”

After its filing in January 2005, the case moved slowly through the legal system and sparked various battles over jurisdiction. From the start, Blackwater was represented by some of the most influential and well-connected lawyers and firms in the United States. Its original lawyer on the Fallujah case was Fred Fielding, President Reagan’s former counsel (among Fielding’s assistants in that post was future Chief Justice John Roberts). Fielding had also served as a top lawyer under President Nixon and was a member of the 9/11 Commission. In an indication of how deep Fielding’s connections ran, in early 2007 President Bush named him as his White House counsel, replacing Harriet Miers. Blackwater has also been represented in the case by Greenberg Traurig, the influential D.C. law firm that once employed disgraced lobbyist Jack Abramoff. The lawyers for the families charged that after the suit was filed, Blackwater attempted to stonewall the process. 97While some of that may have been legitimate defense tactics, the lawyers alleged that Blackwater prevented court-ordered depositions from taking place, including taking steps to prevent a key witness from testifying: John Potter, the man who allegedly blew the whistle on the removal of the word “armored” from the subcontract, whom the suit alleged was subsequently removed from his position. 98

Attorney Marc Miles said that shortly after the suit was filed, he asked the court in North Carolina for an expedited order to depose John Potter. The deposition was set for January 28, 2005, and Miles was to fly to Alaska, where he said the Potters were living. But three days before the deposition, Miles alleged, “Blackwater hired Potter up, flew him to Washington, where it’s my understanding he met with Blackwater representatives and their lawyers. [Blackwater] then flew him to Jordan for ultimate deployment in the Middle East.” Miles charged that Blackwater “concealed a material witness by hiring him and sending him out of the country.” Miles said Blackwater subsequently attempted to have Potter’s deposition order dissolved, but a federal court said no. In testimony before Congress in June 2006, Blackwater’s Chris Taylor said, “I don’t believe John Potter is in our employ right now.” 99

The Potter saga took another twist in November 2006 when Miles discovered Potter was back in the United States. After reaching Potter on the phone in his hometown in Alaska, Miles filed papers with the court seeking once again to depose him, sparking a rapid and forceful response from Blackwater. In its filing opposing the deposition, Blackwater argued that the “case involves issues of national security and classified information involving the United States military operations in Iraq” and that “any testimony [Potter] would give would necessarily involve the disclosure of classified information.” 100Miles and his colleagues responded that Blackwater’s filing “reads like a good spy novel” with “claims of ‘classified’ information, state secrets and threats to national security.” 101In reality, they argued, the “Blackwater contractors were not acting as covert operatives for the CIA, but instead were working under a contract with a foreign hotel company to guard kitchen equipment.” National security and espionage, they asserted, “have nothing to do with this case.” In an indication of the significance of the lawsuit and, more significant, Blackwater’s pull with the government, the U.S. Attorney General’s office filed an opposition to the deposition of Potter, asking that—at a minimum—it be delayed so the government could review Potter’s alleged possession of classified information or documents. The U.S. attorney cited a need to “protect the National Security interests of the United States.” 102The U.S. Army’s chief litigator also filed a sworn declaration to “protect from improper disclosure any sensitive and properly classified information to which Mr. Potter may have been given access as a Government contractor.” 103What was remarkable was how quickly Blackwater was able to mobilize the government and military to go to bat for it—the day after Christmas—and help stop, at least for the moment, the deposition of a potentially crucial witness from going ahead.

The families have all maintained that their interest in suing Blackwater was not money but accountability. “There’s not enough money in the world that can pay for my Jerry. There’s not enough money that anyone can give me,” said Danica Zovko. “If they made some rules and if they were obligated and if they treated those lives of those people the same way that I have to treat metal on the cars when I work for the city of Cleveland. It seems that there’s more laws and rules made about how to fix a car than there is about a life. There’s no amount of money that can do anything. It doesn’t exist to pay for the death of my son. They’re very, very foolish if they think that’s an answer.”

In the months after the suit was filed, Blackwater did not offer a rebuttal to the specific allegations made by the families, though the company denied in general that they were valid. Instead, Blackwater has argued that what is at stake in this case is nothing less than the ability of the President of the United States to conduct foreign policy as Commander in Chief of the armed forces. The company’s lawyers argued that Blackwater’s private soldiers have been recognized by the Pentagon as an essential part of the U.S. “Total Force,” constituting the nation’s “warfighting capability and capacity… in thousands of locations around the world, performing a vast array of duties to accomplish critical missions” 104—and allowing Blackwater to be sued for deaths in the war zone would be to attack the sovereignty of the Commander in Chief. “[T]he constitutional separation of powers… preclude[s] judicial intrusion into the manner in which the contractor component of the American military deployment in Iraq is trained, armed, and, deployed” by the President, Blackwater argued in one of its court filings. 105This argument, if successful, could have the added benefit of preemptively immunizing Blackwater from any liability when deploying its forces in U.S. war zones.

The company fought to have the case dismissed on grounds that because Blackwater is servicing U.S. military operations, it cannot be sued for workers’ deaths or injuries, and that all liability lies with the government. In its motion to dismiss the case in federal court, Blackwater argued that the families of the four men killed in Fallujah were entitled only to government insurance payments. Indeed, after the ambush, the families’ lawyers alleged, the company moved swiftly to help the families apply for benefits under the federal Defense Base Act (DBA), government insurance that covers some contractors working in support of U.S. military operations. In its court filings in the Fallujah case, Blackwater asked the courts to recognize the DBA as the sole source of compensation for the men killed at Fallujah. Under the DBA, the maximum death benefits available to the families of the contractors was limited to $4,123.12 a month. 106“What Blackwater is trying to do is to sweep all of their wrongful conduct into the Defense Base Act,” said attorney Miles. “What they’re trying to do is to say, ‘Look—we can do anything we want and not be held accountable. We can send our men out to die so that we can pad our bottom line, and if anybody comes back at us, we have insurance.’ It’s essentially insurance to kill.” 107