Jeremy Scahill - Blackwater

Blackwater’s primary argument, however, centered around what it portrayed as the bigger-picture ramifications for the future of U.S. war-fighting. “The question whether contractors may be sued, in any court, for war casualties while the military services may not… could determine whether the President, as Commander-in-Chief, will be able to deploy the Total Force decades into the future,” Blackwater argued in an appellate brief filed October 31, 2005. 108In a subsequent filing two months later, Blackwater cited Paul Bremer’s Order 17—which officially immunized contractors in Iraq—arguing that since the order “reflects a foreign policy decision made or at least supported by the United States,” Blackwater should be “immune from the claims stated” in the lawsuit. 109The company’s lawyers asserted that allowing the case to proceed against Blackwater could threaten the nation’s war-fighting capacity: “In order for responsible federal contractors to accompany the U.S. Armed Forces on the battlefield, it is essential that their immunity from liability for casualties be federally protected and uniformly upheld by federal courts. Nothing could be more destructive of the all-volunteer, Total Force concept underlying U.S. military manpower doctrine than to expose the private components to the tort liability systems of fifty states, transported overseas to foreign battlefields…. How the President oversees and commands these military operations, including his decisions through the chain of command concerning the training, deployment, armament, missions, composition, planning, analysis, management and supervision of private military contractors and their missions, falls outside the role of federal—and perforce state—Courts.” 110

Blackwater argued that the courts could not interfere in its operations because they would be essentially interfering in the functioning of the military, something prohibited by the “political question doctrine,” which “is one of the sets of principles that safeguard from judicial inquiry decisions made by civilian political leaders through the military chain of command, including, in this case, decisions to hire contractors to protect military supply lines from enemy attack.” 111In Fallujah, Blackwater argued, its men “were performing a classic military function—providing an armed escort for a supply convoy under orders to reach an Army base—with an authorization from the Office of the Secretary of Defense.” 112Because of this, Blackwater argued, it should be immune from any liability: “Any other result would amount to judicial intrusion into the President’s ability to deploy a Total Force that includes contractors.” 113

In an indication of how great other war contractors viewed the stakes in the Fallujah lawsuit, KBR—the Pentagon’s largest contractor in Iraq, with revenues from its work there totaling $16.1 billion 114—filed an amicus curiae brief in support of Blackwater in September 2006. In filing the brief, KBR identified itself as “the Department of Defense’s largest civilian provider of worldwide ‘Stability Operations’ logistical support services.” 115KBR backed up Blackwater’s Total Force argument, asserting that the purpose of the LOGCAP program “is to facilitate Stability Operations by integrating military logistical support contractors like KBR into the US military’s Total Force. KBR functions as a ‘force multiplier’ by performing mission-critical services, such as the driving of military supply convoys. Such services formerly were provided only by uniformed military personnel, but in every respect continue to operate under the direction and control of U.S. military commanders.” 116

From the start, the Blackwater lawsuit was viewed as a precedent-setting case on the role of and legal framework governing private forces in U.S. war zones. Blackwater enlisted no fewer than five powerhouse law firms to assist in its efforts to have the case dismissed or moved to federal court. 117Lawyers for the four families believed they would have a more favorable playing field in state court, where there was no cap on damages and the families would not need a unanimous decision to win. 118In October 2006, Blackwater hired one of the nation’s heaviest-hitting lawyers to represent it—Kenneth Starr, the independent counsel in the 1999 impeachment of President Bill Clinton over the Monica Lewinsky sex scandal. 119Starr’s name first appeared in connection with the case in Blackwater’s October 18, 2006, petition to U.S. Chief Justice John Roberts, asking him to put the state case on hold while Blackwater prepared to file its petition for writ of certiorari, which if granted would have allowed Blackwater to argue its case for dismissal before the U.S. Supreme Court, dominated by Republican appointees. Starr and his colleagues argued that Blackwater was “constitutionally immune” from such lawsuits and said that if the Fallujah case were allowed to proceed, “Blackwater will suffer irreparable harm.” 120In the eighteen-page petition to the Supreme Court, Blackwater argued that there are no other such lawsuits against private military/security companies in state courts “because the comprehensive regulatory scheme enacted by Congress and the President grant military contractors like Blackwater immunity from state-court litigation.” 121On October 24, Justice Roberts simply wrote “denied” on Blackwater’s application, providing no reasoning for his decision. In late November 2006, over the objection of Blackwater’s lawyers, Wake County Superior Court Judge Donald Stephens ordered the state case against Blackwater to proceed. 122A month later, Starr and his colleagues appealed to the U.S. Supreme Court to hear the case, arguing that allowing it to proceed in state court “exposed U.S. civilian contractors carrying on their Defense Department-mandated operations in hostile territory to the destabilizing reach of fifty state tort systems in this country…. relegat[ing] civilian contractors serving in profoundly dangerous circumstances to the vagaries of a Balkanized regime of conflicting legal systems among the several States.” 123In December 2006, two years after the filing of the wrongful death lawsuit against it, Blackwater filed a claim against the estates of the four men killed in Fallujah seeking $10 million, charging that the families had breached their loved ones’ contracts with Blackwater, which stated the men could not sue the company. 124Attorney Callahan called the action “a meritless claim aimed at disrupting the families’ pursuit of justice.”

After more than two years of losing legal battles in the case and with the high-stakes trial on the verge of commencing, Blackwater engaged in some deft eleventh-hour legal maneuvering. In May 2007 the company’s lawyers persuaded a senior federal judge in North Carolina to order the case into closed-door arbitration, which Blackwater argued was the only legitimate forum for the case under the contracts the four slain men had signed with the company. The decision of the private panel of three arbitrators would be binding, and an appeal of their decision would be unlikely if not impossible. “Anyone who supports the rule of law should be encouraged to see the written agreement finally being honored and the dispute heading to arbitration as the parties agreed,” Blackwater spokesperson Anne Tyrrell declared. 125A Blackwater lawyer boldly proclaimed, “The state court action is over.” 126This arbitration scenario would mean that there would be no public trial, limited discovery and witnesses, and that the decision could be kept secret with a gag order imposed on the parties involved. As of spring 2008, the families’ lawyers were fighting the decision. “Blackwater has attempted to move the examination of their wrongful conduct outside of the eye of the public and away from a jury,” Callahan and Miles said in a statement. “Blackwater is trying to wipe out the families’ ability to discover the truth about Blackwater’s involvement in the deaths of these four Americans and to silence them from any public comment.” 127