Jeremy Scahill - Blackwater

Bolstering the families’ case was the fact that the U.S. Army Collateral Investigations Board found Blackwater at fault for the crash, determining after a lengthy investigation that the crew suffered from “degraded situational awareness” and “inattention and complacency” as well as “poor judgment and willingness to take unacceptable risks.” 39The investigation also determined it was possible that the pilots were suffering from visual illusions and hypoxia, whose symptoms can include hallucinations, inattentiveness, and decreased motor skills. Further, the Army said there was demonstrated evidence of “inadequate cross-checking and crew coordination.” 40Presidential Airways said the report “was concluded in only two weeks and contains numerous errors, misstatements, and unfounded assumptions.” 41

In December 2006, nearly two years after Army investigators concluded their report, the National Transportation Safety Board issued a report of its own. The NTSB concluded that Blackwater’s pilots “were behaving unprofessionally and were deliberately flying the nonstandard route low through the valley for ‘fun.’” The board also found that the pilots’ vision and judgment might have been impaired because they were not using oxygen, potentially in violation of federal regulations. “According to studies… a person without supplemental oxygen will exhibit few or no signs, have virtually no symptoms, and will likely be unaware of the effect,” the board said. 42

But perhaps the most significant finding, as a result of autopsies not mentioned in the earlier Army report, was that Specialist Miller had “an absolute minimum survival time of approximately eight hours” after the accident, and that if Miller “had received medical assistance within that time frame, followed by appropriate surgical intervention, he most likely would have survived.” But, the board found, because Presidential Airways allegedly did not have procedures required by federal law to track flights, “by the time air searches were initiated, [Miller] had been stranded at the downed airplane for about seven hours,” and “his rescue was further delayed when the subsequent five hours of aerial searches were focused in areas where the airplane had not flown.” 43

Joseph Schmitz, general counsel for Blackwater’s parent company, The Prince Group (who will be discussed in detail in a later chapter), described the report as “erroneous and politically motivated,” according to the Raleigh News & Observer, and “said the report was intended to cover for the military’s failures, but declined to elaborate on those failures. It was clear, he said, that the NTSB hadn’t completed the rudiments of a proper accident investigation, which he called a disgrace to the victims and U.S. taxpayers,” and added that the company would ask the NTSB to reconsider its findings. 44

In fact, though the NTSB did blame the pilots and Presidential, it also blamed both the FAA and Pentagon for not providing “adequate oversight,” and one NTSB member wrote a concurring opinion that highlighted the jurisdictional confusion in investigating “a civilian accident that occurred in a theater of war while the operator was conducting operations on behalf of the Department of Defense.” The NTSB’s Deborah Hersman called it “perplexing” that the Defense Department and FAA had not sorted out responsibility for “these types of flights” and added that even though the FAA was faulted for oversight, neither it nor the NTSB had personnel assigned to Afghanistan. 45Those issues, combined with Hersman’s description of Blackwater 61 as “clearly a military operation subject to DoD control,” spoke directly to the tack Blackwater took in defending itself against the wrongful death lawsuit.

Blackwater’s response strategy to the Afghanistan lawsuit closely paralleled that of its Fallujah defense: Blackwater and its subsidiaries are part of the Defense Department’s “Total Force” and are therefore immunized against tort claims. Blackwater stiffly resisted acknowledging that the courts had any jurisdiction in the case and moved to stop the trial’s discovery process at every turn, arguing that even allowing its employees to be deposed would interfere with its immunity. Blackwater’s lawyers argued, “Immunity from suit does not mean just that a party may not be found liable, but rather that it cannot be sued at all and need not be burdened with even participating in the lawsuit. To require Presidential to engage in discovery thus would eviscerate the immunity that Presidential has.” 46

In fighting the lawsuit, Blackwater adopted a three-pronged approach to argue that it should be immune from such litigation: that its operations fall under the realm of a “political question” that must be addressed by either the executive or legislative branches, but not the judiciary; that Blackwater is essentially an extension of the military and thus should enjoy the same immunity from lawsuits that the government does when members of the military are killed or injured; and that Blackwater should be immune from lawsuits under an exception to the Federal Tort Claims Act that has in the past been granted to contractors responsible for the design and manufacturing of complex pieces of military equipment. Other military contractors closely monitored Blackwater’s arguments in the Fallujah and Afghanistan cases, believing that the outcomes would have far-reaching implications for the entire war industry.

In its court filings, Blackwater/Presidential cited the “political question doctrine,” which relies on the idea that “the judiciary properly refrains from deciding controversies that the Constitution textually commits to another political branch and cases that are beyond the competence of the courts to resolve because of the lack of judicially manageable standards.” 47Referencing its contention that it was a recognized part of the U.S. “Total Force” and part of the Defense Department’s “warfighting capability and capacity,” Blackwater argued that “allowing civilian courts to consider questions of liability to soldiers who are killed or injured in operations involving contractors on the battlefield would insert those civilian courts directly into the regulation of military operations.” 48

This argument was not warmly received by the district court judge in the case. In rejecting Blackwater’s argument, Judge John Antoon cited the 2006 ruling in Smith v. Halliburton Co . That lawsuit accused Halliburton of negligence for failing to secure a dining hall in Mosul, Iraq, that was hit by a suicide bomber on December 21, 2004, killing twenty-two people. Judge Antoon found:

The proper inquiry, according to the court, was whether the claim would require the court to question the military’s mission and response to an attack. If the military was responsible for securing the facility, resolving the matter would require “second-guessing military decision-making” and evaluating the conduct of the military—a political question. However, if the contractor was primarily responsible for securing the dining hall under its contract, the suit would be justiciable. Concluding that “there is a basic difference between questioning the military’s execution of a mission and questioning the manner in which a contractor carries out its contractual duties,” the court foreshadowed the conclusion drawn here: the former situation presents a political question, while the latter does not. 49

Judge Antoon determined that because Blackwater 61 was “required to fly as [it] normally would, according to commercial, civilian standards, in a foreign, albeit treacherous, terrain” and could refuse to fly any mission they felt was too dangerous, “it does not appear… this Court will be called on to question any tactical military orders.” 50