Jeremy Scahill - Blackwater

The court ultimately rejected Blackwater’s “political question” argument, saying it was “not a proper basis for dismissing this case.” Antoon also questioned Blackwater’s contention that it was essentially part of the military, pointing out that the federal government could have filed a brief supporting Blackwater in this case but had not. “Notably, the United States has not chosen to intervene on behalf of Defendants in this case,” the judge wrote.“ It has declined an opportunity to intervene and explain how its interests might be affected by this lawsuit.” 51

While rebuking Blackwater, the judge did seem to indicate that these situations could change for contractors in the future. “The extent to which for-profit corporations, performing traditional military functions, are entitled to protection from tort liability is an area of interest to the political branches.” 52

In arguing that it is immune from tort litigation, Blackwater cited the Feres Doctrine, which holds that the government has sovereign immunity from tort suits for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 53Blackwater argued that “it is inconsequential here that the decedents died in aircraft hired by the Air Force, rather than in an aircraft operated by the Air Force—what matters is that they were military personnel who died while on war duty.” 54Blackwater alleged that even the families of the dead soldiers admitted their loved ones “(1) were deployed to Afghanistan, (2) died in a combat zone, and (3) did so while being transported on a DoD mission between two airfields in Afghanistan.” 55

Judge Antoon clearly took issue with Blackwater’s interpretation of a fairly straightforward immunity granted to the military, pointing out that Blackwater’s lawyers “cite no case in which the Feres doctrine has been held applicable to private contractors.” 56He said Blackwater/Presidential “essentially mask their request for this Court to stretch Feres beyond its established and logical bounds by citing cases which emphasize that it is the plaintiff’s status as a member of the military and not the status of [Blackwater] that is significant.” 57The judge concluded, “Clearly, Defendants in this case are not entitled to protection under the Feres doctrine because they are private commercial entities…. Defendants entered into the contract as a commercial endeavor. They provided a service for a price. Simply because the service was provided in the mountains of Afghanistan during armed conflict does not render the Defendants, or their personnel, members of the military or employees of the Government.” 58In other words, Antoon determined that though the Pentagon might have referred to private military contractors as part of its “Total Force,” that did not change Blackwater’s status as a for-profit private company responsible for its actions.

Blackwater’s third major argument for immunity from tort lawsuits was that, as a military contractor, it is immune from such litigation in the same way that certain producers of complex military equipment have been found immune. In one case, the family of a dead Marine sued a manufacturer for defects in its design of a helicopter escape system. The court concluded that “state tort law was preempted by the government’s profound interest in procuring complex military equipment” and that the government had the “discretion to prioritize combat effectiveness over safety when designing military equipment.” 59

Judge Antoon decided that although that defense exists and it has been extended in some instances, there is no “authority for bestowing a private actor with the shield of sovereign immunity. Until Congress directs otherwise, private, non-employee contractors are limited” to exceptions like that involving the design of complex equipment. “This Court is skeptical that the combatant activities exception to the [Federal Tort Claims Act], which preserves the Government’s traditional sovereign immunity from liability, has any application to suits against private defense contractors,” Antoon wrote. “To the extent that it does apply, however, at most it only shields private defense contractors for products liability claims involving complex, sophisticated equipment used during times of war. It has never been extended to bar suits alleging active negligence by contractors in the provision of services, and it shall not be so extended by this Court.” 60

In late September 2006, Judge Antoon denied every single motion made by Blackwater to stop discovery and dismiss the case, and, as expected, Blackwater immediately began the appellate process. While Antoon decisively rejected Blackwater’s claim that it is in effect an extension of the U.S. military because of its claimed status as part of the Pentagon’s “Total Force,” Blackwater may actually have been far more intertwined with the workings of the military and intelligence agencies than it would ever let on.

While what little attention that has been paid to Blackwater’s aviation division has focused on the Afghanistan lawsuit, the company has multiple contracts with the U.S. government to provide pilots and aircraft. Information on the use of Blackwater’s planes by the government is difficult to obtain, but it has been well documented that U.S. intelligence agencies and the military have used private aviation companies to “render” prisoners across the globe, particularly under the Bush administration’s “war on terror.” Under this clandestine program, prisoners are sometimes flown to countries with questionable or terrible human rights records, where they are interrogated far from any oversight or due process. To avoid oversight, the government has used small private aviation companies—many with flimsy ownership documentation—to transport the prisoners. “Terrorism suspects in Europe, Africa, Asia, and the Middle East have often been abducted by hooded or masked American agents, then forced onto a Gulfstream V jet,” wrote investigative journalist Jane Mayer in The New Yorker magazine. The plane “has clearance to land at U.S. military bases. Upon arriving in foreign countries, rendered suspects often vanish. Detainees are not provided with lawyers, and many families are not informed of their whereabouts.” 61While there is nothing directly linking Blackwater to extraordinary renditions, there is an abundance of circumstantial evidence that bears closer scrutiny and investigation.

The rendition program was not born under the Bush administration but rather during the Clinton administration in the mid-1990s. The CIA, with the approval of the Clinton White House and a presidential directive, began sending terror suspects to Egypt, where, far removed from U.S. law and due process, they could be interrogated by mukhabarat agents. 62In 1998, the U.S. Congress passed legislation declaring that it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” 63After 9/11, this legislation was sidestepped under the Bush administration’s “New Paradigm,” which stripped alleged terror suspects of basic rights. 64This thinking was best articulated by Vice President Dick Cheney five days after 9/11, when he argued on NBC’s Meet the Press that the government should “work through, sort of, the dark side.” Cheney declared, “A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.” 65These sentiments were echoed by the CIA’s number-three man at the time, Buzzy Krongard—the man allegedly responsible for Blackwater’s first security contract in Afghanistan—who declared the war on terror would be “won in large measure by forces you do not know about, in actions you will not see and in ways you may not want to know about.” 66