A little-noticed court case in Florida threatens to undermine the arrangement under which some 150,000 private contractors provide security and backup for the U.S. in war zones. Representatives of Blackwater and other U.S. private contractors operating in Iraq and Afghanistan tell TIME that the Bush Administration has just missed a deadline to put its views on record in the case. As a result, they say nothing is being done to protect their interests in the Florida lawsuit, which could eventually end up in the Supreme Court. This despite President Bush's public encouragement for the what he has described as the indispensable role of U.S. contractors overseas.
The Florida case concerns three American servicemen killed in the crash of an aircraft owned by Blackwater Aviation in Afghanistan. Relatives of the men are suing the company for what could amount to millions of dollars in damages. Many of the issues raised by the case could have important implications for all contractors at work in Iraq. The Blackwater aircraft, designated "flight 61," had been transporting U.S. personnel and munitions when it went down on Nov. 27, 2004, killing the three servicemen as well as the company-provided flight crew. A series of U.S. government reviews has said that errors committed by the staff of Blackwater Aviation were responsible for the deaths, a conclusion that the company disputes.
The Bush Administration has taken no position on the Florida case, something that has caused dismay among Blackwater and its defenders. "After the President has said that, as Commander-in-Chief, he is ultimately responsible for contractors on the battlefield it is disappointing that his Administration has been unwilling to make that interest clear before the courts," Erik Prince, Blackwater's chairman, told TIME after a Tuesday deadline passed for comments on the case. "And this is happening even as our professionals risk their lives every day in support of vital U.S. priorities, while Congress and several federal agencies publicly discuss the issues at stake in this particular lawsuit."
The Florida court battle comes amid major confusion over the legal status of Blackwater and other U.S. contractors, who are deemed to provide essential security and logistics support to U.S. diplomatic and military missions but whose operations are not clearly covered under U.S. law. The legal gray area in which the contractors function was largely created by the Bush Administration, whose erstwhile administrator in Iraq, J. Paul Bremer, issued a decree three years ago granting legal immunity to security contractors. At the same time, the Iraqi government angered by recent incidents in which Iraqis have been killed by U.S. contractors is moving to make them accountable under Iraqi law, a step that the U.S. is resisting.
Blackwater and other contractors say that if the Florida damages case is allowed to proceed, it will expose them to potentially large liabilities that could cripple their ability to play the role for which they're hired by the U.S. government. Blackwater has argued that because "flight 61" was under the command and control of the U.S. military, the company should be covered by the same "sovereign immunity" that protects the U.S. military from lawsuits. The company also claims legal protection under the "political doctrine," which holds that different branches of government cannot review each other's legitimate actions in this case, the Pentagon's decision to send Blackwater to Afghanistan.
Plaintiffs in the Florida dispute argue that Blackwater is trying to have it both ways enjoying the rich profits of a private entity, while seeking unwarranted protection from the government to avoid its responsibilities. Blackwater's arguments in the Florida case were rejected last month by three federal judges, who cited the U.S. government's failure to make a filing in the case as one of their reasons for refusing the companyís claims. The U.S. government often makes such filings to clarify its view on matters before the Federal courts, but it has remained silent in the Florida Blackwater case.
"The apparent lack of interest from the United States... fortifies our conclusion that the case does not yet present a political question," the 11th Circuit judges wrote in their opinion. Without any government objections, the courts seem ready to allow the case to move forward.
And that would be a disaster, say contractors, because it could establish a precedent allowing any of them to be sued in Federal or state courts in the future.
"If these suits go ahead, then there's the question of whether the industry can survive, given the costs of insurance that will be required to cover the risk," says Keith Flicker, a lawyer who has represented dozens of major contractors including DynCorp, Kellogg Brown and Root, Blackwater and others. "Suddenly, wrongful death or injury suits may be brought in any of the 50 states, and overseas employees of American contractors might also bring cases where they live." He and other contractor representatives say that insurance companies are unlikely to provide coverage for war zones, potentially rendering untenable the contractors' support role. In that case, the argument goes, American firms like Blackwater would have to be replaced by foreign-owned contractors who could not be sued in U.S. courts.
The number of U.S.-hired contractors based abroad has risen dramatically under the Bush Administration, with industry sources suggesting the total has risen from some 15,000 in 2002 to around 150,000 today. Some legal observers are mystified as to why the Bush Administration has refrained from taking a position in the Florida case, amid rumors that the inaction is a result of disagreements between lawyers in the Departments of Defense, Justice and Labor. Still, the Administration remains committed to deploying the contractors. President Bush at a recent White House press conference, when asked if he was "in control of and responsible for" those contractors, replied, "Yes, I'm responsible."
The White House has also hit back hard in response to a bill passed overwhelmingly by the House of Representatives that would place combat-zone contractors under the jurisdiction of U.S. courts. The White House argued that this measure, which is now pending before the Senate, would have "intolerable and unintended consequences" for U.S. national security by overburdening the military and making an extension of Federal jurisdiction to overseas activity that is "unwarranted and unwise."
Contractors say making them subject to U.S. courts would also violate the Administration's "total force doctrine," under which the Pentagon in February 2006 defined the U.S. "warfighting capability and capacity" as composed of "active and reserve military components, its civil servants and its contractors." As a result, the industry is concerned that the Administrationís failure to take a stand in court signals a de facto abandonment of its own "total force doctrine."
Blackwater has appealed last month's 11th Circuit decision, and the industry hopes that the Bush Administration will at some point ride to its rescue with a filing in the Florida case. Should Blackwater's current appeal fail, it could then take the case to the Supreme Court.