Are Contractors in War Zones Above the Law?

In January of 2008, Staff Sgt. Ryan Maseth, 24, was electrocuted while showering in his Baghdad barracks. His death prompted last week's congressional report concluding that defense contractor KBR, (until a year ago a subsidiary of the oil services giant Halliburton) was well aware that the electrical system in Maseth's complex was faulty. An accident like this, the report found, was bound to happen. But this report also now raises a larger and thornier question about military defense contractors: can they be held legally liable for their actions -- or inactions? Will anyone be held responsible for Maseth's death?

This is an increasingly important question as the U.S. government hires ever more military contractors to do work that used to be done by U.S. soldiers. The war in Iraq has already involved more outsourcing of military functions than any previous war in American history. An estimated 180,000 civilian contractors now work in Iraq and Afghanistan to support the U.S. government there. They do everything from guard U.S. officials and dignitaries to truck fuel, food and other supplies to military bases -- all jobs that used to be done by soldiers.

Private contractors operating in Iraq are not subject to U.S. military authority, or to U.S. or Iraqi law. Their employees are not subject to the rigors of Army basic training; and their superiors are not held to the strict rules and ethics that apply to the U.S. military. As a result, notes Peter W. Singer, a senior fellow at the Brookings Institution, in his book, "Corporate Warriors: The Rise of the Privatized Military Industry," "When the means of security are privatized, certain mechanisms of moral hazard and adverse selection might lead firms astray. Just as in the rest of commerce, war is business where nice firms do not always finish first."

Indeed, whistle-blowers at these companies run the risk of being fired. In 2007, shortly after one KBR electrician reported to a defense contracting agency official that logs were being created to make it appear that nonexistent electrical safety systems at the base were working properly, he lost his job, according to The New York Times. Another employee "said his KBR bosses mocked him for raising safety issues."

Yet, the Pentagon inspector general's interim report provided to the House Oversight Committee on July 28 said it "has not found any credible evidence that representatives from KBR were aware of imminent, life-threatening hazards" in Maseth's complex prior to his death. This is despite that fact that the Army itself had issued an urgent bulletin (pdf) in 2004 warning soldiers of the threat.

Of course, the Pentagon may have an interest in protecting its contractors. The Defense Dept. indicated, in a 2006 review, that it intends to increase its reliance on private military companies and other outsourced support services. Its handling of the death of Maseth certainly suggests that the Pentagon is defensive on the subject: the soldier's mother, Cheryl Maseth, was originally told that her son had carried an electrical appliance into the shower.

As of January, more than 1,000 private civilian contractors -- including 110 KBR employees -- had been killed in Iraq, and another 13,000 wounded. Deaths of American soldiers in battle, meanwhile, have climbed to more than 4,100. So what happens when the military contracting companies themselves are to blame for the deaths? For years now, KBR and other military contractors have argued that as a matter of law, regardless of the circumstances, they are not responsible. As government contractors, they say, just like the military, they're immune from legal suits. That's been KBR's defense in a series of cases over the past few years when the company has been accused of knowingly sending unarmed civilian employees into active combat zones -- sometimes to their deaths.

In a case I wrote about in January for The American Lawyer, KBR denied responsibility for sending an unarmed convoy of trucks down a dangerous road under active insurgent attack. In what's come to be known as the Good Friday Massacre, in April 2004, six KBR drivers were killed and 14 were wounded. One driver is still officially missing, and presumed dead.

Now KBR could be facing many such claims. According to the Defense Dept.'s own inspector general, as of July 10, there have been 16 deaths due to faulty electrical wiring on U.S. military bases that KBR was supposed to be maintaining. Companies like KBR rely on a range of legal defenses when accused of wrongdoing, but the gist is always the same: working for the U.S. military means they're beyond the authority of the U.S. courts -- therefore immune from U.S. law.

That's exactly the tack KBR appears to be taking in the case of Maseth, whose mother has sued KBR, claiming that the company knew of the danger and was responsible for fixing it, but didn't. In other words, KBR, she asserts, could have prevented her son's death.

KBR, which has received $20 billion in Iraq war contracts since 2003, vehemently denies this. KBR's actions "were not the cause of any of these terrible accidents," company executive Thomas Bruni told the House Oversight and Government Reform Committee on Wednesday. An interim DOD inspector general report, obtained by The Associated Press last Tuesday, reached the same conclusion.

But at least some evidence suggests otherwise. Under KBR's multi-billion-dollar contract with the Army, the company was responsible for maintaining U.S. military bases and facilities in Iraq. According to documents produced to the Oversight Committee, KBR had inspected and found problems with the building's electrical infrastructure at least four times in the months prior to Maseth's death. Documents show, for example, that another soldier in the complex had experienced electrical shocks while showering and submitted a work order (pdf) to KBR on July 8, 2007, stating: "Pipes have voltage, get shocked in the shower." A KBR electrician that day found a faulty pressure switch and noted: "Plumber needs to repair." On July 9, 2007, after KBR workers replaced the pressure switch and the water pump, the work order was stamped "finished".

Still, on Jan, 2, 2008, when Maseth turned on the shower, an ungrounded water pump short-circuited and electrified the water pipes. The current traveled through the pipes, the shower head and the water itself, electrocuting Maseth. He was dead within seconds. The congressional report concludes, based on the evidence, that KBR had installed the water pump that malfunctioned and caused the death.

Whether a court will hold the company liable, however, may depend less on the facts than whether a judge accepts KBR's claim of immunity. According to KBR's legal papers, even if the company knew of the problem and failed to fix it, KBR will claim that it's not legally liable because it was working for the U.S. government. In its motion to remove the case from state to federal court, KBR's lawyers wrote that they plan to invoke the "government contractor defense" - meaning the government approved the work so it is not responsible; the "official immunity doctrine" - that, as a government contractor, it's entitled to the same immunity as the U.S. military itself, and the "political question" doctrine -- a KBR favorite on which it's won several cases before. Under this, KBR argues that the court should dismiss the case because it would require the court to judge the actions of the U.S. military -- province of the president and Congress, not the federal courts.

KBR has relied on this same "political question" defense to win at least two previous cases involving the death of U.S. soldiers or of its own employees. But the courts are now starting to question the legitimacy of those defenses.

In the case of the Good Friday Massacre, the traditionally conservative Fifth Circuit Court of Appeals last May reversed a Texas district court's order that had dismissed the case under the political question doctrine. The three-judge panel noted that, contrary to KBR's argument, it may well be possible to resolve the cases without engaging in a "constitutionally impermissible review of wartime decision-making." Though the court cannot judge the military decisions of the Defense Dept., the court acknowledged, that doesn't shield every action taken by a military contractor. Judge Leslie Southwick wrote, "these tort-based claims of civilian employees against their civilian employers can be separated from the political questions that loom so large in the background."

The same reasoning likely applies to the electrocutions. Whether the political question doctrine applies "is partly determined by how closely intertwined the contractor is with the government officials," said Laura Dickinson, an expert on military contractor law at the University of Connecticut Law School. "One of the interesting things that I think we're seeing is that courts are not willing to throw these cases out when the contractor has a fair degree of discretion."

In this case, either KBR was responsible for repairing the electrical problems at the military base, or it wasn't. That is a factual dispute that would emerge as the lawyers gather evidence. It is not a legal matter that warrants dismissal of the case.

Unless carefully applied, contractor immunity defenses preclude a real investigation into what happened and who is responsible. If, as has happened over and over in this war, nobody is held responsible for the failures of military contractors, then there can be no incentive to do better next time.

The result is that, as long as something is done in a war zone, even the shoddiest work gets a pass -- regardless of the consequences.

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