Iraq convoy was sent out despite threat

Unarmored trucks carrying needed supplies were ambushed, leaving six drivers dead. Records illuminate the fateful decision.

“Can anyone explain to me why we put civilians in the middle of known ambush sites?”

“Maybe we should put body bags on the packing list for our drivers.”

T Christian Miller The LA Times  September 3, 2007

Senior managers for defense contractor KBR overruled calls to halt supply operations in Iraq in the spring of 2004, ordering unarmored trucks into an active combat zone where six civilian drivers died in an ambush, according to newly available documents.

Company e-mails and other internal communications reveal that before KBR dispatched the convoy, a chorus of security advisors predicted an increase in roadside bombings and attacks on Iraq’s highways. They recommended suspension of convoys.

“[I] think we will get people injured or killed tomorrow,” warned KBR regional security chief George Seagle, citing “tons of intel.” But in an e-mail sent a day before the convoy was dispatched, he also acknowledged: “Big politics and contract issues involved.”

KBR was under intense pressure from the military to deliver on its multibillion-dollar contract to transport food, fuel and other vital supplies to U.S. soldiers. At Baghdad’s airport, a shortage of jet fuel threatened to ground some units.

After consulting with military commanders, KBR’s top managers decided to keep the convoys rolling. “If the [Army] pushes, then we push, too,” wrote an aide to Craig Peterson, KBR’s top official in Iraq.

The decision prompted a raging internal debate that is detailed in private KBR documents, some under court seal, that were reviewed by The Times.

One KBR management official threatened to resign when superiors ordered truckers to continue driving. “I cannot consciously sit back and allow unarmed civilians to get picked apart,” wrote Keith Richard, chief of the trucking operation.

Six American truck drivers and two U.S. soldiers were killed when the convoy rumbled into a five-mile gauntlet of weapons fire on April 9, 2004, making an emergency delivery of jet fuel to the airport. One soldier and a seventh trucker remain missing.

Recriminations began the same day.

“Can anyone explain to me why we put civilians in the middle of known ambush sites?” demanded one security advisor in an e-mail. “Maybe we should put body bags on the packing list for our drivers.”

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Halliburton, KBR win appeal of Fisher vs Halliburton on Exclusive Remedy Clause of Defense Base Act

The Defense Base Act’s Exclusive Remedy “A License to Kill”

The Exclusive Remedy was intended to be trade off to keep injured contractors from having litigate with their employers when they are injured.  As it turns out the employers are off the hook and the injured contractors fight for years for medical care and lost wages from private insurance companies, AIG, CNA, ACE

AIG has fought the survivors and families of those killed like they were common criminals for the death, medical, and lost wages that were to be provided “forthwith”.

And don’t think something like couldn’t happen to you, your only one bomb or one sniper away.

Bloomberg  January 12, 2012

KBR Inc. (KBR) and its former corporate parent, Halliburton Co. (HAL), won’t face a jury on claims they sent unarmed civilian convoy drivers into an Iraqi battle zone in 2004, knowing the workers would be injured or killed, an appeals court ruled.

The U.S. Court of Appeals in New Orleans today ruled the drivers’ claims were blocked by the Defense Base Act, a U.S. law that shields military contractors from lawsuits. The drivers were attacked and injured because of their role in support operations for the U.S. Army, which is covered under that statute, the judges said.

“Coverage of an injury under the DBA precludes an employee from recovering from his employer,” even if the worker claims the company was “substantially certain” the injuries would occur, U.S. Circuit Judge Priscilla R. Owen said in a 30-page ruling by the panel.

KBR, a Houston-based government contractor, was sued in 2005 by the families of seven drivers killed while working inIraq for the largest U.S. military contractor. The company appealed a 2010 lower-court ruling that jurors could weigh the companies’ actions without second-guessing the actions of the Army.

Unarmed Civilians

U.S. District Judge Gray Miller, who presided over the case in Houston federal court, refused to dismiss Halliburton, which spun off KBR as a separate company in 2007. Miller had also ruled that the companies couldn’t name the military as a co-defendant in the lawsuits, so the Army wasn’t required to defend its actions.

The drivers and their families claimed KBR officials fraudulently recruited workers for safe jobs in Iraq and intentionally sent unarmed civilians into a recognized combat zone in April 2004. KBR’s military-supply contract gave company officials the right to refuse assignments deemed too dangerous for civilians, according to the complaints.

KBR and Halliburton argued that they weren’t liable because they couldn’t refuse Army orders to dispatch the fuel convoys under terms of their multibillion-dollar supply contract with the U.S. military. The convoys were attacked at a time when Iraqi insurgents were escalating the fight against U.S. troops that had taken over the country to oust dictator Saddam Hussein.

The case is Fisher v. Halliburton, 10-20202, U.S. Court of Appeals, Fifth Circuit (New Orleans).

Declassified KBR Contract shows how it gets a free pass for Willful Misconduct

Craig Malisow at Houston Press December 16, 2011

A KBR government contract protected the company from liability for injuries or deaths caused by willful misconduct, according to recently declassified Army documents.

Although the existence of the clause was revealed as a part of a lawsuit filed in 2009, the actual document remained classified until this week. The contract is a key point in the federal suit, filed in Texas by Houston attorney Mike Doyle on behalf of 136 Indiana, South Carolina and West Virginia National Guardsmen (and British Royal Air Force officers) who were allegedly exposed to cancer-causing chemicals while providing security at an Iraqi water treatment plant in 2003.

Two Guardsmen have died, seven have developed respiratory system tumors and others are experiencing serious respiratory issues as a result of the exposure, according to the suit. (Doyle is also involved in a sister suit in Oregon, involving 34 Oregon National Guard soldiers.)

The indemnity clause requires the government to cover the cost of litigation against KBR, even if the company (then still a part of Halliburton) was at fault. In the water treatment plant suit, the guardsmen claim they were exposed to a highly toxic chemical called hexavalent chromium, and that KBR lied to the soldiers about the chemical’s presence and any associated health risks.

KBR has denied any wrongdoing.

Approximately 1,000 Army soldiers and civilian employees were exposed to the chemical while working at the Qarmat Ali facility in 2003, “and many remained unaware of their exposure until 2008,” according to a September 2011 report by the Department of Defense’s Office of Inspector General.

“Contractor recognition of, and response to, the health hazard represented by [the chemical] contamination, once identified at the Qarmat Ali facility, was delayed,” the report states. “The delay occurred because KBR did not fully comply with occupational safety and health standards required by the contract….”

However, the indemnity clause appears to absolve KBR of any financial liability. This prompted Oregon Representative Earl Blumenauer to co-author an amendment in the National Defense Authorization Act of 2011 calling for the Pentagon to notify Congress of future indemnity clauses.

“We already know from what happened at KBR’s Qarmat Ali project that these secret bailout deals are bad for our soldiers and a bad deal for taxpayers, and anything that puts more protections in place is a good step,” Doyle said of the act’s amendment

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Contractor, DynCorp, found not liable for war-zone employee deaths

From the Federal Times

See also The Defense Base Act’s Exclusive Remedy A License to Kill

In a decision that could have broad implications for government contractors, the Delaware Supreme Court on Dec. 8 upheld a lower court ruling that an employee-signed agreement waiving liability precludes lawsuits for wrongful death and negligence.

Is DynCorp having employees sign separate agreements stating this or are they relying on the normally undisclosed Exclusive Remedy clause in the DBA?  There is no DBA policy to read and agree to.

On Aug. 29, 2004, John Deuley and Gerald Gibson, two civilian police officers working for a subsidiary of DynCorp International, were killed in an attack on the State Department’s civilian police headquarters in Kabul, Afghanistan.

Joseph Dickinson, another civilian police officer, was severely injured in the attack.

Deuley’s and Gibson’s wives filed wrongful death and survival lawsuits, while Dickinson filed a personal injury lawsuit against DynCorp, headquartered in Delaware.

The Delaware Supreme Court, in upholding the lower court’s dismissal of the case, rejected the argument that the employee agreement was vague by releasing the company of responsibility on “any claim” in return for agreed-upon benefits, and the court rejected the argument that the agreement did not extend to employer negligence, according to court documents.

The significant part of the agreement, according to the court, states that “the employee understands and accepts the fact that he or she may be exposed to dangers due to the nature of the mission. The employee agrees that neither the Employer nor its affiliates will be liable in the event of death, injury, or disability, to Employee, except as stated.”

DynCorp’s agreement with the employees involved the purchase of life insurance, medical coverage and disability benefits as required under the Defense Base Act, under which many government contractors operate, but releases DynCorps from legal damages from negligence or other issues such as wrongful death.

Please see the complete article at the above link