June 27, 2007

Blackwater Follows Bush-Cheney Playbook in Three Lawsuits

Guest Conributor: L. Vincent Sebastian

In recent years Blackwater USA, a private military and security contractor, has made the news on a number of fronts due to its involvement in the Iraq War, the global War on Terror, and other foreign policy/ military initiatives of the Bush Administration (see prior postings on Blackwater on this website). Tragic episodes in Iraq and Afghanistan resulted in the deaths of employees of Blackwater and its affiliates, and this in turn led to two high-profile lawsuits against Blackwater. A third lawsuit alleging corporate espionage was brought about by Blackwater against one of its former employees. In each of these suits, Blackwater has followed the three-pronged strategy used by the Bush administration of maintaining secrecy, bullying the opposition, and denying accountability to the bitter end. First, a brief review of the suits:

Lawsuit #1. In March, 2004, four Blackwater security guards were attacked and killed by a frenzied mob as they escorted a supply convoy through Fallujah, Iraq. The families of these employees then sued Blackwater, accusing the company of breaking its contractual obligations to the four men by sending them into hostile territory unprepared and failing to provide them with appropriate equipment such as armored vehicles or even a map. This lawsuit, which had made its way to the Supreme Court in a series of unsuccessful appeals by Blackwater, was recently sent to arbitration. Last month (May, 2007), a federal judge ordered the lawsuit to be decided behind closed doors, allowing Blackwater to avoid public examination of its practices in Iraq. Apparently, the employment contracts signed by these security guards contained an arbitration clause. Arbitration is a non-judicial process that has a number of advantages for Blackwater. There is no right to a trial by jury. The verdict is final and binding. There is no appeal. There is no right to discovery, which means the plaintiffs do not have the same access to internal documents, Blackwater documents. The proceedings are confidential and the outcome is confidential.

Lawsuit #2. Blackwater’s aviation division is being sued by the families of three U.S. soldiers who were killed in a plane crash in Afghanistan in November of 2004. This was a plane operated by Blackwater's aviation affiliate, Presidential Airways of Florida. All six people aboard died, the three Presidential civilian crewmen and the three soldiers. The plane was ferrying the men from an airfield in Bagram, Afghanistan, to Farah, Afghanistan, and was not flying a combat mission. According to the suit, Blackwater sent the men to their deaths in an under-equipped and poorly manned aircraft. The plane lacked even the most basic safety equipment. It had no global positioning system or radar. Its crew did not wear oxygen masks. And its two pilots, who had been in Afghanistan only two weeks and had never flown the route before, failed to take the basic step of filing a flight plan, which led to a delay in finding the wreckage. In late 2006, the National Transportation Safety Board found that unprofessional behavior by the Presidential Airways flight crew was a key cause of the crash. The Board concluded that the crew deliberately avoided the standard route and took a joy ride in another direction, eventually becoming trapped in a canyon and slamming into a mountainside. The unorthodox route contributed to a delay in locating the wreckage. Had rescuers reached the site sooner, one of the servicemen (Harley Miller) might have been saved, the investigators found. Last month (May, 2007), Blackwater was in federal appeals court in Miami today trying to get that case thrown out.

Lawsuit #3. On Feb. 21, 2006 Blackwater filed a lawsuit against former employee Curtis Smith, claiming that Smith gave trade secrets (an accounting system) to Covenant Special Projects, a rival security company in Northern Virginia where Smith now works. Blackwater actually has an affidavit from Smith in which he admits giving away trade secrets. Smith claims, however, that the statement was induced under duress and intimidation in a Blackwater conference room where he was confined against his will. After Blackwater filed suit, Smith countersued Blackwater and its executive vice president, William Mathews, alleging that his affidavit was extracted under duress. The day after Blackwater’s lawsuit was filed, Virginia Beach police raided Smith's home, authorized by a search warrant issued on suspicion of computer fraud and computer trespass, which are criminal offenses. According to the police report, the raid yielded a computer, related equipment and papers. But to date, Smith has not been charged with any crime. This criminal investigation is continuing as the civil case unfolds. Smith says that trade secret in question is a generic technique that uses simple accounting principles and that he gave up no confidential information. Moreover, he says, Blackwater has made it difficult for him to defend himself by failing to specify the trade secrets he is alleged to have stolen, saying that the information is classified. It so happens that the leader of the police raid, Maj. Jon Worthington of the Camden County, VA Sheriff's Office, moonlights as an instructor on Blackwater's Moyock, NC compound, and that the Virginia Beach Police Department leases a training facility there.

The move of the Fallujah lawsuit to arbitration will keep Blackwater away from the light of a courtroom, where many had expected to learn details about this firm and the private army it fields in Iraq and elsewhere. What is interesting is that Blackwater did not make much of disputing the specific allegations of the Fallujah lawsuit. Instead, Blackwater attorneys (which have included former Whitewater prosecutor Kenneth Starr and current White House Counsel Fred Fielding) argued that the company should not face scrutiny in civilian courts because the contracting industry is an extension of the military. That is, they took the legal approach that says, “We can’t be sued.” Blackwater argued in both the Fallujah and Afghanistan suits that it is part of the U.S. “total force” and therefore should be entitled to the same immunity from civilian litigation for wrongful death, for casualties in a war zone, enjoyed by the US military. (In February 2006, then-Secretary of Defense Donald Rumsfeld classified Blackwater and other contractors as legitimate parts of the total force making up the U.S. war machine.)

Blackwater has also tried to block the testimony of witnesses who worked for Blackwater and who are thought to have information that would show that questionable activities took place in the days leading up to the four men being killed in Fallujah. In particular, Blackwater was able to block the deposition of a former Blackwater manager, claiming that this former employee potentially was in possession of information that, if it was revealed publicly, could damage the national security of the United States.

At the same time, however, Blackwater’s lobbyists and PR specialists at the Alexander Strategy Group (the Republican lobbying firm operated by senior staffers of former Rep.Tom DeLay) were in the media proclaiming how it would be inappropriate to apply the Uniform Code of Military Justice, the court-martial system, to Blackwater operatives, because they are civilians. So, Blackwater wants it both ways: the secrecy and immunity enjoyed by the military, but not the military’s system of accountability.

Blackwater uses a secrecy-at-all-costs approach to doing business not only with the courts, but also with the U.S. Congress. “(The Fallujah) incident was a bit of a wake up call to many people to not only the extent of the private security contracting but the questions surrounding it,” said North Carolina Rep. David Price, who helped add increased contracting oversight measures to the defense authorization bill approved recently by the House. Blackwater is notoriously reticent to discuss the details of its business, and Congress has struggled at times to get answers about Blackwater and others in the private military contracting industry. Blackwater has repeatedly refused to turn over documents related to deadly incidents in Iraq and Afghanistan. It has stone-walled to the point of telling Rep. Henry Waxman, chair of the House Government Oversight Committee, that they cannot provide him with documents because they are classified.

Of the three lawsuits discussed above, Blackwater wants only one of them to go to court: the one that it initiated (against its former employee). Here, the corporation has sought to intimidate an individual through a coerced affidavit and a “police” raid carried out by one of its part-time employees. But even here, Blackwater continues its national security-based argument for secrecy.

Other recent commentary: The Bush administration has engaged in private contracting on a scale previously unimagined, and we need to have a handle on it (Rep. David Price). “We're spending an awful lot of money on these companies, and people still can't define their role” (John Pike, a military analyst with think tank GlobalSecurity.org). “The losers in this development are ultimately the American people,” (Jeremy Scahill, author of “Blackwater: The Rise of the World's Most Powerful Mercenary Army”).

End Notes: How connected is Blackwater to the Bush administration and to the Republican Party? In addition to the connections mentioned above, consider the following.

* Since February 2005, J. Cofer Black has been Vice Chairman of Blackwater USA. From December 2002 to November 2004 he was the U.S. Department of State Coordinator for Counterterrorism with the rank of Ambassador at Large. He was a key figure in the rendition program, the government-sanctioned “kidnap-and-torture” program, where suspected terrorist prisoners are sent to third-country locations to be interrogated. Black is also chairman of a new privatized intelligence company called Total Intelligence Solutions that is being bankrolled by Erik Prince, the head of Blackwater. Recently, presidential candidate Mitt Romney tapped Black to be his senior advisor on counter-terrorism.

* Mitt Romney grew up in Michigan and is the son of former Michigan governor George Wilcken Romney (1907 -1995). The elder Romney was the chairman of American Motors Corporation from 1954 to 1962 and was the Republican Governor of Michigan from 1963 to 1969. He was also a candidate for the Republican presidential nomination in 1968 but lost to Richard Nixon.

* Erik Prince, the head and founder of Blackwater, also grew up in Michigan where his father, Edgar Prince (died 1995) founded a company in 1965 called Prince Manufacturing (Prince Automotive) in Holland, Michigan, which serviced the auto industry. Revenue from this company was used to fuel the rise of the religious right in America. The elder Prince gave seed money to Gary Bauer to found the Family Research Council, where Erik Prince was once an intern. The Prince’s were also significant bankrollers of James Dobson and his group Focus on the Family. Erik Prince was a Navy SEAL (one of the wealthiest people ever to join the SEALS) prior to founding Blackwater. His reason for founding Blackwater was to anticipate government outsourcing of training and firearm-related activity. This closely followed a Halliburton study commissioned by Dick Cheney (as George H.W. Bush’s Secretary of Defense) on how to further privatize the military bureaucracy.


“Afghanistan: Families Sue Private Contractor Over Soldiers' Deaths”
Kristin Collins, The News & Observer, June 14, 2005

“Crew's behavior is blamed for '04 plane crash in Afghanistan”
Bill Sizemore, The Virginian-Pilot, December 7, 2006

“The Rise of Blackwater”
Sandip Roy, New America Media, April 24, 2007

“US: Blackwater lawsuit accuses ex-employee of stealing secrets”
Bill Sizemore, The Virginian-Pilot, May 10, 2007

“Pivotal Family Lawsuit Against Blackwater USA Blocked from Court -- and Moved to Panel with Company Ties”, Amy Goodman, Democracy Now! May 23, 2007

“Blackwater lawsuit over U.S. security contractors killed in Iraq headed for private arbitration” Mike Baker, May 26, 2007

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