Blackwater: The Rise of the World's Most Powerful Mercenary Army

by Jeremy Scahill

  Blackwater’s primary argument, however, centered around what it portrayed as the bigger-picture ramifications for the future of U.S. war-fighting. “The question whether contractors may be sued, in any court, for war casualties while the military services may not . . . could determine whether the President, as Commander-in-Chief, will be able to deploy the Total Force decades into the future,” Blackwater argued in an appellate brief filed October 31, 2005.108 In a subsequent filing two months later, Blackwater cited Paul Bremer’s Order 17—which officially immunized contractors in Iraq—arguing that since the order “reflects a foreign policy decision made or at least supported by the United States,” Blackwater should be “immune from the claims stated” in the lawsuit.109 The company’s lawyers asserted that allowing the case to proceed against Blackwater could threaten the nation’s war-fighting capacity: “In order for responsible federal contractors to accompany the U.S. Armed Forces on the battlefield, it is essential that their immunity from liability for casualties be federally protected and uniformly upheld by federal courts. Nothing could be more destructive of the all-volunteer, Total Force concept underlying U.S. military manpower doctrine than to expose the private components to the tort liability systems of fifty states, transported overseas to foreign battlefields. . . . How the President oversees and commands these military operations, including his decisions through the chain of command concerning the training, deployment, armament, missions, composition, planning, analysis, management and supervision of private military contractors and their missions, falls outside the role of federal—and perforce state—Courts.”110

  Blackwater argued that the courts could not interfere in its operations because they would be essentially interfering in the functioning of the military, something prohibited by the “political question doctrine,” which “is one of the sets of principles that safeguard from judicial inquiry decisions made by civilian political leaders through the military chain of command, including, in this case, decisions to hire contractors to protect military supply lines from enemy attack.”111 In Fallujah, Blackwater argued, its men “were performing a classic military function—providing an armed escort for a supply convoy under orders to reach an Army base—with an authorization from the Office of the Secretary of Defense.”112 Because of this, Blackwater argued, it should be immune from any liability: “Any other result would amount to judicial intrusion into the President’s ability to deploy a Total Force that includes contractors.”113

  In an indication of how great other war contractors viewed the stakes in the Fallujah lawsuit, KBR—the Pentagon’s largest contractor in Iraq, with revenues from its work there totaling $16.1 billion114—filed an amicus curiae brief in support of Blackwater in September 2006. In filing the brief, KBR identified itself as “the Department of Defense’s largest civilian provider of worldwide ‘Stability Operations’ logistical support services.”115 KBR backed up Blackwater’s Total Force argument, asserting that the purpose of the LOGCAP program “is to facilitate Stability Operations by integrating military logistical support contractors like KBR into the US military’s Total Force. KBR functions as a ‘force multiplier’ by performing mission-critical services, such as the driving of military supply convoys. Such services formerly were provided only by uniformed military personnel, but in every respect continue to operate under the direction and control of U.S. military commanders.”116

  From the start, the Blackwater lawsuit was viewed as a precedent-setting case on the role of and legal framework governing private forces in U.S. war zones. Blackwater enlisted no fewer than five powerhouse law firms to assist in its efforts to have the case dismissed or moved to federal court.117 Lawyers for the four families believed they would have a more favorable playing field in state court, where there was no cap on damages and the families would not need a unanimous decision to win.118 In October 2006, Blackwater hired one of the nation’s heaviest-hitting lawyers to represent it—Kenneth Starr, the independent counsel in the 1999 impeachment of President Bill Clinton over the Monica Lewinsky sex scandal.119 Starr’s name first appeared in connection with the case in Blackwater’s October 18, 2006, petition to U.S. Chief Justice John Roberts, asking him to put the state case on hold while Blackwater prepared to file its petition for writ of certiorari, which if granted would have allowed Blackwater to argue its case for dismissal before the U.S. Supreme Court, dominated by Republican appointees. Starr and his colleagues argued that Blackwater was “constitutionally immune” from such lawsuits and said that if the Fallujah case were allowed to proceed, “Blackwater will suffer irreparable harm.”120 In the eighteen-page petition to the Supreme Court, Blackwater argued that there are no other such lawsuits against private military/security companies in state courts “because the comprehensive regulatory scheme enacted by Congress and the President grant military contractors like Blackwater immunity from state-court litigation.”121 On October 24, Justice Roberts simply wrote “denied” on Blackwater’s application, providing no reasoning for his decision. In late November 2006, over the objection of Blackwater’s lawyers, Wake County Superior Court Judge Donald Stephens ordered the state case against Blackwater to proceed.122 A month later, Starr and his colleagues appealed to the U.S. Supreme Court to hear the case, arguing that allowing it to proceed in state court “exposed U.S. civilian contractors carrying on their Defense Department-mandated operations in hostile territory to the destabilizing reach of fifty state tort systems in this country. . . . relegat[ing] civilian contractors serving in profoundly dangerous circumstances to the vagaries of a Balkanized regime of conflicting legal systems among the several States.”123 In December 2006, two years after the filing of the wrongful death lawsuit against it, Blackwater filed a claim against the estates of the four men killed in Fallujah seeking $10 million, charging that the families had breached their loved ones’ contracts with Blackwater, which stated the men could not sue the company.124 Attorney Callahan called the action “a meritless claim aimed at disrupting the families’ pursuit of justice.”

  After more than two years of losing legal battles in the case and with the high-stakes trial on the verge of commencing, Blackwater engaged in some deft eleventh-hour legal maneuvering. In May 2007 the company’s lawyers persuaded a senior federal judge in North Carolina to order the case into closed-door arbitration, which Blackwater argued was the only legitimate forum for the case under the contracts the four slain men had signed with the company. The decision of the private panel of three arbitrators would be binding, and an appeal of their decision would be unlikely if not impossible. “Anyone who supports the rule of law should be encouraged to see the written agreement finally being honored and the dispute heading to arbitration as the parties agreed,” Blackwater spokesperson Anne Tyrrell declared.125 A Blackwater lawyer boldly proclaimed, “The state court action is over.”126 This arbitration scenario would mean that there would be no public trial, limited discovery and witnesses, and that the decision could be kept secret with a gag order imposed on the parties involved. As of spring 2008, the families’ lawyers were fighting the decision. “Blackwater has attempted to move the examination of their wrongful conduct outside of the eye of the public and away from a jury,” Callahan and Miles said in a statement. “Blackwater is trying to wipe out the families’ ability to discover the truth about Blackwater’s involvement in the deaths of these four Americans and to silence them from any public comment.”127

  As this case made its way through the legal labyrinth, Blackwater regularly switched legal teams and introduced new arguments and attempts to beat the case before it could make its way to trial. In January 2008 Blackwater lashed out at Wiley Rein, the firm that originally represented the company in the Fallujah suit. Blackwater sued the firm for malpractice; if the attorneys had done their job, the company asserted, the “lawsuit would have been dismissed and the litigation involving plaintiffs would have ended.”128 Blackwater sought $30 million in damages. Wiley Rein said the claim was without merit.

 
Given the uncounted tens of thousands of Iraqis who have died since the invasion and the multiple U.S. sieges in Fallujah that followed the Blackwater incident, some might say this lawsuit was just warmongers bickering. In the bigger picture, the real scandal wasn’t that these men were sent into Fallujah with only a four-person detail when there should have been six or that they didn’t have a powerful enough machine gun to kill their attackers. It was that the United States had opened Iraq’s door to mercenary firms whose forces roamed the country with apparent impunity. The consequences of this policy were not lost on the families of the four slain Blackwater contractors. “Over a thousand people died because of what happened to Scotty that day,” said Katy Helvenston-Wettengel. “There’s a lot of innocent people that have died.” While the lawsuit didn’t mention the retaliatory U.S. attack on Fallujah that followed the Blackwater killings, the case sent shockwaves through the corporate community that has reaped huge profits in Iraq and other war zones. At the time the lawsuit was filed, more than 428 private contractors had been killed in Iraq with U.S. taxpayers footing almost the entire compensation bill to their families. By February 2008, the U.S. Department of Labor adjusted the figure to 1,123 contractors killed and over 13,000 injured. “This is a precedent-setting case,” said attorney Miles. “Just like with tobacco litigation or gun litigation, once they lose that first case, they’d be fearful there would be other lawsuits to follow.”129

  CHAPTER FIFTEEN

  THE CRASH OF BLACKWATER 61

  U.S. ARMY Spc. Harley Miller made his way out of the mangled wreckage of Blackwater 61, a turboprop plane that minutes earlier had slammed into Baba Mountain, 14,650 feet high in Afghanistan’s Hindu Kush mountain range. He passed the two other soldiers who had been on the flight with him, both dead from the impact and still strapped into their seats. The twenty-one-year-old Miller was suffering from injuries just a shade less severe than those that had killed them. Miller was all alone on the snow-covered mountain, 2,000 feet below its peak. The two pilots—Blackwater contractors—had been ejected 150 feet in front of the plane after its 400-foot skid and had died from the impact. The body of the aircraft’s engineer rested just outside the plane’s bulkhead.1

  Specialist Miller smoked a cigarette; urinated twice, once near the rear of the aircraft and once near the front; and unrolled two sleeping bags. He propped a metal ladder up against the fuselage, possibly so he could climb on top of it to call for help or to gauge his location. He lay down on the makeshift bed, suffering from massive internal bleeding, a broken rib, lung and abdominal trauma, and minor head injuries. Miller’s injuries would be compounded by the lack of oxygen and the frigid temperatures, and after more than eight hours alive and alone atop Baba Mountain, the crash claimed its final casualty. It would be three days before his body was recovered.2

  The November 27, 2004, crash of Blackwater 61, a privately owned plane on contract with the U.S. military, would attract scant media attention, mostly sugary obituaries in the hometown papers of those killed. While Blackwater had already become a familiar name because of the Fallujah ambush a few months earlier, the crash itself, a small speck of inaccessible wreckage in the rugged mountains of Afghanistan, was a nonstory. It could scarcely have created a more opposite impression than that of the iconic killings in Fallujah. There were no gruesome images broadcast internationally and no declarations from the White House. It was, for all practical purposes, a minor tragedy in what had become—at least in the eyes of the media—a secondary, if not forgotten, war in Afghanistan. But the crash would nonetheless become a serious legal problem for Blackwater, for this time, unlike in Fallujah, there was an official paper trail.

  The U.S. Army’s Collateral Investigations Board and the National Transportation Safety Board generated hundreds of pages of documents as they investigated the crash. A black box captured the final moments of the flight. Unlike in Fallujah, some of the victims of the incident were active-duty U.S. soldiers, and those who caused the deaths, even if not intentionally, were private contractors. On the surface, it would seem that with the exception of Blackwater being involved in both incidents, the crash atop Baba Mountain and the Fallujah massacre had little in common.

  The similarities, though, began to reveal themselves after the families of the three U.S. soldiers killed in the crash filed a wrongful death lawsuit on June 10, 2005. In fact, the issues surrounding the crash would prove to be much the same as those surrounding Fallujah, though they would draw far less attention. The families of the soldiers killed in the Blackwater 61 crash alleged that the company had cut corners, sidestepped basic safety procedures, and recklessly caused the deaths of their loved ones in the process.3 At the center of the case, as in that of the Fallujah lawsuit, was once again Blackwater’s claim that its forces were immune from any lawsuits because the company was part of the U.S. “Total Force” in the war on terror.4

  Blackwater’s aviation division, Presidential Airways, has largely operated off of the public radar, though its aircraft overseas have frequented the same airports as those used in the CIA’s extraordinary rendition program.5 Blackwater’s pilots are required to have the same security clearances as those involved in renditions. David P. Dalrymple, the Bagram site manager for Presidential, said, “I, and all other Presidential personnel serving in Afghanistan, possess or are in the process of obtaining ‘secret’ or higher security clearances from the United States Government.”6 The company also asserted that it “holds a US DoD Secret Facility Clearance.”7

  The contract that Blackwater 61 operated under in Afghanistan had been inked in September 2004, just two months before the crash.8 After three months of negotiations, the Air Force agreed to a $34.8 million contract for Presidential Airways to provide “short take-off and landing” (STOL) flights in Afghanistan, Uzbekistan, and Pakistan.9 Presidential agreed to fly six regularly scheduled daily routes to small airfields throughout Afghanistan, and other flights as needed. It was estimated that Presidential’s three aircraft would fly about 8,760 hours per year under the contract.10 “With this contract, [Blackwater Aviation] has extended its reach out of Iraq and is providing much needed assistance to US Service men and women in Afghanistan and further into the southern countries of the former Soviet Union,” Blackwater boasted in October 2004 in its Tactical Weekly newsletter.11

  John Hight, Presidential’s director of operations, explained that the company based its bid on its “experience operating in and out of unimproved landing strips and work for the military carrying sky divers.”12 Once the company got word that its bid was successful, Hight said he started recruiting “experienced CASA pilots” for the Afghanistan missions. Five days after the contract was signed, “we arrived in Afghanistan with our first aircraft,” Hight recalled.13

  But, experienced or not, flying in Afghanistan is substantially different from flying in most of the United States. Afghanistan is crisscrossed with mountain ranges that tower above even the highest point in the continental United States, which is California’s Mt. Whitney at 14,495 feet. By contrast, Afghanistan’s highest point is nearly 25,000 feet. Pilots also faced an additional hurdle in that there was limited communication with other aircraft and no air-traffic control to guide planes should they encounter a thick patch of clouds or other bad weather, which experts said could be incredibly variable in Afghanistan. This could cause serious problems very quickly because flights were often piloted using “visual flight rules”—in other words, pilots were on their own with little more than instinct and common sense to guide them. As one Blackwater pilot put it, “The flight crews know that if you can’t get over it or under it, then you turn around and come home. There’s no pressure to get the flight complete.”14

  While some bases in Afghanistan—like those at Kabul, Bagram, and Shindad—had ground control towers, others did not. Basically, according to Presidential’s pilots, “once the aircraft are twenty miles out of radar coverage, they are on their own.”15 Flying in Afghanistan was low-tech to the point where pil
ots often had to use satellite phones to report their locations when they landed anywhere but the most frequented areas, and even the satellite phones often proved unreliable.16 Aside from the impracticality of flying set routes, pilots also “don’t want to fly set routes for force protection reasons”17—fear of being targeted by antioccupation or “enemy” forces.

  Taken together, the weather, visual flight rules, threat of enemy fire, light turboprop aircraft with varying cargo and passenger loads, and extreme elevations made for a difficult combination even for experienced pilots. In essence, the Afghan skies were an unpredictable frontier. Indeed, all of Blackwater’s flights in the country were piloted using visual flight rules. “Therefore there were no prescribed routes of flight to and from Bagram or any of the other locations which we supported other than the sound aviation practice of flying as direct a route as possible while avoiding terrain and weather,” said Paul Hooper, the site manager for Presidential. “Common practice was to fly the most direct route possible. Terrain, weather and a desire to avoid establishing a flight pattern in an environment with hostile ground forces, were some reasons our flight crews varied the specific ground track of each flight.”18