By MARY FLOOD
Dec. 17, 2009, 7:16PM
US supply convoy in Iraq
A Houston judge is in the spotlight as he has to decide who could have stopped a military contractor truck convoy in Iraq before six civilian truck drivers were killed and others injured in a 2004 ambush.
U.S. District Judge Gray Miller has made this call once before. He decided that the U.S. Army had control over KBR. But an appellate court bounced the issue back to him, and the legal landscape may look different after months of pretrial information gathering.
KBR’s lawyers say nothing’s changed and that company employees could not have stopped a convoy when the Army wanted them to go. They say the cases should be tossed out of court again and not go to trial.
But e-mails, including some only recently unsealed, show KBR employees discussed mounting danger for the convoys in the week before a driver was killed April 8, 2004. Their concern rose that night and the next day as convoys were deployed, then attacked, leaving six drivers dead, 14 injured and one still missing.
And the KBR employees talked about stopping the convoys whether the Army did or not.
“I think the evidence is so overwhelming that KBR had absolute and total control before they left the gate and that’s the decision that put them in harm’s way,” said Tommy Fibich, one of the lawyers in three Houston lawsuits filed by drivers or their survivors. “But we never would have made this case in a million years before computers. E-mails provided us an avalanche of evidence.”
April 9, 2004, was the first anniversary of the day allies in the U.S.-led invasion of Iraq reached Baghdad. KBR did stop convoys the day after the multiple deaths.
Important KBR issue
Internal KBR e-mails from April 8 and 9 suggest many KBR supervisors did not believe they were constrained by military orders — a constraint that is central to KBR’s defense in the federal case. KBR declined to discuss individual e-mails for this story.
Some examples of e-mails on the question of who had the authority to decide whether convoys proceeded:
• “You, your team or any individual (as you have previously indicated to everyone in theater), have the right to say no to anything that is unsafe or where security is not available.”— T.J. Lopez, KBR senior vice president for government and infrastructure.
• “We need to work with the Army without a doubt relative to stopping convoys, but if we in management believe the Army is asking us to put our KBR employees in danger that we are not willing to accept then we will refuse to go . . . We cannot allow the Army to push us or to put our people in harm’s way?…” — Tom Crum, KBR Middle East regional chief operating officer.
• “All — no KBR convoys will move tomorrow, 10th April 04. I will inform the military chain of command.” — KBR supervisor Craig Peterson to employees.
• “KBR will not execute convoys tomorrow, 10 April 04 . . . I appreciate the challenges that this decision causes your operation. We cannot continue to put these drivers at such great risk …” — Peterson to military commanders.
But KBR has said the e-mails don’t tell the whole story.
“In context, the internal communication between KBR and the military evidence the concern KBR had for its employees,” William Bodie, president, KBR North American Government and Defense, said in a letter published in the Houston Chronicle Nov. 20, after the newspaper reported on e-mails indicating KBR was warned about the dangerous days in April 2004.
“The U.S. military alone decided to deploy the military supply convoys at issue here; they decided when, where and how the convoys were to be conducted,” Bodie wrote, echoing the company’s defense in the three Houston lawsuits.
A KBR spokeswoman declined to respond to specific e-mails and other statements the plaintiffs say contradict KBR’s position, saying the company stands by Bodie’s letter and arguments made in court.
Under a multibillion-dollar contract, KBR provides meals, transportation for supplies and other logistical support to the military in Iraq. How much flexibility it had in responding to military requests is central in the lawsuits now before Judge Miller, whose decision could set a precedent for other lawsuits against military contractors.
Defendants in the three lawsuits include KBR and its then-parent company, Halliburton, which spun off KBR in 2007. Miller ruled in late November that Halliburton must remain as a defendant if the case goes forward.
Miller tossed the lawsuits out in 2006, agreeing with KBR that civilian courts are not permitted to second-guess military decisions.
But last year the 5th U.S. Circuit Court of Appeals asked Miller to take another look, saying it might be possible to put the case before a jury without improper analysis of military wartime decisions.
Miller is expected to rule soon on whether he will take the case forward to trial in 2010 or dismiss it again.
Some of the e-mails and other evidence he is reviewing have emerged since his previous ruling and may strengthen the plaintiffs’ argument that KBR could have refused to roll convoys.
Military ‘the customer’
Peter Singer, a Brookings Institution researcher and author of Corporate Warriors: The Rise of the Privatized Military Industry, said he doesn’t see why this is even an issue.
The Army “certainly decided what were the threat levels and the like but in no way shape or form could it force KBR or its employees to go. The worst it could do was threaten to fire or dock payments. The military was the customer, not the commander,” Singer said.
Singer said this ultimate civilian control is the reason he and others are concerned about military over-outsourcing to civilian contractors. He said soldiers don’t have discretion, but civilian contractors do.
“Critical parts of the military supply chain have been turned over to contractors who are not part of the chain of command,” Singer said in an e-mail response to questions about this case. “And thus the supply chain is uncertain, dependent on civilian decision making, not military certainty.”
Another issue in the case goes to whether KBR and its former parent, Halliburton, fraudulently induced the drivers to come to Iraq by understating the dangers.
In his letter last month, Bodie said KBR “takes great care in warning and in training employees about the dangers they will face working in a war zone before they depart for Iraq.”
But plaintiffs note that recruiting materials in late 2003 and early 2004 didn’t tell drivers they would be in combat situations and did say that nothing KBR did would be worth compromising their safety.
Some time after the April 2004 truck ambushes, KBR changed its ads for drivers, noting they might be in a war zone and under hostile fire.
Warnings not assured
Recently disclosed e-mails, however, indicate that supervisors did not always warn truck drivers about the dangers once they were in Iraq.
One example is this e-mail exchange between a KBR employee and the company’s Iraq trucking operation chief on April 17, 2004, barely a week after the major ambushes:
“We have received Intel that a large convoy will be hit. We currently have a large convoy in route to theis (sic) location . . . The escorts are being notified . . . should we notify our drivers also?”
“NO!!!!!!!!!!!!!!!” was the e-mailed response from the trucking chief.
KBR has been sued around the country for a variety of issues involving its contract work for the military, including allegations of rapes, poisoning of workers at a water plant and electrocutions of soldiers in facilities established by KBR.
“KBR basically says once we get you signed up and you come over there, we can do anything we want and we are immune. It doesn’t matter if you’re raped. It doesn’t matter if you’re electrocuted. It doesn’t matter if you’re shot,” said Scott Atlas, a plaintiffs’ lawyer in the truck convoy case. “They treated them like they were a truck or a tire.”
Lawyers for KBR have said that if the case goes to trial and KBR is required to pay damages, it may ask the government to reimburse it. (Click HERE for original article)
The three sentences that stand out to me in this story are – “The escorts are being notified.” “Do you want us to notify our drivers?” “NO!!!!!!!!!!!”
This “NO”, to me seems as though it was “PREMEDITATED”!!!!!!!!!!! This was discussed amongst more than just the person that said “NO”, before it was told to the person who would have notified their drivers. It’s a shame that the conversations-in-person and over the phone, that took place regarding upper-level decision makers about the possibility of a large convoy being hit weren’t recorded for just this type of situation. Someone out there is (to me) holding a lot of information about this and should come forward. I know I would not want to carry testimony that could help these driver’s and victim’s family member’s around with me for the rest of my life without revealing it!!!!!!!!!!!
Someone’s holding back information about this horrible thing, and that is my personal belief!!!!!!!!!!!
KBR always had the ability to say no to a gate exit. Whats so really bad is every person leaving the protection of the base. Could go thru Benning and be qualified with weapons. But KBR makes a fortune for doing their own indoc. KBR aways said never touch a weapon. 1st thing they tell you at Benning is ” If you have worked for another company that told you never to touch a weapon. Forget that crap. If you are threatened you have the right to protect yourself. Pick up a weapon if you don’t have 1 and point it in the direction of the enemy and pull the trigger. They don’t know if you can hit anything or not.” Anyone leaving a base should be prior military or qualified and ARMED!!! No person should be sent out a gate to be murdered.
I agree that our drivers driving outside the wire should be armed. I don’t necessarily think they should be carrying weapons on base, but they shouldn’t be required to drive through hostile territory like a lamb on the way to slaughter.
As far as a weapon is concerned, when I was at USMI-C in yhe Green Zone we had a meeting with security and we were told that there was a high risk of being taken, how it would only take 4 minutes to get you out of the IZ and into another vehicle…………. Then I saw a couple guys get sent home for possession of a knife over 4″ long. Logcap 10 sends….??
Being an unarmed civilian has always been a concern for many. I was in the Green Zone when there were several abduction attempts. We were warned about it on a regular business. Rumor has it, they tried to abduct an Army officer while he was out jogging and he shot them. My job took me all over the Green Zone. I drove by myself a vast majority of the time. I had a soft sided Pajero as my maintenance vehicle. I always knew where the nearest checkpoint was, where the nearest US Military was. I’ve worked construction for 30 years and I’ve always carried an “electrician’s” knife on the job. In Iraq I carried a knife 24/7 clipped to the inside of my pocket. The Kershaw Whirlwind – smooth blade is my favorite electrician’s knife. The blade is not over 4 inches soit is legal and I can handle it well. But to do any damage with a knife of any size means the attacker is way too close! I think they should issue everyone tasers for personal protection. Then we could sit around at night and watch the idiots tase each other after work.
Just so everyone is aware – this was not the contractor’s decission. There was a Special H Clause incorporated in LCIII that prevented contractor personnel from being armed.
It is this same clause that the DOJ is using to file suit against KBR to recover the cost of the subcontractors hiring Private Security Services.
The CAP personnel and other civilians did not have this restriction.