Global Policy Forum

Gun? Check. Radio? Check. Lawyer? Check!

The Defense Base Act is a US law that covers private contractors who are injured on military bases overseas. Lawyers also cite the Defense Base Act to protect private military firms from lawsuits by their workers. Lawsuits range from sexual harassment to liability for willful misconduct. For example, when the families of seven dead drivers sued KBR for sending the drivers into an Iraqi battle zone knowing that they would be injured, lawyers protected KBR under the Defense Base Act. In this article, David Isenberg examines the lucrative partnership between lawyers and private military companies.

By David Isenberg

January 20, 2012

Some things just seem to go together: day and night, bread and butter, Romeo and Juliet, Abbott and Costello, Crosby and Hope, Batman and Robin, Bugs Bunny and Daffy Duck, Cheech and Chong, Sonny and Cher, Beavis and Butthead and sharks and suckerfish (remora) for example. In light of that last pair, another symbiotic pair is private military and security contractors and lawyers.

When historians try to calculate the various benefits that the past decade of privatized contingency operations has brought, one hopes they won't forget to include the huge number of billable hours that various law firms representing various plaintiffs and defendants have amassed. Firms like KBR, Blackwater and DynCorp alone have doubtlessly enabled scores of lawyers to pay for their children's education all the way up through doctorates.

For example, earlier this month the security company once known as Blackwater, now Academi, agreed to settle a lawsuit filed by six victims or their families in the Sept. 16, 2007 shootings in Baghdad's Nisoor Square, an incident that remains a lightning rod over the use of private contractors in war.

According to Charlotte, North Carolina law firm Lewis & Roberts, who represented the victims in this case, the lawsuit was the "last active civil suit stemming from the incident," in which five Blackwater guards were accused in 14 deaths of civilians.

Also this month the U.S. Equal Employment Opportunity Commission (EEOC), announced that DynCorp International, a Falls Church, Va.-based private military contractor and aircraft maintenance company, will pay $155,000 and furnish other significant relief to settle a sex-based harassment and retaliation lawsuit.

The EEOC originally filed suit against DynCorp in August 2011 alleging that from October 2006 through January 2007, James Friso, an aircraft sheet metal/structural mechanic working in Taji, Iraq, was subjected to harassment based on his sex by a male co-worker.

According to the allegations in the EEOC's lawsuit (EEOC v. DynCorp International, LLC), the harassment included daily derogatory sex-based comments, such as accusations that Friso was gay and engaged in homosexual acts, along with descriptions of homosexual acts.

Friso is married, and the co-worker who subjected him to the mentioned comments knew that he is married and is not homosexual. The lawsuit alleged that despite this knowledge, the harasser subjected Friso to the harassment because he did not match the harasser's gender stereotype for a man. Lastly, the lawsuit alleged that Friso complained to DynCorp about the harassment and was thereafter transferred in retaliation for his complaints.

In addition, DynCorp must also take other actions set forth in the consent decree resolving the case, including providing anti-harassment and anti-retaliation training to its managers and human resource personnel and posting a notice about the settlement. Further, DynCorp is enjoined from engaging in further sex-based harassment or retaliation and has agreed to be monitored by the EEOC for the decree's term.

Those with long memories, who can remember the actions of a few DynCorp contractors in the Balkans back in the 1990s, as depicted in the fictionalized movie The Whistleblower to DynCorp's ill-fated dancing boy party in Afghanistan can be forgiven for wondering if DynCorp is run by a lawyer who covertly runs a firm specializing in sexual harassment.

Meanwhile, it was reported that a declassified KBR contract showed that a U.S. 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 last week. The contract is a key point in the federal suit, filed in Texas 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.

Of course, lawyers seem to be a vital took for your average corporate PMSC nowadays. They are vital for the defense and fiscal health of a company. Consider the recent news that KBR and its former corporate parent, Halliburton, 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.

As Bloomberg News reported the U.S. Court of Appeals in New Orleans 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 was sued in 2005 by the families of seven drivers killed while working in Iraq for the company. The company appealed a 2010 lower-court ruling that jurors could weigh the companies' actions without second-guessing the actions of the Army.


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