From Whitewater to Blackwater
JEREMY SCAHILL & GARRETT ORDOWER | October 26, 2006
Blackwater USA, the private military contractor in the Bush Administration's "war on terror," has a new lawyer working to defend it against a ground-breaking wrongful death lawsuit brought by the families of four of its contractors killed in Iraq. The new "counsel of record" for the North Carolina-based company is none other than former Whitewater investigator Kenneth Starr--the independent counsel in the 1999 impeachment of President Bill Clinton over the Monica Lewinsky sex scandal. Starr was brought in last week by Blackwater to file motions in front of the US Supreme Court in a case stemming from the killing of four Blackwater contractors in the Iraqi city of Fallujah on March 31, 2004.
"I think that Blackwater has brought in Kenneth Starr to somehow leverage a political connection to help them succeed in a case where they can't win on the merits," says Marc Miles, an attorney for the families of the Blackwater contractors. Starr takes over from Blackwater's previous counsel, Greenberg Traurig, the influential Washington law firm that once employed lobbyist Jack Abramoff. "They bring in all these big-time lawyers from nationwide firms with hundreds of attorneys. Blackwater is really painting this David and Goliath picture themselves."
In the lawsuit, originally filed in January 2005 in state court in North Carolina, the families of the men argue that Blackwater cut corners in the interest of profits, and sent the men into Fallujah without proper personnel, armored vehicles and adequate weapons. The men were ambushed, their vehicles burned and their charred bodies hung from a bridge. The incident sparked the first US siege of Fallujah, which resulted in the deaths of hundreds of Iraqis and the destruction of the city.
Since the suit was first filed, Blackwater has fought rigorously in various courts to have the case dismissed or moved to federal court. On August 24 the Fourth Circuit Court of Appeals dismissed Blackwater's appeal, paving the way for a trial in state court in North Carolina. Lawyers for the four families believe they will have a more favorable playing field in state court, where there is no cap on damages and the families would not need a unanimous decision to win.
Starr's name first appeared in connection with the case in Blackwater's October 18, 2006, petition to US Chief Justice John Roberts asking for a "stay" in the state case while Blackwater prepared to file its petition for writ of certiorari, which if granted would allow Blackwater to argue its case for dismissal before the US Supreme Court, now dominated by Republican appointees. Starr and his colleagues argued that Blackwater is "constitutionally immune" from such lawsuits and said that if the Fallujah case is allowed to proceed, "Blackwater will suffer irreparable harm." 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."
Blackwater asserts that its mercenaries, and other private contractors, are part of the US "Total Force" constituting "its warfighting capability and capacity...in thousands of locations around the world, performing a vast array of duties to accomplish critical missions." Therefore, the company says, the only remedy available to the families of security or military contractors killed or injured in Iraq is the federal government's taxpayer-funded insurance program, known as the Defense Base Act. The actual number of private contractors killed in Iraq is impossible to verify because there is no official tally. According to the Labor Department, at least 647 private contractors died in Iraq between March 1, 2003, and September 30, 2006. Under the government insurance program, the maximum death benefits available to the families of the contractors is limited to $4,123.12 a month. The lawsuit against Blackwater could result in much greater payments to the families of the four men killed in Fallujah--but from Blackwater, not US taxpayers. Attorney Miles says that Blackwater has attempted to use the federal Defense Base Act as "essentially insurance to kill."
Citing the numerous court battles Blackwater has lost in this case--from attempting to get it dismissed to fighting for a change of jurisdiction--Starr and his colleagues appealed to Justice Roberts, writing, "This Court is therefore Blackwater's last resort." On October 24 Justice Roberts simply wrote "denied" on Blackwater's application, providing no reasoning for his decision.
This outcome was not unpredictable, and it is not the last appeal Blackwater will make before the Supreme Court. The company is expected to file its full motion for a review of its case at the Court, possibly within days. In their petition, Starr and his colleagues also alluded to a fear that this lawsuit, similar to early tobacco litigation, could send shock waves through the war-profiteering community: "[I]f companies such as Blackwater must factor the defense costs of state tort lawsuits into the overall costs of doing business in support of US 'public works' contracts overseas...American taxpayers will pay more for less operational results." Blackwater has raked in hundreds of millions of dollars a year in federal contracts, and was accused in a 2005 government audit of trying to include profit in its overhead and its total costs, which would have resulted "not only in a duplication of profit but a pyramiding of profit since in effect Blackwater is applying profit to profit."
There are undeniable benefits to having Starr, the US Solicitor General under President George H.W. Bush, represent Blackwater--a highly partisan GOP company--in front of a Supreme Court stacked with Bush appointees. Starr also has a personal connection to Blackwater. Starr and Joseph Schmitz, the general counsel and chief operating officer of Blackwater's parent company, the Prince Group, have both worked closely with the arch-conservative Washington Legal Foundation. Since 1993 Starr has served on the legal policy advisory board of the organization for which Schmitz has frequently acted as a spokesperson and attorney.
In April 2006, in the midst of the battle over whether Blackwater could remove the Fallujah case to federal court, the foundation issued a "legal backgrounder" arguing that "regulating conduct on a foreign battlefield is a matter of foreign affairs where state law should not interfere.... Both the Courts and Congress can play a role...by affording battlefield contractors the procedural protection of removal to a federal venue when faced with a tort action alleging negligence while supporting our Armed Forces overseas." Schmitz, whom Blackwater also listed for the first time as an attorney on the Fallujah case in its Supreme Court filing, is the former Pentagon Inspector General once responsible for overseeing companies operating in Iraq, including Blackwater. He left the Pentagon in 2005 amid mounting accusations that he stonewalled investigations.
Stephen Gillers, a professor of legal ethics at New York University, says that the fact that Starr is a "Republican lifelong supporter of the party and perhaps even a friend of some of the justices is not going to help" in the case. (In the 1980s, Starr served with Justices Antonin Scalia and Ruth Bader Ginsburg on the US Court of Appeals for the District of Columbia.) "Ken's Republican credentials and his friendships are not going to help him in this court," Gillers says. "What's going to help them is their respect for his intelligence and his creativity in trying to persuade them to do what his client wants." Despite Blackwater's new high-profile lawyer and the conservative dominance of the Supreme Court, attorney Marc Miles predicts that Blackwater's appeals will be rejected and that ultimately the company will face trial. "The real irreparable damage to Blackwater is that the truth will come out," Miles says. Starr did not immediately return calls requesting comment.
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