Wake County Superior Court is no place to decide how the United States fights its wars, an attorney for a North Carolina security contractor told a federal appeals court Tuesday.
"Is a state court judge going to decide what happens on the battlefield in Fallujah?" asked C. Allen Foster, an attorney for Blackwater Security Consulting, which is being sued by the families of four workers killed in Iraq in 2004 and mutilated in front of television cameras.
A judge replied that some court, whether state or federal, needs to have a say in this unsettled area of the law.
"Courts are going to decide some of that business," said Judge Dennis W. Shedd of the 4th U.S. Circuit Court of Appeals.
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Wesley J.K. Batalona, Stephen "Scott" Helvenston, Michael R. Teague and Jerko "Jerry" Zovko, who were providing security for a Pentagon subcontractor, died March 31, 2004, when insurgents ambushed their convoy. A crowd set the vehicles and bodies afire and defiled the corpses. Two bodies were dragged through the streets and hanged from a bridge, images that became a symbol of the U.S. struggles in Iraq.
The wrongful death suit that their survivors filed in Wake County court in January 2005 claims that Moyock, N.C.-based Blackwater cut corners to save money, leaving the men without enough manpower, maps or crucial equipment such as armored vehicles. Any of those things, the suit says, could have foiled the attackers, who simply walked up behind the SUVs and shot the men.
Blackwater's attorneys say federal law bars such suits, and that the only remedy for those hurt or killed -- even if their employer was at fault -- is workers compensation payments. Dependents of the four dead men are getting $1,100 weekly apiece for life.
The suit has bounced between state and federal courts since it was filed. Blackwater wants the case heard in federal court, where a jury must find unanimously for the plaintiffs. The families want the case in state court, where they can win with nine votes on a 12-person jury. The federal appeals court is expected to issue a decision in several weeks.
The Pentagon and military contractors are watching the first-of-its-kind suit closely because a loss could expose other contractors whose employees died in Iraq -- more than 400 people so far. Legal experts say that U.S. law doesn't fully govern the contractors, and that many questions about how they are regulated will be settled in cases like this one.
In the small audience were the low-profile owner of Blackwater's parent company, former Navy SEAL and multimillionaire Erik Prince, and Joseph Schmitz, the company's chief operating officer and general counsel, formerly the Pentagon's inspector general. Both declined to comment.
Foster told the three-judge panel that the case's potential impact on the nation is so great that it should be heard in federal court. He said the federal Defense Base Act bars such suits against contractors in order to protect the nation's ability to fight overseas.
Marc P. Miles, an attorney for the families, said that case hasn't gone far enough for the 4th Circuit to have enough facts to decide -- his firm hasn't been allowed to gather evidence and depositions from Blackwater. He said the suit would not harm the nation's military endeavors.
The families' attorneys have contended that the Defense Base Act does not apply because the men were not employees of Blackwater, but merely contract employees.
In the contracts that the men signed before taking on the $600-a-day jobs, they signed away any right to sue. The contracts were explicit about the dangers: "being shot, permanently maimed and/or killed by a firearm or munitions, falling aircraft or helicopters, sniper fire, land mine, artillery fire, rocket-propelled grenade, truck or car bomb."
After the hearing, Foster said that contractors will balk at taking on jobs for the military if they are liable for suits, particularly if those suits can be heard helter-skelter in 50 states' courts.
"The military doesn't belong in court, and we want the same treatment or we can't be beside them there on the battlefield," said Blackwater attorney Michael P. Socarras.
This story relied on documents filed with Wake County Superior Court, U.S. District Court (Eastern District of North Carolina) and the U.S. 4th Circuit Court of Appeals.