Thursday, October 11, 2007

Dickinson on Tort Liability for Military Contractors

My colleague Laura Dickinson, who is writing a book called Outsourcing War and Peace, has an interesting post on Balkinization about tort liability for military contractors.  Click here for the post. She explains that there are three types of suits that might be brought:

(1) suits brought by troops who’ve been injured by a contractor (an example here would be Carmichael v. KBR, 450 F. Supp. 2d 1373 (N.D. Ga. 2006), filed after a soldier suffered massive injuries in Iraq when the truck he was escorting, owned and operated by KBR and Halliburton, overturned in a ravine in Iraq); (2) suits brought by contractor employees (an example here would be the suit brought against Haliburton for deploying convoy as a decoy in an area the contractor allegedly knew to be under attack); (3) suits by third parties who’ve been injured by contractors (an example here would be the pair of cases brought by Abu Ghraib victims against CACI, Inc. and Titan Inc., the firms that provided interrogators and translators at the prison), see Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (2005); Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006).

For purposes of this blog, the most intriguing  categories of cases are suits by third parties and employees.  Suits by Iraqis could be the next big human rights mass tort action, though the litigants may face jurisdictional problems -- remember the Bhopal suit against Union Carbide dismissed for forum non conveniens in the mid-80s?  Whether such suits survive such a challenge will depend on a lot of factors, including the state of the Iraqi legal system.   Dickinson also explains that such suits might be dismissed on either political question or immunity grounds.  She convincingly argues that the political question rationale is dubious.  The contractor immunity defense may have more teeth, but she reminds us, it was rejected in the most recent iteration of In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 85-90 (EDNY 2005).

Addendum:  CCR and two lawfirms have already filed suit on behalf of Iraqis harmed by Blackwater employees under the ATCA.  A press briefing and link to the complaint can be found here.


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