{"id":425518,"date":"2010-03-14T03:35:16","date_gmt":"2010-03-14T06:35:16","guid":{"rendered":"http:\/\/opiniojuris.org\/?p=11634"},"modified":"2010-03-14T03:35:16","modified_gmt":"2010-03-14T06:35:16","slug":"us-government-contractors-battlefield-tort-liability-and-the-political","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/425518","title":{"rendered":"US Government Contractors, Battlefield Tort Liability, and the Political"},"content":{"rendered":"

by Chris Jenks <\/em><\/strong><\/p>\n

The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the U.S. Army’s Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity.<\/em><\/p>\n

On March 8th, the Supreme Court “invited” the Solicitor General to file\u00a0a brief in Carmichael v. Kellogg, Brown & Root (KBR)<\/em>, a case pending a\u00a0certiorari decision by the Court.\u00a0 Carmichael involves the application\u00a0of the political question doctrine (PQD) to government contractor tort\u00a0liability on the battlefield, an issue which extends well beyond just\u00a0this case. <\/span><\/p>\n

In May, 2004, Sergeant (SGT) Keith Carmichael was a military escort and\u00a0passenger in a KBR tractor-trailer in Iraq when the contractor employee\u00a0driving lost control of the vehicle, which plummeted into a ravine.\u00a0 SGT\u00a0Carmichael suffered severe injuries — his wife filed suit on his behalf.\u00a0The District Court for the Northern District of Georgia initially denied\u00a0KBR’s motion to dismiss, but after two years of discovery the court\u00a0dismissed the case on PQD grounds. The US Court of Appeals for the 11th\u00a0Circuit affirmed that decision, holding that to adjudicate Carmichael’s\u00a0claims would require judicial second guessing of how the military\u00a0conducts war time convoy operations.<\/p>\n

Carmichael<\/em> is one of at least 17 cases in which contractor defendants\u00a0have asserted the PQD as a defense.\u00a0 The lawsuits stem from alleged\u00a0wrongs committed in both Iraq and Afghanistan, and have been filed by\u00a0plaintiffs ranging from former detainees suing contract interrogators\u00a0and interpreters, to contract employees suing contractors following insurgent attacks, to US service members, like SGT Carmichael, suing\u00a0contractors after vehicle and aircraft crashes.\u00a0 One interesting aspect\u00a0of this litigation is that the fundamental aim of the PQD is to address\u00a0whether the judiciary should review government action or decisions — yet\u00a0private contractors are asserting the defense in cases where the US\u00a0government is not a named party and has yet to intervene or submit an\u00a0amicus brief in any of the cases.<\/p>\n

Prior to Carmichael<\/em>, two other federal appellate decisions found that\u00a0the PQD did not preclude battlefield related litigation.\u00a0 In the first,\u00a0McMahon v. Presidential Airways<\/em>, the 11th Circuit considered the crash\u00a0of a Blackwater subsidiary aircraft in Afghanistan, which killed several\u00a0U. S. service members (the crash and subsequent litigation were featured\u00a0on a recent 60 Minutes episode).\u00a0 In the second, Lane v. Halliburton<\/em>,\u00a0the 5th Circuit reviewed suits filed by KBR truck drivers (or their\u00a0representatives) who were injured or killed when insurgents attacked\u00a0their logistics convoy in Iraq in 2004.\u00a0 Yet in Carmichael<\/em>, a convoy\u00a0accident case with no overt combat related factors (IEDS, insurgents, etc.) the same 11th Circuit from McMahon<\/em> held that the PQD applied.\u00a0 One\u00a0way to reconcile McMahon<\/em> and Carmichael<\/em> is the amount of discovery; the\u00a0dismissal in McMahon<\/em> came relatively early on while in Carmichael<\/em> there\u00a0had been two years of discovery.<\/p>\n

While the Supreme Court’s invitation to the Solicitor General does not\u00a0mean the Court will grant Carmichael’s certiorari petition, it would\u00a0seem to make such a grant more likely.\u00a0 The potential outcome may well\u00a0be the court addressing a host of important issues, ranging from the\u00a0separation of powers inherent in the PQD, to the scope of the executive branches’ authority (and responsibilities) in wartime and the\u00a0implications of the US military’s reliance on contractors.\u00a0 Regardless\u00a0of whether the Court hears the case, the first notable event will be\u00a0whether, in a case pitting a severely injured combat veteran against a\u00a0government contractor, the US government accepts the Supreme Court’s\u00a0invitation to submit a brief.\u00a0 If so, it will be the first time that the\u00a0Executive branch makes its views known on whether and how the PQD\u00a0applies to government contractor tort liability on the battlefield.<\/p>\n","protected":false},"excerpt":{"rendered":"

by Chris Jenks The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the U.S. Army’s Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity. On March 8th, the Supreme Court “invited” the Solicitor General to file\u00a0a brief in Carmichael […]<\/p>\n","protected":false},"author":6204,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-425518","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/425518","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/6204"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=425518"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/425518\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=425518"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=425518"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=425518"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}