That’s just what they did. One convoy had already been sent toward the airport by a different route. Another sent on the same route
had turned around, though these drivers didn’t know why. Now it
was their turn. It was late morning by the time the mile-long convoy
of about 25 trucks drove out the gates of Camp Anaconda in a cloud
of dust and headed west.
As they passed the broken-down shacks and rundown buildings
along the freeway, it was eerily quiet. “It started out smooth going,”
recalls Stannard, a lanky 49-year-old with a ruddy face and an old Marine Corps tattoo on his right forearm. Then, about 20 minutes into the
trip, the scene changed. “We started seeing our trucks on fire,” he says,
describing KBR tractor-trailers in flames along the road.
As they reached a stretch in the road where several overpasses cross
the highway, “we saw women dropping what looked like buckets of cement on the trucks,” says Stannard. Then he heard the staccato racket of
gunfire. “I heard Zimmerman [Tommy Zimmerman, another driver] on
the radio, saying, ‘My truck is breaking down,’ and I could hear rounds
popping off.” Next he heard Tommy Hamill, the convoy commander, say
he’d been hit. “I knew we were in trouble now,” Stannard says.
Within seconds Stannard’s truck was under fire, too. So were the
trucks in front of and behind him, the gunfire now steady. “We were
taking so many rounds, they were hitting fuel tankers. Fuel was spilling
out everywhere.”
Sanchez, a former Navy mechanic built like a wrestler, was driving
the fourteenth truck in the convoy that day. “It was like spaghetti,”
he says, describing how fuel was spurting in streams out of the bullet
holes that riddled their tankers. “Bill Bradley [another driver] yelled
for help twice. That was the last I ever heard from him.” Soon another driver was yelling that he was on fire, begging not to be left to
die in Iraq. Calls for help over the radio were the last that Sanchez
and Stannard heard from seven of the KBR drivers that day. Those
screams, the sounds of the gunfire, and the memory of watching fellow driver Steven Fisher bleed to death in the Humvee that rescued
them still haunt them.
It was April 9, 2004—Good Friday. In what came to be known as
the Good Friday massacre, some 300 Iraqi insurgents attacked the
KBR convoy for hours with mortar rounds, automatic gunfire, improvised explosive devices, and rocket-propelled grenades. Six American
drivers were killed, 14 were wounded, and another remains missing.
He is presumed dead, though his death has never been officially acknowledged by KBR.
Death in a war zone is nothing unusual. But the deaths of American
civilians working for private companies contracting with the U.S. military is a relatively new phenomenon. The current war in Iraq has involved more outsourcing of what used to be military functions than any
previous war in American history. More than 160,000 civilians (some
American, many from other countries) now work to support the U.S.
government in Iraq and Afghanistan. They do everything from guarding U.S. officials and dignitaries to trucking fuel, food, and other supplies to military bases—jobs that used to be done by soldiers. More
than 1,000 private civilian contractors (including 110 KBR employees)
have been killed in Iraq, and another 13,000 have been wounded.
Employees of private military companies like KBR know going into
it that driving in Iraq isn’t the same as hauling a rig through cornfields
in Iowa. But when these men signed up for the job, which paid roughly
$1,500 a week—about double what they were earning at home—they
were promised that they wouldn’t be participating in military opera-
tions or driving in combat zones. They’d be in armored civilian cars or
guarded by the U.S. military. Their safety, they were told, would not be
compromised. In 2004, after the U.S. government had declared victory, recruiters were offering drivers an opportunity to “Work in Rebuilding Iraq and Earn $60,000 to $200,000 Per Year Guaranteed!” As
one Internet advertisement promised: “Full 24 hour a day U.S. military
protection will be in place to insure safety. With new heightened security you’ll be 100% safe.” A KBR manager later confirmed the promise
to his staff: “There is not one thing that we do that is worth injury to an
employee.”
Why and how those commitments to KBR’s employees apparently
unraveled on April 9, 2004, is now the subject of a controversial and
critically important suit. In May 2005 Ray Stannard and Edward Sanchez, along with seven other drivers who survived the massacre—and
relatives of those who didn’t—sued KBR and its then parent, Halliburton Company. (Kellogg Brown & Root was a subsidiary of Halliburton
until last year, when it changed its name to KBR.) They’ve also sued
the Cayman Islands–based subsidiary of Halliburton that hired them,
as well as the recruiting companies that published the help-wanted advertisements. The plaintiffs claim that the drivers were fraudulently induced into believing they would not be sent into active combat zones,
only to be sent out on a route where KBR knew the drivers were likely
to be attacked.
“KBR had internal information that it was going to be attacked that
day,” says Christina Fountain, a partner at Lopez McHugh in Newport
Beach, California, who is representing the plaintiffs in the case, Fisher
v. Halliburton/KBR. “This was a road that was in battle, in active combat, and Halliburton/KBR knew it,” adds cocounsel T. Scott Allen, a
partner at Cruse, Scott, Henderson & Allen. He represents the plaintiffs from Houston, where the case was filed.
There is plenty of evidence to support the plaintiffs’ claims. But at
this point, thanks to the arguments of KBR lawyers from McKenna
Long & Aldridge, the facts are irrelevant, at least as a legal matter. In
September 2006, shortly after KBR hired McKenna to take over the
case from longtime KBR counsel Jones Day, the federal district court
in Houston dismissed the case, declaring it nonjusticiable. McKenna
partners David Kasanow and Raymond Biagini convinced the court
that the case raises a political question beyond the competence of the
federal judiciary.
The plaintiffs have appealed that decision to the U.S. Court of Appeals for the Fifth Circuit. But if the district court’s decision stands, it
will mean that the actions of virtually any military contractor working
for the federal government could be deemed beyond the authority of
the courts—and immune from American law.
Indeed, that’s the sort of argument that lawyers representing private
military companies like KBR, CACI International Inc., and Blackwater
are already making in courts across the country. As the war in Iraq and
hostilities in Afghanistan leave a growing number of dead and wounded
civilian employees, a new set of legal issues is confronting the lawyers
who defend the contracting companies. “Issues that involve the intersection of contracting and military operations—contracting in a military, hot, or active theater, where contractors are performing work or
providing services that look a lot like what the military provides—that’s
where it’s particularly interesting now,” says E. Sanderson Hoe, who
heads McKenna’s government contracts group. “You have contractors
providing security, carrying weapons, doing things the military also
does. From a practitioner’s standpoint, that’s new for most of us.”
When they signed on, drivers were told they wouldn’t be participating in military
operations or driving in combat zones. “There is not one thing we do that is worth
injury to an employee,” a manager said. But that commitment unraveled.
