Driver Bill Bradley “yelled for help twice,” Sanchez recalls of the attack (below).
“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.
These issues may be new, but lawyers knew they would cause concern even back in 2004, just after the Good Friday massacre. Stannard, Sanchez, and other survivors were sequestered in a converted
meat locker at Camp Anaconda after the incident, instructed by KBR
officials not to speak to the media about what had happened. Later,
as they recovered from their injuries in a Kuwaiti hospital, some of
the survivors, including Stannard, were told that KBR had arranged
for them to receive a military medal of honor. There was only one
catch: They would have to sign a form releasing the company and
the military from liability for what had happened. Paragraph 9 of the
document stated:
I agree that in consideration for the application for a Defense of
Freedom Medal on my behalf that on behalf of myself, my heirs,
executors, administrators, assigns, and successors, I hereby release,
acquit, and discharge and do hereby release, acquit, and discharge
KBR, all KBR employees, the Military and any of their representatives . . . from any and all claims and any and all causes of action,
of any kind or character, whether now known or unknown, I may
have against any of them.
For months, officials from Halliburton and KBR, as well as their
lawyers from McKenna and Jones Day, declined to be interviewed for
this article. It wasn’t until the day before it went to press that Kasanow
agreed to comment on his firm’s legal arguments. Indeed, McKenna
has taken pains to ensure that the facts of the case remain secret, both
by seeking to dismiss the suit, thereby preventing further discovery,
and by convincing the judge overseeing it to file many of the documents, deposition testimony, and other evidence under seal, claiming
that their release could jeopardize national security. The material remains under seal, even though, after reviewing the evidence, the U.S.
attorney’s office and the U.S. Department of Defense decided that
most of it did not involve state secrets or national security concerns and
declined to intervene in the case. Still, the documents that are available
reveal the bumpy road this case has taken and the careful strategy that
McKenna’s lawyers have crafted in an attempt (only partly successful)
to keep the facts of the incident and the question of government contractor liability hidden from public scrutiny.
The case didn’t start out so well
for KBR. The plaintiffs, represented by Fountain and Allen, filed
their first complaint in state court in Houston in April 2005. Allen, a
longtime Texan who usually defends doctors and hospitals in medical
malpractice cases, says he was brought into the case by Ramon Lopez
of Lopez McHugh, whom he’d opposed in a previous matter. (Allen
now calls the KBR litigation “the single most significant case I’ve ever
worked on.”) Jones Day, representing Halliburton and KBR, quickly
had the case removed to federal district court in Houston, where it was
assigned to Judge Nancy Atlas, a 1995 Clinton appointee with a reputation for fairness and efficiency.
Within weeks, the Jones Day team, led by employment partner Katie Colopy, filed a motion to dismiss, claiming the employees’ case was
barred by the Defense Base Act (DBA) and the Federal Tort Claims
