In fighting the lawsuit, Blackwater adopted a three-pronged approach to argue that it should be immune from such litigation: that its operations fall under the realm of a “political question” that must be addressed by either the executive or legislative branches, but not the judiciary; that Blackwater is essentially an extension of the military and thus should enjoy the same immunity from lawsuits that the government does when members of the military are killed or injured; and that Blackwater should be immune from lawsuits under an exception to the Federal Tort Claims Act that has in the past been granted to contractors responsible for the design and manufacturing of complex pieces of military equipment. Other military contractors closely monitored Blackwater’s arguments in the Fallujah and Afghanistan cases, believing that the outcomes would have far-reaching implications for the entire war industry.
The Political Question Doctrine
In its court filings, Blackwater/Presidential cited the “political question doctrine,” which relies on the idea that “the judiciary properly refrains from deciding controversies that the Constitution textually commits to another political branch and cases that are beyond the competence of the courts to resolve because of the lack of judicially manageable standards.”47 Referencing its contention that it was a recognized part of the U.S. “Total Force” and part of the Defense Department’s “warfighting capability and capacity,” Blackwater argued that “allowing civilian courts to consider questions of liability to soldiers who are killed or injured in operations involving contractors on the battlefield would insert those civilian courts directly into the regulation of military operations.”48
This argument was not warmly received by the district court judge in the case. In rejecting Blackwater’s argument, Judge John Antoon cited the 2006 ruling in Smith v. Halliburton Co. That lawsuit accused Halliburton of negligence for failing to secure a dining hall in Mosul, Iraq, that was hit by a suicide bomber on December 21, 2004, killing twenty-two people. Judge Antoon found:
The proper inquiry, according to the court, was whether the claim would require the court to question the military’s mission and response to an attack. If the military was responsible for securing the facility, resolving the matter would require “second-guessing military decision-making” and evaluating the conduct of the military—a political question. However, if the contractor was primarily responsible for securing the dining hall under its contract, the suit would be justiciable. Concluding that “there is a basic difference between questioning the military’s execution of a mission and questioning the manner in which a contractor carries out its contractual duties,” the court foreshadowed the conclusion drawn here: the former situation presents a political question, while the latter does not.49
Judge Antoon determined that because Blackwater 61 was “required to fly as [it] normally would, according to commercial, civilian standards, in a foreign, albeit treacherous, terrain” and could refuse to fly any mission they felt was too dangerous, “it does not appear . . . this Court will be called on to question any tactical military orders.”50
The court ultimately rejected Blackwater’s “political question” argument, saying it was “not a proper basis for dismissing this case.” Antoon also questioned Blackwater’s contention that it was essentially part of the military, pointing out that the federal government could have filed a brief supporting Blackwater in this case but had not. “Notably, the United States has not chosen to intervene on behalf of Defendants in this case,” the judge wrote.“ It has declined an opportunity to intervene and explain how its interests might be affected by this lawsuit.”51
While rebuking Blackwater, the judge did seem to indicate that these situations could change for contractors in the future. “The extent to which for-profit corporations, performing traditional military functions, are entitled to protection from tort liability is an area of interest to the political branches.”52
The Feres Doctrine
In arguing that it is immune from tort litigation, Blackwater cited the Feres Doctrine, which holds that the government has sovereign immunity from tort suits for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”53 Blackwater argued that “it is inconsequential here that the decedents died in aircraft hired by the Air Force, rather than in an aircraft operated by the Air Force—what matters is that they were military personnel who died while on war duty.”54 Blackwater alleged that even the families of the dead soldiers admitted their loved ones “(1) were deployed to Afghanistan, (2) died in a combat zone, and (3) did so while being transported on a DoD mission between two airfields in Afghanistan.”55
Judge Antoon clearly took issue with Blackwater’s interpretation of a fairly straightforward immunity granted to the military, pointing out that Blackwater’s lawyers “cite no case in which the Feres doctrine has been held applicable to private contractors.”56 He said Blackwater/Presidential “essentially mask their request for this Court to stretch Feres beyond its established and logical bounds by citing cases which emphasize that it is the plaintiff’s status as a member of the military and not the status of [Blackwater] that is significant.”57 The judge concluded, “Clearly, Defendants in this case are not entitled to protection under the Feres doctrine because they are private commercial entities. . . . Defendants entered into the contract as a commercial endeavor. They provided a service for a price. Simply because the service was provided in the mountains of Afghanistan during armed conflict does not render the Defendants, or their personnel, members of the military or employees of the Government.”58 In other words, Antoon determined that though the Pentagon might have referred to private military contractors as part of its “Total Force,” that did not change Blackwater’s status as a for-profit private company responsible for its actions.
Exception to Federal Tort Claims Act
Blackwater’s third major argument for immunity from tort lawsuits was that, as a military contractor, it is immune from such litigation in the same way that certain producers of complex military equipment have been found immune. In one case, the family of a dead Marine sued a manufacturer for defects in its design of a helicopter escape system. The court concluded that “state tort law was preempted by the government’s profound interest in procuring complex military equipment” and that the government had the “discretion to prioritize combat effectiveness over safety when designing military equipment.”59
Judge Antoon decided that although that defense exists and it has been extended in some instances, there is no “authority for bestowing a private actor with the shield of sovereign immunity. Until Congress directs otherwise, private, non-employee contractors are limited” to exceptions like that involving the design of complex equipment. “This Court is skeptical that the combatant activities exception to the [Federal Tort Claims Act], which preserves the Government’s traditional sovereign immunity from liability, has any application to suits against private defense contractors,” Antoon wrote. “To the extent that it does apply, however, at most it only shields private defense contractors for products liability claims involving complex, sophisticated equipment used during times of war. It has never been extended to bar suits alleging active negligence by contractors in the provision of services, and it shall not be so extended by this Court.”60
Blackwater’s Curious Aviation Division
In late September 2006, Judge Antoon denied every single motion made by Blackwater to stop discovery and dismiss the case, and, as expected, Blackwater immediately began the appellate process. While Antoon decisively rejected Blackwater’s claim that it is in effect an extension of the U.S. military because of its claimed status as part of the Pentagon’s “Total Force,” Blackwater may actually have been far more intertwined with the workings of the military and intelligence agencies than it would ever let on.
While what little attention that has been paid to Blackwater’s aviation division has focused on the Afghanistan lawsuit, the company has multiple contracts
with the U.S. government to provide pilots and aircraft. Information on the use of Blackwater’s planes by the government is difficult to obtain, but it has been well documented that U.S. intelligence agencies and the military have used private aviation companies to “render” prisoners across the globe, particularly under the Bush administration’s “war on terror.” Under this clandestine program, prisoners are sometimes flown to countries with questionable or terrible human rights records, where they are interrogated far from any oversight or due process. To avoid oversight, the government has used small private aviation companies—many with flimsy ownership documentation—to transport the prisoners. “Terrorism suspects in Europe, Africa, Asia, and the Middle East have often been abducted by hooded or masked American agents, then forced onto a Gulfstream V jet,” wrote investigative journalist Jane Mayer in The New Yorker magazine. The plane “has clearance to land at U.S. military bases. Upon arriving in foreign countries, rendered suspects often vanish. Detainees are not provided with lawyers, and many families are not informed of their whereabouts.”61 While there is nothing directly linking Blackwater to extraordinary renditions, there is an abundance of circumstantial evidence that bears closer scrutiny and investigation.
The rendition program was not born under the Bush administration but rather during the Clinton administration in the mid-1990s. The CIA, with the approval of the Clinton White House and a presidential directive, began sending terror suspects to Egypt, where, far removed from U.S. law and due process, they could be interrogated by mukhabarat agents.62 In 1998, the U.S. Congress passed legislation declaring that it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”63 After 9/11, this legislation was sidestepped under the Bush administration’s “New Paradigm,” which stripped alleged terror suspects of basic rights.64 This thinking was best articulated by Vice President Dick Cheney five days after 9/11, when he argued on NBC’s Meet the Press that the government should “work through, sort of, the dark side.” Cheney declared, “A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.”65 These sentiments were echoed by the CIA’s number-three man at the time, Buzzy Krongard—the man allegedly responsible for Blackwater’s first security contract in Afghanistan—who declared the war on terror would be “won in large measure by forces you do not know about, in actions you will not see and in ways you may not want to know about.”66
The U.S. use of clandestine aviation companies dates back to at least the Vietnam War. From 1962 to 1975, the CIA used its secretly owned airline Air America (which simultaneously functioned as a commercial airline) to conduct covert or secretive operations that would have sparked even more investigation and outrage if made public. “Air America, an airline secretly owned by the CIA, was a vital component in the Agency’s operations in Laos,” according to a paper on the CIA Web site written by University of Georgia history professor William M. Leary. “By the summer of 1970, the airline had some two dozen twin-engine transports, another two dozen short-takeoff-and-landing (STOL) aircraft, and some 30 helicopters dedicated to operations in Laos. There were more than 300 pilots, copilots, flight mechanics, and air-freight specialists flying out of Laos and Thailand. . . . Air America crews transported tens of thousands of troops and refugees, flew emergency medevac missions and rescued downed airmen throughout Laos, inserted and extracted road-watch teams, flew nighttime airdrop missions over the Ho Chi Minh Trail, monitored sensors along infiltration routes, conducted a highly successful photoreconnaissance program, and engaged in numerous clandestine missions using night-vision glasses and state-of-the-art electronic equipment. Without Air America’s presence, the CIA’s effort in Laos could not have been sustained.”67
In 1975, the Church Committee began investigating the legality of U.S. intelligence-gathering practices. The CIA’s chief of cover and commercial staff told the Senate committee that if an operational requirement like the Vietnam War should again arise, “I would assume that the Agency would consider setting up a large-scale air proprietary with one proviso—that we have a chance of keeping it secret that it is CIA.”68
Decades later, the Bush administration, waging a war many compared to Vietnam, clearly saw the need for a clandestine fleet of planes. Shortly after 9/11, the administration started a program using a network of private planes some began referring to as the “new Air America.” The rendition program kicked into high gear, as the United States began operating a sophisticated network of secret prisons and detention centers across the globe, using the private aircraft to transport prisoners. Most of the planes alleged to have been involved in renditions under the Bush administration’s war on terror were owned by shell companies. In contrast, Blackwater directly owns its aviation division and has been public and proud in promoting its military involvement.
Blackwater Aviation was born in April 2003, as the Iraq occupation was getting under way, when the Prince Group acquired Aviation Worldwide Services (AWS) and its subsidiaries, including Presidential Airways.69 The AWS consortium had been brought together in early 2001 under the ownership of Tim Childrey and Richard Pere, who “focused on military training operations and aviation transport for the U.S. Government.”70 Presidential Airways was the licensed air carrier, and in addition to the Afghanistan contract, it has provided CASA 212 and Metro 23 aircraft for military training contracts, including some for the U.S. Special Operations Command.71 STI Aviation was the maintenance company for the Blackwater fleet. And Air Quest Inc. provided Cessna Caravan planes equipped with aerial surveillance—it provided surveillance planes in 2000 and 2001 to U.S. Southern Command for operations in South America.72
“In addition to offering solutions for firearms training, steel targets and range construction and security needs, Blackwater now offers aviation and logistical solutions for its customers,” Blackwater president Gary Jackson said in announcing the acquisition. The new aviation division “complements our strategic goal of providing a ‘one stop’ solution for all of our customer’s security and tactical training needs.”73
Blackwater also began developing a surveillance blimp that could be used to spy on “enemy” forces abroad or by the Department of Homeland Security to monitor the border.74 In 2004, Blackwater announced plans to move the operations of its aviation division to North Carolina and in 2006 sought approval to build a private airstrip with two runways for its fleet of more than twenty planes.75 “We have a fleet of aircraft that all have customers,” Jackson said. “Every single aircraft has a contract.”76 While the role these planes have played in the war on terror is not clear, Blackwater’s aviation wing fits the patterns of those companies that have been documented to be involved with renditions.
Blackwater aircraft have made stopovers at Pinal Airpark in Arizona, which used to be home to the Air America fleet.77 After public scrutiny forced the CIA to dismantle its fleet and sell the airpark, a company called Evergreen International Aviation, whose board included the former head of the CIA’s air operations, subsequently purchased it.78 As of 2006, Evergreen still owned and operated the airpark primarily as a storage facility for unused aircraft, largely because the desert climate allowed planes to survive longer with less maintenance. Not surprisingly, the company boasted in April 2006 of “four years of consecutive growth.”79
Aside from their stops at Pinal Airpark, Blackwater-owned planes frequented many airports alleged to be implicated in the rendition program. Aero Contractors, which has received much attention recently for its connections to the CIA, was headquartered in Johnston C
ounty, North Carolina, which “was deliberately located near Pope Air Force Base, where the CIA pilots could pick up paramilitary operatives who were based at Fort Bragg [home of the Special Forces]. The proximity to such an important military base was convenient for other reasons, too. ‘That supported our principal cover,’ one former pilot [said], ‘which was, we were doing government contracts for the military, for the folks at Fort Bragg.’”80 Former chief Air America pilot Jim Rhyne founded Aero Contractors for the CIA, and according to one pilot, he “had chosen the rural airfield [Johnston County] because it was close to Fort Bragg and many Special Forces veterans. There was also no control tower that could be used to spy on the company’s operations.”81 Johnston County is just one of the airports frequented by CIA flights, according to experts. “Typically, the CIA planes will fly out of these rural airfields in North Carolina to Dulles,” according to the authors of Torture Taxi.82
A glimpse of the flight records of planes registered to Blackwater subsidiaries Aviation Worldwide Services and Presidential Airways revealed numerous flights that follow these patterns and frequent CIA-linked airports:83
Blackwater: The Rise of the World's Most Powerful Mercenary Army Page 37