US Government Contractors, Battlefield Tort Liability, and the Political

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 a brief in Carmichael v. Kellogg, Brown & Root (KBR), a case pending a certiorari decision by the Court.  Carmichael involves the application of the political question doctrine (PQD) to government contractor tort liability on the battlefield, an issue which extends well beyond just this case.

In May, 2004, Sergeant (SGT) Keith Carmichael was a military escort and passenger in a KBR tractor-trailer in Iraq when the contractor employee driving lost control of the vehicle, which plummeted into a ravine.  SGT Carmichael suffered severe injuries — his wife filed suit on his behalf. The District Court for the Northern District of Georgia initially denied KBR’s motion to dismiss, but after two years of discovery the court dismissed the case on PQD grounds. The US Court of Appeals for the 11th Circuit affirmed that decision, holding that to adjudicate Carmichael’s claims would require judicial second guessing of how the military conducts war time convoy operations.

Carmichael is one of at least 17 cases in which contractor defendants have asserted the PQD as a defense.  The lawsuits stem from alleged wrongs committed in both Iraq and Afghanistan, and have been filed by plaintiffs ranging from former detainees suing contract interrogators and interpreters, to contract employees suing contractors following insurgent attacks, to US service members, like SGT Carmichael, suing contractors after vehicle and aircraft crashes.  One interesting aspect of this litigation is that the fundamental aim of the PQD is to address whether the judiciary should review government action or decisions — yet private contractors are asserting the defense in cases where the US government is not a named party and has yet to intervene or submit an amicus brief in any of the cases.

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

While the Supreme Court’s invitation to the Solicitor General does not mean the Court will grant Carmichael’s certiorari petition, it would seem to make such a grant more likely.  The potential outcome may well be the court addressing a host of important issues, ranging from the separation of powers inherent in the PQD, to the scope of the executive branches’ authority (and responsibilities) in wartime and the implications of the US military’s reliance on contractors.  Regardless of whether the Court hears the case, the first notable event will be whether, in a case pitting a severely injured combat veteran against a government contractor, the US government accepts the Supreme Court’s invitation to submit a brief.  If so, it will be the first time that the Executive branch makes its views known on whether and how the PQD applies to government contractor tort liability on the battlefield.