Huffpost Business

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

David Isenberg Headshot

KBR Gives Uncle Sam the One Finger Salute

Posted: Updated:

Le's take a brief look at the world of rent a generals. Specifically, Lt. Gen. Sanchez. (USA-Ret.). Gen. Sanchez had a distinguished Army career and honorably served his country. He was the highest-ranking Hispanic in the United States Army when he retired on November 1, 2006.

Those who can remember past yesterday will recall that he served as the V Corps commander of coalition forces in Iraq from June 2003 to June 2004. While his time as commander was not without controversies ( hostile relations with Paul Bremer, torture scandal at Abu Ghraib, development of the Iraq insurgency) I assume he did the best he could.

For most retired officers that would have been enough. But evidently not for Gen. Sanchez. Evidently he felt the need to continue the fight; only now against U.S. civilians and injured veterans.

In February it was reported that the U.S. Army wass trying to stop him from continuing to be an expert for KBR in a lawsuit against it over civilian truck driver deaths and injuries.

Sanchez is being paid $650 an hour and has reviewed documents and written a report that support's KBR's contention it should not be held legally responsible for the deaths of six civilian truck drivers and the injuries of others in a 2004 ambush in Iraq.

The suing drivers and family members contend that KBR should have stopped the convoys when it was warned that attacks would increase on April 9, 2004, the first anniversary of the day allies in the U.S.-led invasion of Iraq reached Baghdad.

KBR argues that the military approved sending the convoys out and several laws protect KBR from responsibility in a wartime situation. The Army contracts with KBR to provide transportation, food services and other logistical support.

In his report for KBR on the 2004 ambush, Sanchez writes that KBR leadership was getting "emotional, hyperbolic, CNN-filtered, open source information, not intelligence" that was warning that the convoys could be ambushed.

Sanchez says no battlefield leader could have known the convoy would be attacked. KBR leadership did stop convoys the day after six civilians were killed and 14 injured in the truck convoy ambush.
But KBR is also fighting law suits regarding the burn pits it operated in Iraq as I have written about here and here. To see KBR's last update to the allegations click here.

KBR apparently thinks Gen. Sanchez has useful advice to offer here, even though I don't recall the general having expertise in chemistry or toxicology.

Nevertheless KBR, to emulate Paddy" Chayefsky's famed movie Network, is mad as hell and is not going to take it anymore. The evidence is contained in Exhibit 40, filed back on Feb. 23. I have put the most pertinet parts in boldface.

It is important to remember that KBR is in this position now because of the conduct of the United States. First, as the Army's own AR 15-6 Report clearly admits, but for the Army's failures in its own processes and procedures on April 9, 2004, the attack, injuries, and deaths associated with the Fisher case would never even have occurred. Second, but for the United States' refusal to support KBR's effort in the Fifth Circuit Court of Appeals to uphold the District Court's 2006 total dismissal of the lawsuits passed on the Political Question Doctrine, there is every reason to believe the Fifth Circuit would have sustained the dismissal.

Instead, KBR (and indeed the United States itself in any future Political Question Doctrine dispute) is saddled with a very troublesome Fifth Circuit standard.'

Accordingly, KBR must be able to present the live trial expert testimony of Lieutenant General Sanchez, and to do so in precisely the form and content in which his report was submitted to the Court. This need was exacerbated by Judge Miller's blatant disregard of the four military declarations submitted in his denial of KBR's Political Question Doctrine motion, making the General's live trial testimony possibly the only evidence that will sway Judge Miller.

Further, his testimony, including his statement reiterating the AR 15-6 Report's admission of Army fault, will provide precisely the type of evidence needed to prove on appeal that these cases should have been dismissed on the basis of the Political Question Doctrine - that is, among other things, the failure to do so caused Army officers to present public criticism of each other at trial!

As we made clear in our original December 4, 2009 request, as a result of his senior military leadership position in Iraq during the relevant time period, Lieutenant General Sanchez has unique relevant expertise that is not available from any other source. As reflected in his report, the General will testify from that expertise about the circumstances in Iraq in April 2004, the Army's prosecution of the war, KBR's logistics support mission, and the actual events up to and on April 8 and 9, 2004 upon which these lawsuits are based. This expert testimony is crucial to KBR's ability to defend itself on key issues such as state of mind, causation, and various affirmative defenses.

Lastly, as you know, throughout the five years of these lawsuits, KBR has carefully refrained from pointing its finger at the United States as the culpable entity. One result of KBR's restraint in this regard has been that plaintiffs in these cases have gained a huge advantage in the public airing of these lawsuits. Plaintiffs have co-opted the Houston media and other press into presenting only the damning evidence plaintiffs allege prove that KBR intended to injure and kill its own employees for profit. As trial looms, KBR can no longer sit silent, and instead intends to aggressively make its case to the public, hopefully to prevent the entire jury pool from being

' We also urge the United States to support KBR in the litigation of these defenses in any appeal that KBR files in these cases.

prejudiced against the company. Towards this end, KBR intends to release Lieutenant General Sanchez's expert report and deposition testimony to the press as part of this campaign.

KBR greatly appreciates the support the Army has provided the company in these (and other) lawsuits. But given the untenable posture of the cases and enormous exposure faced by KBR, we cannot overstate the need for the Army to approve this request for reconsideration, We trust that you will give this matter your full, serious, and immediate attention.

For those who remember Mario Puzo, KBR seems to be channeling the GodFather, and is making a Army thinly veiled offer it can't refuse.

It will be interesting to see who blinks.