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KBR to Contractors: Yours Is Not Question Why, Yours is But to Do or Die

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It is once again time to look at KBR's legal battles. Today we take a look at the case of Reggie Lane in the Fisher, Lane v. Halliburton, KBR litigation.

You can find relevant documents at the website of Fibich, Hampton & Leebron, L.L.P, which is one of the law firms representing Mr. Lane. See here.

This is a case which has been cited in many other law suits, mainly because the courts have seen fit not to dismiss the suit, thus weakening the traditional contractor defense, i.e., the "political questions" doctrine.

That doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the executive branch." That has traditionally been taken to mean that issues stemming from the battlefield are supposedly outside the court's jurisdiction.

But in recent times courts have decided it is within their mandate. KBR lost several pretrial attempts to dispose of the Fisher, Lane v. Halliburton case (the most recent in March 2010).

Rather than go to trial, KBR has appealed all of its rejected defenses to the Fifth Circuit. According to Joe Melugin, an attorney at Fibich, Hampton & Leebron, who has worked closely with lead counsel T. Scott Allen, Jr., of Houston, Texas, the brief was filed with the Fifth Circuit on Oct. 27, 2010. On November 9 the Court made its redacted version publicly available.

What follows are some excerpts from the brief. According to Melugin, "The attached brief and record excerpts bring together (perhaps better than any previously filed publicly available documents) the facts, evidence and testimony which clearly show that KBR and its managers were fully aware that they were sending our clients to their deaths and they did it anyway."

As this is a pretrial appeal, many facts are in dispute. However, two vital facts are no longer disputed: (1) KBR had the unilateral authority to stop its drivers from participating in convoys and was not subject to the once-alleged "plenary control" of the military, 1 and (2) KBR managers unanimously expected April 9, 2004 to be the single worst day of attacks on civilian convoy drivers.

KBR claimed to be subject to the Army's plenary control. However, Judge Miller determined the evidence proves otherwise. R 2185 ("[KBR] argue[s] that they were under the plenary control of the Army, that the convoys went out according to strict protocols, and that they did not have the authority to refuse to send a convoy. However, this argument finds support in neither the terms of the LOGCAP contract itself, nor the practice of the parties at the time."). KBR even conceded this fact in the final hearing prior to Judge Miller's February 8, 2010 order. R 2161. This concession marked a departure from KBR's previous claims to this Court. Lane v. Halliburton, 529 F.3d 548, 561 n.5 (5th Cir. 2008).

Given the following material it is understandable why KBR tried so hard to keep this brief under seal. Reading it one can only think of the phrase "depraved indifference" when reading how KBR exposed its drivers to fatal danger.

Once upon a time it appears that KBR actually took seriously keeping its contractors safe.

KBR assembles a team of Security Professionals

In 2003, George Seagle became KBR's top Security person in the mideast. Seagle led KBR's _____ All Security personnel would report to Seagle, who reported to Chief Operating Officer Tom Crum.

Seagle and his Security Department warned the company of the deadly consequences of sending the truck drivers out on the road the day they died. LOGCAP Operations came under the authority of KBR's Program General Manager ("PGM"). The 2003 PGM, John Downey, took safety seriously. He authorized every employee in the company to call a halt to any activity that the employee believed to be unsafe:

The LOGCAP Safety Philosophy is simple . . . There is not one thing that we do that is worth injury to an employee. Each of you has my personal authority to stop any activity, which you believe to be unsafe.

This memo became company dogma. KBR provided copies and read it to all orientation attendees.

However, in February 2004, KBR replaced John Downey as Program General Manager with recently retired Army General Craig Peterson. Although Peterson paid lip service to the safety philosophy ,under his authority KBR practiced an irreconcilably different philosophy: "if the military pushes we push."

Indeed, KBR pushed very hard.

Early April 2004 saw the worst fighting since the invasion. On April 1, KBR's COO ordered Craig Peterson to heed the views of the Security Department:

But Peterson and his subordinate Keith Richard had different ideas. On April 2, Security's Rex Williams issued a "Threat Update Document." It noted more sophisticated attacks on convoys and an expected surge of violence for the coming weekend: Good Friday (April 9) through Easter Sunday.

It included a map and two KBR security calendars. One calendar highlighted (in red) that April 9, 2004 marked the first anniversary of the American liberation/occupation of Baghdad and warned of for April 9. The other calendar highlighted Easter weekend as coinciding with Arabeen, a Shia holy period.

On April 4, Security's Ray Simpson wrote to Peterson's underling Keith Richard (and others) to propose "holding back on moving convoys," while passing along the concerns of another security coordinator, who described coordinated attacks in Baghdad.

Richard copied Peterson to the discussion and sought advice from security manager John Stewart. Stewart replied to all, "Right now our vehicles don't need to be out there."

Meanwhile, Rex Williams reported that attacks in the Baghdad area for the week ending April 3 had climbed by 50% over the previous week.

On April 5, Security tried to stop all drivers from going out. Security's Ray Simpson ordered that there would be "no convoy movement," based on the direction of KBR TTM Security Director Joe Brown. But Keith Richard vetoed Security's order: "This is not a decision Joe or I can make. Only Craig Peterson or Ray Rodon can make this decision."

Brown (with added support from the LOGCAP Security Manager) re-urged his warning, "It is not safe enough for us to move." But Richard spat back that he - not Security - was in charge:

Additionally, Iraq Security Manager John Jones highlighted earlier warnings to Peterson and Richard regarding April 9 before advising, "On the 9th and 10th there will be no travel."

By Wednesday, April 7, it seemed Security was being completely ignored. Regardless, Security's Joe Brown continued to reiterate the warnings about April 9 and 10. Meanwhile, Keith Richard exchanged emails with a friend back home. Responding to a question about his location, and showing his state of mind, Richard wrote:

In the damn war zone. One of my convoy's was hit with 14 mortars, 6 RPG's, 5 IED's and small arms fire. It was a basic ambush. Amazingly no one was injured or killed.

Richard announced he was having a hard time "consciously sending [drivers] out in the line of fire." But Richard followed instructions and "[he had] been given instructions to keep pushing."

Meanwhile, Peterson prepared his superiors: "The rest of this week and next week will be very difficult as there is a national holiday and a regional pilgrimage combined."

Skipping ahead to April 9, 2004, after numerous attacks against KBR convoys had occurred, we have this:

By 10:05 a.m., word spread about the attack on Reedel's convoy. Joe Daniel reported to Keith Richard that Reedel would secure at BIAP and KBR's 10:00 a.m. Situation Report shows Hamill convoy _________

A 10:28 email reports three convoys under attack near the Tampa/Sword junction. Twelve minutes later, KBR announced that the military has designated Tampa as "red" status. Attached to this announcement is KBR's 10:30 Situation Report. The Report shows three convoys (Teddy, Tomaszewski, and Watson) currently under attack in the BIAP area with a fourth (Reedel) having driven through the same combat only minutes earlier, while a fifth (Larvenz) was diverted from Sword to BIAP ____. This report shows the Hamill convoy at Anaconda, still staging, i.e., preparing to leave.

Satellite images verify KBR's situation reports. The Hamill convoy began the day at 7:00 a.m., staging within Anaconda. Between 7:38 and 9:51 a.m., Hamill moved no more than 200 meters, all within Anaconda. By the time Hamill reported his departure at 10:45 a.m., KBR knew at least this:

(1) Henderson convoy was attacked between Anaconda and BIAP.
(2) Reedel convoy was attacked in the BIAP area.
(3) Reedel lost his truck, along with at least six others, in the attack.
(4) At least eight drivers were missing from the Reedel convoy.
(5) Drivers were injured in the Reedel attack.
(6) Teddy, Watson, and Tomaszewski convoys are currently under attack
in the BIAP area.
(7) Larvenz convoy was attacked on Sword and diverted into BIAP for
safety.
(8) Daryl Watson convoy was attacked leaving BIAP.
(9) Reed convoy reported heavy fire between Abu Ghraib prison and
BIAP.
(10) The military has designated Tampa as "red."

Despite this knowledge KBR directed Hamill to lead a convoy of unarmed American civilians--men not allowed to wear camouflage--driving Army green camouflaged fuel tankers into combat. Moreover, as Hamill testified, for all he knew:

It was just a normal day like any other day ... No one from KBR or Halliburton had told me anything that would make me think it wasn't a normal day like any other.

Note: to get the full flavor of what KBR management knew about the dangers its drivers faced and did not do anything about see the public record excerpts from the law suit, which contains numerous internal emails. While this version does not display the full nuance of the original emails, as it lacks the graphic highlights, i.e., changes in font style, size, color et cetera it still makes for compelling reading.