Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

I guess it should not come as a surprise to me anymore. However, it still upsets me to see a military defense contractor trying to deflect blame for the damages its negligence caused to members of our military while serving in Iraq or Afghanistan.  In a news item that I didn’t notice until a few days after it broke, Huffington Post reported that the defense contractor, KBR, was found negligent and responsible for the poisoning of a dozen soldiers in Iraq in 2003.  Over 800 members of both regular and reserve units were stationed at an Iraqi water treatment plant to secure it and they were exposed regularly to a dangerous carcinogen called Sodium Dichromate.  The impact on the soldiers and Guardsmen’s negligent exposure to that “extreme carcinogen” was both devastating and deadly.

“Sodium dichromate is an orange-yellowish substance containing hexavalent chromium, an anti-corrosion chemical. To Lt. Col. James Gentry of the Indiana National Guard, who was stationed at the Qarmat Ali water treatment center in Iraq just after the 2003 U.S. invasion, it was “just different-colored sand.” In their first few months at the base, soldiers were told by KBR contractors running the facility the substance was no worse than a mild irritant.  Gentry was one of approximately 830 service members, including active-duty soldiers and members of the National Guard and reserve units from Indiana, South Carolina, West Virginia and Oregon, assigned to secure the water treatment plant, according to the Department of Veterans Affairs.

Sodium dichromate is not a mild irritant. It is an extreme carcinogen. In November 2009, at age 52, Gentry died of cancer. The VA affirmed two months later that his death was service-related.  In November, a jury found KBR, the military’s largest contractor, guilty of negligence in the poisoning of a dozen soldiers, and ordered the company to pay $85 million in damages. Jurors found KBR knew both of the presence and toxicity of the chemical. Other lawsuits against KBR are pending.” Huffington Post  

If you thought that the news was all good and that this negligent defense contractor is being held responsible for its negligence, you may be wrong.  It is now being claimed by KBR in its appeal from the aforementioned judgment that its contract with the Pentagon included an indemnity agreement that allegedly requires the Federal Government to pay any and all claims against it, as well as any legal costs to defend the claims!  Those alleged legal costs alone amount to the princely sum of $15 Million dollars, in addition to the verdict award amount of $85 Million dollars.  If the indemnity agreement claim is upheld by an appeals court, the taxpayers will have to pay for KBR’s grievous negligence that has caused sickness and death to members of our military.

I would love to be able to say “let’s look at the language in the agreement” and determine for ourselves if KBR has a leg to stand on in its appeal on indemnification grounds.  However, that would be too easy because the indemnification language in the defense contract is classified.  You read that right.  The language in the contract that could determine if KBR is responsible to pay for its own severe negligence and its own legal fees is classified and you and I can’t look at it!

Now, I realize that there are good faith reasons at the time of contracting for defense contractors during a time of hostile operations, for some issues to be classified to protect our service members.  If the danger involved in working in war zones is a contributing cause of the negligence and subsequent damages, I can understand a need for some secrecy about the hostile actions that were involved at the time.  Should that veil of secrecy include the legal terms of the contract itself?  Shouldn’t  KBR’s reliance on the alleged indemnity language necessitate that the language be a visible part of the trial and appeal record so that the taxpayers can see for themselves who is fleecing whom?

Of course, the military claims that the indemnity language does not protect KBR.  “A U.S. Army Corps of Engineers contracting officer told KBR in November 2011 that litigation costs “are not covered by the indemnity agreement.  “The public doesn’t know what the indemnity agreement actually says because the military considers it classified. Until recently, the veterans exposed to the toxin couldn’t know either, nor could attorneys at the Department of Justice, who were left battling the contract in the dark, according to a source there.

Michael Doyle, a Houston-based lawyer who helped the successful suit against KBR, told The Huffington Post the military declassified the indemnification agreement on Dec. 21 and gave it to him under a protective order that banned him from sharing the language to parties not involved in the case. John A. Elolf, a spokesman for KBR, confirmed the declassification of the agreement and said the contractor also was prevented from providing a copy. HuffPost has requested the document under the Freedom of Information Act from the Corps of Engineers.”  Huffington Post

The Huffington Post article details the damage KBR’s negligence wrought on our military, and explains how KBR was allowed to allegedly receive an open-ended indemnification agreement.  “It’s unclear how many defense contractors have secret indemnification agreements with the military. Under the law, most government agencies are banned from entering open-ended indemnification agreements, but the Pentagon and a handful of other agencies were exempted in an executive order signed by President Richard Nixon in 1971.”  Just what other defense contractors have the ability to claim that they are indemnified for any and all of their negligence under military contracts?  Are there any current KBR contracts with the Pentagon that still include this alleged indemnification language?  If so, can they be amended or terminated?

There may be some hope for the future because a provision in the recent National Defense Authorization Act of 2013 requires that indemnification language must be disclosed and presented to Congress for review.  We can thank Senator Ron Wyden of Oregon for that language.  My question is who in Congress has to review it and will the public be allowed to see for themselves what companies like KBR are allowed to get away with?  What else should be added to the language to make sure that companies like KBR are not getting away with causing the death and injuries of American personnel without any accountability?  Should KBR be allowed to contract on any military contracts in the future?  Are there any Department of Defense officials who should be questioned how this alleged language was agreed upon?

Now that we know that the Big Banks are too big to jail, are defense contractors too big to make them pay for their negligence?  Military members who fought and answered the call to service can survive the hostile action only to find out that they are slowly dying from a for-profit company’s greed and negligence.  Just who wins these wars when the veterans are getting ill and dying years after the conflict due to a contractors negligence?

Additional references:  Sodium Dichromate;  National Defense Authorization Act of 2013; AlterNet