Supporting the Troops: Making Them Sick

Numerous returning veterans have reported leukemia, lymphoma, congestive heart problems, neurological conditions -- all of which they attribute to burn pits on dozens of U.S. bases in Afghanistan and Iraq.
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The biggest portion of U.S. private military contractors has always been, by far, on the logistics, not the weapons bearing security side.

These contractors deliver fuel and supplies, construct bases, prepare meals at the DFAC (Dining Facility), clean laundry, provide interpreters, and a host of other unglamorous but vital jobs.

Most of the time they do it very well, under very difficult conditions. Many of their supporters herald this as an unprecedented achievement in American military history. Such a view has long been the sound bite for which Doug Brooks, head of the International Peace Operations Association, a leading industry trade group, is best known for, i.e., "We have the best supported, supplied military in any military operation in history." Indeed, if you search online for Doug Brooks and that phrase you get 1,400,000 hits.

That is why this article in the Los Angeles Times earlier this week grabbed my attention. It described how numerous returning veterans have reported leukemia, lymphoma, congestive heart problems, neurological conditions, bronchitis, skin rashes and sleep disorders -- all of which they attribute to burn pits on dozens of U.S. bases in Afghanistan and Iraq.

Items burned in the pits have included medical waste, plastics, computer parts, oil, lubricants, paint, tires and foam cups, according to soldiers and contractors.

The Pentagon operates at least 84 burn pits in Iraq and Afghanistan, according to Rep.
Timothy H. Bishop (D-N.Y.), who cosponsored legislation last fall that prohibited burning hazardous and medical waste unless the military showed it had no alternative. The law also requires the Defense Department to justify burn pits, develop alternatives and improve medical monitoring.

What does this have to do with private military contractors? Well, simply put, military contractors burned nearly every bit of waste from military bases

Military leaders originally saw the pits as temporary, the simplest way to dispose of trash before troops quickly exited Iraq. But as the war continued, they burned because it saved money, according to subsequent lawsuits, allowing U.S. contractors to avoid having to install costly incinerators.

It is KBR (formerly Kellogg, Brown & Root) which ran the pits. Last October a class action suit combining 22 lawsuits from 43 states was filed in US District Court in Maryland against KBR, Halliburton, and other military contractors for damages to health from open air burn pits in Iraq and Afghanistan. According to plaintiffs' lawyers KBR had been paid millions of dollars to safely dispose of waste on bases but negligently burned refuse in open pits, spewing toxins, including known carcinogens, into the air.

What was KBR's defense? Earlier this month it sought to challenge its liability for any ensuing problems. According to KBR's press fact sheet on the suit, the Army, not KBR, decides if a burn pit or an incinerator will be used, where it will be built in relation to living and working facilities, and what it can burn. KBR insists it was and is still just "performing under the direction and control of military commanders in the field." In short, they were only following orders. Where have we heard that before?

Now, none of this new. The admirable Ms. Sparky blog has long chronicled KBR's misdeeds in this and other areas.

Still, it is a blatant blemish on the otherwise often commendable performance of private contractors that it is still going on. I am sure that Doug Brooks and IPOA don't think that increasing the risk that a returning veteran will contract lung cancer or cardiovascular disease is what they have in mind when they say the American military is the "best supported" in history.

I noted in a January post that an article published last fall in Military Law Review contests legal popular wisdom that the "political question doctrine" means that tort claim cases by military members and U.S. civilians injured in Iraq and Afghanistan must not proceed.

A more recent article "Revisiting and Revising the Political Question Doctrine: Lane v. Halliburton and the Need to Adopt a Case-Specific Political Question Analysis for Private Military Contractor Cases" in the Mississippi College Law Review examines Lane v. Halliburton, a decision handed down in the Fifth Circuit reversing three decisions by the United States District Court for the Southern District of Texas [KBR's corporate offices are in Houston] which dismissed as nonjusticiable [meaning not appropriate or proper for judicial consideration or resolution ] political questions three suits, brought by former employees of KBR and their survivors for injuries sustained as a result of the alleged negligence and fraud of KBR.

The article concludes:

The judiciary has returned to an earlier era and begun strongly favoring judicial review once again. After all, a majority of the Supreme Court has only found two cases that constitute a political question since Baker. The Court has not ruled on a PMC case, but the Fifth Circuit's decision in Lane 2 falls in line with the re-emerging trend of favoring judicial review.

The need for predictability in this area is great. In fact, one of the rationales for political question treatment in PMC cases - i.e. that adjudication would require judging the Executive branch's policy of using military contractors, and thus would lead to the demise of PMCs - is actually undercut by a body of case law that is so unpredictable. It is generally understood that businesses prefer the known to the unknown, whether the known is good or bad, because it allows for proper planning.

KBR performance, or lack thereof, on the burn pits should be considered with respect to the argument that private military contractors make, namely that they are more efficient than the public sector counterparts. Efficiency in the free enterprise marketplace is, at least in part, based on competition. KBR has been and still is part of the Army's Logistics Civil Augmentation Program (LOGCAP). But as Martha Minow wrote in the edited work Government by Contract: Outsourcing and American Democracy, published last year, there is no real competition for the initial award, and there is also a serious constraint on the effectiveness of subsequent monitoring because the government cannot afford to terminate the contract. Second, the private contractor's employees cannot be fully monitored or controlled because they lie outside the hierarchical structure that is so central to military discipline, and are thus exempt from many of the rules that constrain military personnel. Third, legal and moral norms can never be fully imposed on private contractors because private firms lack the democratic accountability of public agencies.

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