Former Army Specialist Winston Hencely says that the private military contractor firm is responsible for the injuries he sustained prior to a Veterans’ Day 5k run at Afghanistan’s Bagram Airfield.
According to court documents, Specl. Hencely confronted Fluor employee and former Taliban member Ahmad Nayeb about his presence on the base. It turns out that Nayeb was wearing a suicide bomb vest. Specl. Henceley tackled Nayeb and the bomb detonated well away from the 5k starting area. Also according to the lawsuit, Fluor failed to properly supervise Nayeb, and as a result, he had access to bomb-making materials.
A separate Army investigation found that Fluor was partially at fault. Investigators concluded that Fluor knew Nayeb was at the airbase at that time and did nothing to remove him.
The Tangled Web of Anti-Insurgency Campaigns
This lawsuit has implications well beyond injury compensation to an individual. If courts rule that Fluor was negligent in this case, the ruling could affect the relationship between the DoD and private military contractors. One reason that the government uses these groups is that they are more flexible and responsive to changing conditions. If courts impose additional requirements, such a ruling could erode that advantage.
The controversy over Ahmad Nayeb is by no means a one-off affair. Side-switching and recriminations are not uncommon in anti-insurgency campaigns.
In fact, the entire Afghanistan War is predicated upon side-switching. In the 1980s Afghan-Soviet war, the Taliban and other Islamic militants were essentially Cold War proxies for the United States. Washington could not directly blunt the Soviet invasion of Afghanistan without triggering a world war. But the CIA could covertly fund Islamic militants who would fight the Red Army in the place of American servicemembers.
As it turns out, the massive assistance that Washington funneled to groups like the Taliban might have been short-sighted. Once the Soviets left and the Americans lost interest, the various militant groups wrestled with each other for control of Afghanistan. The ultra-conservative Taliban eventually came out on top. Later, the group offered shelter to Saudi dissident Osama bin Laden as he plotted revenge against the country he blamed for undermining Saudi sovereignty in the wake of the Gulf War.
Recriminations are common, as well. Robert McNamara, the former Defense Secretary to Presidents Kennedy and Johnson, may be one of the best examples. McNamara was an early proponent of escalation in Vietnam. In 1961 and 1962, he ardently supported placing American combat troops in-country and radically stepping up the bombing campaign of North Vietnam. But as the war dragged on into the mid 1960s, McNamara’s perspective changed. He advocated de-escalation as President Johnson supported escalation. Since the two did not see eye to eye, Johnson transferred McNamara to the World Bank.
That was not the first time McNamara made hard choices during wartime. In World War II, then-Army Air Corps Lieutenant Robert McNamara urged his boss, General Curtis “Bombs Away” Lemay, to abandon high-level strategic bombing of Japan. In its stead, Lemay began an incendiary bombing campaign which reduced many Japanese cities to ashes.
Apropos of nothing, Lemay showed little remorse for that campaign in later years, even though he admitted it might have been a war crime. During combat, “there are no innocent civilians,” he said in 1989. “It is their government and you are fighting a people, you are not trying to fight an armed force anymore. So it doesn’t bother me so much to be killing the so-called innocent bystanders.”
Earlier, in 1965, Lemay also supposedly said that President Johnson should tell the North Vietnamese “they’ve got to draw in their horns and stop their aggression or we’re going to bomb them into the Stone Age.” He later backed off those remarks, claiming that he had been misquoted.
A much more recent example of side-switching in an anti-insurgency campaign is unfolding before our eyes. In 2015, university student Hoda Muthana left her home in Alabama and went overseas to marry an ISIS fighter. Now, the so-called ISIS bride wants to return to the United States, but officials in Washington are not sympathetic. “I don’t get the heartstrings deal,” Secretary of State Mike Pompeo said during one interview. “This is a woman who inflicted enormous risk on American soldiers, American citizens. She’s a terrorist. She’s not coming back to our country to pose a threat.
Private Military Contractor Legal Responsibilities
Employers, especially in war zones, definitely have a responsibility to hire the right kinds of people, make sure they have the proper training either at the time of employment or prior to their deployment, and supervise them closely in-country. A failure to do so is arguably negligence. Did that negligence cause Spcl. Hensley’s injuries? That’s a separate question, and as outlined below, one that injured private military contractors fortunately do not need to address.
In the United States, these companies also operate under a series of legal restrictions. For example, most private military contractors only perform defensive or non-combat assignments, such as guarding supply convoys or serving as translators.
Injury Compensation Available
No matter what capacity they serve in, contractors are at significant risk for injury while they are overseas. These injuries include:
- Trauma injuries, like falls or gunshot wounds, and
- Occupational diseases, like hearing loss or repetitive stress disorder.
In either case, the Defense Base Act pays for medical bills, lost wages, physical therapy, and other economic expenses. While injured victims do not have to show fault, there are some required showings in court.
The injury must occur in a war zone. The Defense Base ACt basically defines a war zone as any country that has at least one U.S. military outpost.
Furthermore, there must be a nexus between the deployment and the injury. A nexus is not the same thing as a direct connection. For example, if a contractor is at a civilian market during off-hours and a car bomb injured the victim, the DBA still applies even though the injury was not directly related to the contractor’s job duties.
Contact Barnett, Lerner, Karsen, Frankel & Castro, P.A. for more information about the DBA benefits which are available.