After the suit was filed, the families felt empowered to begin publicly voicing their anger at the company. “Blackwater sent my son and the other three into Fallujah knowing that there was a very good possibility this could happen,” charged Katy Helvenston-Wettengel. “Iraqis physically did it, and it doesn’t get any more horrible than what they did to my son, does it? But I hold Blackwater responsible one thousand percent.”
At first glance, the lawsuit may have seemed like a stretch. After all, the four Blackwater contractors were essentially mercenaries. All willingly went to Iraq, where they would be well paid, knowing that there was a solid chance they could be killed or maimed. In fact, it was all laid out very plainly in their contract with Blackwater in macabre detail. It warned that the men risked “being shot, permanently maimed and/or killed by a firearm or munitions, falling aircraft or helicopters, sniper fire, land mine, artillery fire, rocket-propelled grenade, truck or car bomb, earthquake or other natural disaster, poisoning, civil uprising, terrorist activity, hand-to-hand combat, disease, poisoning, etc., killed or maimed while a passenger in a helicopter or fixed-wing aircraft, suffering hearing loss, eye injury or loss; inhalation or contact with biological or chemical contaminants (whether airborne or not) and or flying debris, etc.”
46
In filing its motion to dismiss the lawsuit, Blackwater quoted from its standard contract, insisting that those who signed it “fully appreciate[d] the dangers and voluntarily assume[d] these risks as well as any other risks in any way (whether directly or indirectly) connected to the Engagement.”
47
Callahan and his legal team did not deny that the men were aware of the risks they were taking, but they charged that Blackwater knowingly refused to provide guaranteed safeguards, among them: they would have armored vehicles; there would be three men in each vehicle (a driver, a navigator, and a rear gunner); and the rear gunner would be armed with a heavy automatic weapon, such as a SAW Mach 46, which can fire up to 850 rounds per minute, allowing the gunner to fight off any attacks from the rear.
48
“None of that was true,” said Callahan. Instead, each vehicle had only two men and allegedly had far less powerful Mach 4 guns, which they had not even had a chance to test out.
49
“Without the big gun, without the third man, without the armored vehicle, they were sitting ducks,” said Callahan.
50
Contract Disputes
The contract the four men were working on the day they were killed in Fallujah was a newly brokered one between Blackwater and the Cypriot-registered company Eurest Support Services (ESS), a division of the British firm Compass Group. As previously discussed, Blackwater had teamed up with a Kuwaiti business called Regency Hotel and Hospital Company, and together the firms had won the job of guarding convoys transporting kitchen equipment to the U.S. military. Blackwater and Regency had essentially won the ESS contract over another security firm, Control Risks Group, and the lawsuit alleged Blackwater was eager to win more lucrative contracts from ESS in its other division servicing construction projects in Iraq.
51
“The ill-fated March 31, 2004 mission was an attempt by Blackwater to prove to ESS that it could deliver the security detail ahead of schedule, even though the necessary vehicles, equipment and support logistics were not in place,” the suit alleged.
52
Like many of the operations of private contractors in Iraq, the mission the four Blackwater men were on that day in Fallujah was shrouded in layers of subcontracts. In fact, determining whom they were ultimately working for remained a source of contention years after the ambush. Initially, it seemed as though the men were operating under ESS’s subcontract with Halliburton subsidiary KBR, which was reported to be billing the federal government for Blackwater’s security services.
53
In the primary contract between Blackwater /Regency and ESS, ESS reserved “the right to terminate this Agreement or any portion hereof, upon thirty (30) days prior written notice in the event that ESS’s is given written notice by Kellogg, Brown & Root of cancellation of ESS’s contracts, for any reason, or in the event that ESS receives written notice from Kellogg, Brown & Root that ESS is no longer allowed to use any private form of private security services [
sic
].”
54
After the Fallujah ambush, KBR/Halliburton would not confirm any relationship with ESS, despite the clear reference to KBR in the contract.
The story became even more complicated in July 2006, when the Secretary of the Army, Francis Harvey, wrote a letter to Republican Congressman Christopher Shays of the House Committee on Government Reform, stating, “Based on information provided to the Army by Kellogg, Brown and Root (KBR), KBR has never directly hired a private security contractor in support of the execution of a statement of work under any LOGCAP III Task Order. Additionally, KBR has queried ESS and they are unaware of any services under the LOGCAP contract that were provided by Blackwater USA . . . the U.S. military provides all armed force protection for KBR unless otherwise directed.”
55
Harvey wrote that the theater commander had not “authorized KBR or any LOGCAP subcontractor to carry weapons. KBR has stated they have no knowledge of any subcontractor utilizing private armed security under the LOGCAP contract.”
56
Testifying in front of the House Committee on Government Reform in September 2006, Tina Ballard, an undersecretary of the Army, said it was the Army’s contention that Blackwater provided no services to KBR.
57
For its part, KBR told the producers of PBS’s
Frontline
program, “[W]e can tell you that it is KBR’s position that any efforts being undertaken by [ESS or Blackwater] when the March 31, 2004, attack occurred were not in support of KBR or its work in Iraq . . . this was not a KBR-directed mission.”
58
KBR also said it was not responsible for supplying kitchen equipment to Camp Ridgeway, the Blackwater contractors’ ultimate destination when they were killed in Fallujah.
59
KBR’s assertions had to be viewed in the context of what the Pentagon’s own auditors found regarding the company’s practices in Iraq. “KBR routinely marks almost all of the information it provides to the government as KBR proprietary data . . . [which] is an abuse of [Federal Acquisition Regulations] procedures, inhibits transparency of government activities and the use of taxpayer funds,” according to an October 2006 report by the Special Inspector General for Iraq Reconstruction.
60
“In effect, KBR has turned FAR provisions . . . into a mechanism to prevent the government from releasing normally transparent information, thus potentially hindering competition and oversight.”
61
In Iraq, Halliburton/KBR has been secretive to the point of not naming its subcontractors.
62
“All information available to KBR confirms that Blackwater’s work for ESS was not in support of KBR and not under a KBR subcontract,” said Halliburton spokesperson Melissa Norcross in December 2006. “Blackwater provided services for the Middle East Regional Office of KBR. This office is not associated with any government contract. . . . These services were provided outside of the Green Zone and were not directly billed to any government contract.”
63
This all raised crucial questions: Whom was Blackwater ultimately working for when it sent those four men on that fateful Fallujah mission? And what was that mission’s official, documented connection to the U.S. military?
These were questions California Representative Henry Waxman, Congress’s lead investigator, had been looking into since November 2004, when reports first emerged on the layers of subcontracts involved with the Fallujah mission. On December 7, 2006, the story took yet another twist when Waxman revealed that he had obtained a November 30, 2006, legal memo from Compass Group, ESS’s British parent company, that asserted ESS had a subcontract under Halliburton’s LOGCAP contract and used Blackwater “to provide security services” under that subcontract.
64
“If the ESS memo is accurate, it appears that Halliburton entered into a subcontracting arrangement that is expressly prohibited by the contract itself,” Waxman asserted in a letter to Rumsfeld, adding that the memo appeared to contradict what Army Secretary Harvey had presented in his July 2006 letter, as well as Undersecretary Ballard’s subsequent sworn testimony. The memo also appeared to introduce another major war contractor into the mix. “The ESS memo also discloses that Blackwater was operating under a subcontract with [KBR competitor] Fluor when four Blackwater employees were killed in Fallujah in March 2004,” according to Waxman. He charged that Blackwater appeared to be “providing security services under the LOGCAP contract in violation of the terms of the contract and without the knowledge or approval of the Pentagon.”
65
Finally, in early February 2007, Waxman was able to get the answer to the question he had been asking for nearly three years. Following the Democrats’ victory in the 2006 Congressional elections, Waxman became chair of the powerful Committee on Oversight and Government Reform and moved swiftly to hold a hearing on the ambush. What the public learned the day of that hearing was that the contract under which the Blackwater men killed in Fallujah were operating was indeed traceable to the largest war contractor in Iraq, KBR.
This was a complete about-face that contradicted many previous claims, including denials from KBR and the military that any such connection existed. Tina Ballard, the Army’s head contracting officer, had assured the same committee six months earlier that Blackwater had not been hired under a KBR subcontract.
But during the February hearing, Ballard said that “after extensive research” it turned out her earlier statements had been wrong. Further, she said that if KBR “knowingly or unknowingly incurred costs for private security subcontractors . . . the US Army will take appropriate steps under the contract terms to recoup any funds paid for those services.”
66
At the end of the hearing, Ballard announced that the Army would dock KBR $20 million now that it was clear that—under several layers of subcontracts—Blackwater had in fact been hired in violation of KBR’s master contract with the military, which stated that only the official military could provide security services.
67
That it took nearly three years to get an answer to one simple question was an ominous commentary on the state of oversight of the mercenary industry in the United States.
At the same hearing, Blackwater attorney Andrew Howell told Congress the company would not turn over its incident report on the Fallujah ambush, saying, “We cannot turn over classified information. It would be a criminal act.” Waxman shot back, “That’s not an accurate statement. We are entitled to receive classified information in this committee.”
68
Waxman subsequently demanded that Blackwater hand over the document to the committee, and a company lawyer responded, “Blackwater lacks unilateral authority to provide the Committee with any classified incident reports.”
69
Waxman, quite understandably, found it outrageous that a private company was telling him, a U.S. House committee chair, that it could not share “classified” information with him. As it turned out, the Congressional investigation found that “none of the documents about the Fallujah incident were classified.”
70
Waxman alleged that Blackwater’s chief operating officer, Joseph Schmitz, “acknowledged to Committee staff that rather than immediately produce the report by the Coalition Provisional Authority to the Committee, he instead hand-delivered it to [the] Defense Department and requested that it be reviewed to determine whether it should be classified. He took these steps even though the report was marked ‘unclassified,’ no portion of it was marked as classified, and neither Blackwater nor its outside counsel had stored it in a classified manner. . . . [Later,] the Defense Department produced the report to the Committee and confirmed that it did not consider this document to be classified.”
71
Waxman alleged that Schmitz did this with another document as well, asking “that it be reviewed for classification purposes” by the Defense Department. The Pentagon informed Blackwater that it too was unclassified. In another instance, Waxman alleged, Blackwater refused to hand over documents under a subpoena and produced them only when “the Committee threatened a vote to hold Blackwater in contempt of Congress.”
72
Blackwater later said it had “obtained the permission” to release the documents by “working with the Executive branch.”
73
“Whores of War”
Regardless of the controversy that later erupted over the various contractual relationships, the original contract between Blackwater/Regency and ESS, signed March 8, 2004, called for “a minimum of two
armored
vehicles to support ESS movements” [emphasis added] with at least three men in each vehicle because “the current threat in the Iraqi theater of operations” would remain “consistent and dangerous.”
74
But on March 12, 2004, Blackwater and Regency signed a subcontract, which specified security provisions identical to the original except for one word: “armored.” It was deleted from the contract. “When they took that word ‘armored’ out, Blackwater was able to save $1.5 million in not buying armored vehicles, which they could then put in their pocket,” alleged another lawyer for the families, Marc Miles. “These men were told that they’d be operating in armored vehicles. Had they been, I sincerely believe that they’d be alive today. They were killed by insurgents literally walking up and shooting them with small-arms fire. This was not a roadside bomb, it was not any other explosive device. It was merely small-arms fire, which could have been repelled by armored vehicles.”
75