Reflections: What is at stake in our Oregon vets’ claims against KBR

Today’s Oregonian includes this thoughtful editorial about what is at stake in our on-going case against KBR for Oregon National Guard Soldiers. I have to agree with the editorial board that what is at issue is more than whether and how KBR will be required to repair the damage done.  In the case, we can only recover money. That money can only be used to fix what can be fixed,  to help where money can provide help, and to make up for all the losses that cannot be fixed or solved with help.

Still the case is wider and deeper and raises questions about war and contracting and profits.

The latest round of revelations indicate that the government agreed to indemnify KBR for financial losses it might incur as a result of its misconduct in performing work under the Project RIO contract.  If that sounds like gobbledygook, maybe it’s easier to explain this way. In addition to the multi-billion dollar payday, KBR wanted and got a taxpayer bailout for whatever harms might be caused by its misconduct.

The legal team representing the soldiers focuses on their needs. We have a court room and a trial. We are traveling around the world to find evidence and get our witnesses. We are digging through tens of thousands of pages of documents. We hold the line and fight KBR when it seeks immunity or special treatment.  At trial we will put on the evidence, make our arguments and then leave it to the jury to deliberate and decide.

Meanwhile, it is good that Oregonians are asking these questions. Better still, our journalists and thinkers and our Congressional delegation have their teeth into their respective parts of this tragedy. That is good as well, as no one wants our vets to go quietly into the night.

Addendum (2 Sept 2010): Here is a video report on KGW8 News that ran yesterday. Nice to see that Rep. Blumenauer is on this.  For those who say Congress does nothing, you better believe that the Oregon vets appreciate the efforts made by Sen. Wyden, Sen. Merkley, Rep. Blumenauer, and Rep. Schrader.

60isthenew40 says

Please repost Bixby v KBR Epic Play List under name of: 60isthenew40.

Epic Playlist for Class Action Bixby v KBR & ds et al (September 02, 2010)

Act II - Scene 1

Redemption Song – Bob Marley

Let it Rain – Eric Clapton

Wonderful Remark – Van Morrison

War of Man – Neil Young

Goon Squad – Elvis Costello

Testimony – Robbie Robertson

We Will Rock You – Brian May

Let ‘Er Rip – Dixie Chicks

The Word Justice – Jackson Brown

I Still Haven’t Found What I’m Looking For – U2

Many Are Called –The I Threes (Marcia Griffiths, Rita Marley, Judy Mowatt)

One Belief Away – Bonnie Raitt

Spanish Bombs – The Clash

Like A Rolling Stone – Bob Dylan

Streets of Philadelphia – Bruce Springsteen

Stay on The Battlefield – Sweet Honey In the Rock w/ poetry by Sonia Sanchez

Don’t Ever Let Nobody Drag Your Spirit – Eric Bibb

Knockin’ On Heaven’s Door- Bob Dylan

Hear Me Lord – Oliver Mtukudzi (recorded by Bonnie Raitt)

I Am A Patriot – Jackson Browne

Don’t Give Up – Phil Collins

Whole Earth Chant – Paul Winter Consort

Natural Beauty – Neil Young

Brothers in Arms – Mark Knopfler & Dire Straits

Silver Arrow – Robbie Robertson

Keep Me In Your Heart – Warren Zevon & Jorge Calderon

Us and Them – Pink Floyd

The Silence of A Candle - Paul Winter Consort

I Grieve – Phil Collins-

Ride Across The River - Mark Knopfler & Dire Straits

Presence of the Lord – Eric Clapton, Phil Collins & Blind Faith

Whole Earth Chant – Paul Winter Consort

And So It Goes – Maya Angelou/Roberta Flack

Have a Little Faith In Me- John Hiatt

Warning Sign – Coldplay

My Hometown – Bruce Springsteen

Teach Your Children Well – Crosby, Stills, Nash & Young

Get Up Stand Up – Bob Marley & Peter Tosh

Please repost Bixby v KBR Epic Play List under name of: 60isthenew40

60isthenew40 says


David Isenberg - 08/29/2010 11:09 PM HUFFINGTON POST.

The most important word in the phrase PRIVATE SECURITY CONTRACTORS is "PRIVATE." If and when someone working for a PSC does something wrong the company, depending on the offense, may very well fine him, ship him home, and fire him. But they will do nothing more. They can't, as they rightfully point out ...

Isenberg writes: “Now it is true that PSC and private military contractors have to act, at least theoretically, in accordance with all sorts of laws both nationally and internationally, as well as regulations and directives from government departments (State and Defense in the case of the United States) as well as lots of contract language spelled out in the Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulations (DFAR)

Still, without the political will of the United States to act there can be no individual criminal accountability.

This, as it happens is the point made in a law journal article published earlier this year. Specifically, the article by AMANDA TARZWELL, PUBLISHED IN THE SPRING 2009 issue of the OREGON REVIEW OF INTERNATIONAL LAW.


In her article "IN SEARCH OF ACCOUNTABILITY: ATTRIBUTING THE CONDUCT OF PRIVATE SECURITY CONTRACTORS TO THE UNITED STATES UNDER THE DOCTRINE OF STATE RESPONSIBILITY" MS. Tarzwell offers an alternative means of analyzing the unlawful conduct of PSCs: the doctrine of state responsibility.

As opposed to individual criminal responsibility, the doctrine of state responsibility holds a state accountable to another state. The doctrine dictates that "[e]very internationally wrongful act [IWA] of a State entails the international responsibility of that State."

In 2001, the International Law Commission (ILC) adopted the Articles on the Responsibility of States for Internationally Wrongful Acts (Articles), representing the culmination of more than forty years of work on the issue.

Although the Articles were never formally adopted in treaty form, they are largely a codification of customary international law regarding state responsibility.

There are potentially two legal tests for measuring attribution of a private individual or group: the overall control test applied in MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA, and the effective control test set forth in PROSECUTOR v. TADIĆ.

Research suggests that the overall control test offers the only viable means of attaching liability to the United States for the unlawful conduct of PSCs. By applying the overall control test, the unlawful conduct of PSCs in Iraq is attributable to the United States, and thereby invokes U.S. responsibility to Iraq.

It doesn't take a rocket scientist to see why this is very important.

If a state was faced with the prospect that all of a sudden the rest of the world was going to find it responsible and culpable for wrongdoings by PSC headquartered in its country one can bet that the current woeful state of government oversight of PSC would magically improve at warp speed.

The alternative in MS. TARZWELL view, is:
Without a strong legal basis for attributing such conduct to the state, countries will continue to outsource their dirty work with impunity.

However, if a state can be held legally responsible for the unlawful conduct of PSCs, any incentive to use PSCs for illegal purposes is effectively eliminated.

In the same way that the doctrine of respondeat superior provides a powerful financial incentive for corporations to behave, the doctrine of state responsibility can serve a similar function on the international level.

Although Ms. Tarzwell is writing about PSC in Iraq her analysis is relevant to any situation in which states employ private actors to operate outside the law.

Who Are You Calling Objectionable?

David Isenberg - 07/14/2010 07:29 AM.

Almost since the moment the FIRST PRIVATE SECURITY CONTRACTOR (PSC) emerged , many commentators have been going to great efforts to try and stick them with the "M" word, i.e., MERCENARY.

While there have been, and sometimes still are, connections and linkages between mercenaries and private security contractors ...

60isthenew40 says

Oregon Review of International Law. Spring 2009 •
Volume 11 • Number 1.

Conduct of Private Security Contractors to the
United States Under the Doctrine of State
Responsibility. AMANDA TARZWELL*.

*New England School of Law, 2009; B.A. International & Intercultural Studies, Goucher College, 2006.

The author was a Comment and Note Editor on the New England Law Review and clerked for Judge Ekaterina Trendafilova at the International Criminal Court in The Hague, during law school.

Amanda is admitted to practice in both Rhode Island and Massachusetts. Employed with Abigail Williams & Associates 340 Main Street, Suite 330
Worcester, MA 01608 specializing in in Medical Malpractice and Personal Injury.

David Sugerman says

Thanks 60. As for the playlist, my theme
song for this case is Tom Petty, "I Won't Back Down." The state responsibility doctrine isn't at issue here and won't be. We are here to hold KBR accountable for their conduct.

Comments for this post are closed.