Dispatches from the Culture Wars

There are two grounds for dismissal, both of them utterly hypocritical. First, they argue that because the crash took place in Afghanistan the court should apply Afghani law - Sharia law - in the case. And guess what that law says? It says that companies shouldn't be held responsible for the actions of their employees. Seriously:

Primarily, however, the policy interests of Afghanistan must be considered as it is undisputed that it is the place where the injuries occurred. Further, the alleged negligent conduct, from the planning and scheduling of the accident mission to the alleged operational errors, took place in Afghanistan. Accordingly, Afghanistan's law must be given preference pursuant to the wrongful death rule...

And here they explain what Afghani law is based on and what it says:

Afghan law is largely religion-based and evidences a strong concern for ensuring moral responsibility, and deterring violations of obligations within its borders. A jurisdiction has a substantial interest and paramount responsibility to protect the welfare of persons within its borders. Accordingly, Afghanistan has a great interest in ensuring that conduct within its borders complies with Islamic law such that negligent and dangerous actions are deterred by the threat of full responsibility for any consequences...

In most areas of Afghanistan, the Shari'a courts rely to a great extent on Islamic law, as written in the Qur'an, the Sunna, and the Mejelle. The recently codified Afghan civil code is based
on the most important principles of the Shari'a. Under Afghan law, liability attaches to a person when the harm caused is direct and the causation principles are strict. In other words, ordering a person to do something illegal does not make the person making the order liable because there is no causation as to the person giving the order under the Shari'a.

In other words, even though we hired the crew, trained the crew and had them flying under policies we mandated, we have no fault whatsoever. To make things even worse, here's what a footnote in their brief says:

Notably, Afghan law does not limit Plaintiffs' available recovery. Neither would Afghan law preclude a lawsuit for the negligence of the individuals responsible for training, equipment, and operating procedures. Under the law of Afghanistan, Plaintiffs feasibly would retain the ability to litigate their claims against the individuals involved in the allegedly wrongful conduct, and the Plaintiffs feasibly would have the ability to recover for their economic and noneconomic losses.

Translation: Hey, they could still sue the crew that also died along with their husbands.

Now bear in mind here one crucial fact: Blackwater has argued vociferously that their employees absolutely should not be covered under the law of the nations they are operating in pursuant to our government contracts. In the case where one of their employees shot and killed the bodyguard of the Iraqi vice president, did Blackwater let that employee be prosecuted under Iraqi law? Nope. They spirited him out of the country within 24 hours.

And they're arguing that not only can that employee, or the company, not be prosecuted or subject to any civil proceedings under Iraqi law, they're also claiming exemption from American law. And that brings us to the second argument for dismissal and the second instance of stunning chutzpah, detailed by the Charlotte News Observer:

Presidential Airways argued that the lawsuit must be dismissed; legal doctrine holds that soldiers cannot sue the government, and the company was acting as an agent of the government.

Again, bear in mind that Blackwater's position all along has been that its employees are not government agents. If they were, they would have to fall under the Uniform Code of Military Justice (UCMJ). The UCMJ was modified in 2007 so that it might cover private contracts under some circumstances, but as even the National Review noted, the military is not about to prosecute private contractors for any sort of wrongdoing:

Potential is right, but no one in the military is ready to seize the day and exercise their authority over contractors. One JAG officer I spoke to -- who emphasized he was not speaking on behalf of the whole military or offering any explicit legal opinions about the issue -- said trying contractors in military courts is "pretty radioactive."

"I have asked some senior Army prosecutors about it and they laughed and shook their heads about what the prosecution would look like," he said. "I mean nobody wants to be the first to touch it or try to use it, [it's] not expressly a criticism of the extension of jurisdiction itself."

Now Blackwater seems to have had a sudden conversion on the road to Raleigh, finding that - lo and behold - they are under the jurisdiction of the law in whatever country they're operating in and they are under the jurisdiction of American law too. Normally I'd be happy to hear of this conversion, but it's clearly temporary. When those applications of law become inconvenient for them, as they already have in the past, you can be sure they'll abandon them immediately.