Family of Security Workers Killed in Iraq|Take on Uncle Sam at the 9th Circuit

     (CN) – A shadowy federal policy gave hired guns in Iraq freedom to kill with impunity and created a “lawless environment” that led to the kidnapping and beheading of three security workers, an attorney told the 9th Circuit on Thursday.
     Those three workers were Joshua Munns, John Young and John Coté. William Palmer, an attorney for those men’s families, told a three-judge panel in San Francisco that a different policy prevented the victims’ families from negotiating for their release.
     U.S. State Department officials hindered and blocked them at every turn, violating their constitutional rights in the process, Palmer said
     The relatives sued the government in 2010. Their loved ones had been kidnapped in 2006 in Safwan, Iraq, while guarding a truck convoy as employees for the now-defunct private security firm Crescent Security Group.
     The kidnappers wore Iraqi Police uniforms and were reportedly led by one of Crescent’s own interpreters.
     The families claim that they tried to work with the State Department and the FBI to free the men, but that the kidnappers tortured and beheaded the men after many months of no action.
     Inspiration for the kidnappings came from Coalition Provisional Authority Order Number 17, a since-rescinded policy that gave private contractors broad immunity from Iraqi laws, Palmer said, referring to the order as a “license to kill.”
     The relatives claim to have “heard rumors that the kidnappings and executions may have been motivated by ‘revenge’ for incidents that occurred as a result” of Order 17. They also claim that the government failed to properly supervise Crescent, which allegedly put the men at undue risk.
     After a federal judge dismissed their initial complaint in 2011 for lack of standing, the families added Gary Bjorlin, a former Marine and Crescent employee who claims to be currently seeking work in Iraq, as a plaintiff. They also supplemented their constitutional claims will allegations under the Defense Base Act, the Longshore and Harbor Workers’ Compensation Act, and the War Hazards Compensation Act.
     The trial court dismissed all of those claims as well, finding that the plaintiffs lacked standing to seek injunctive and declaratory relief as to the federal polices, and that the other claims were either “nonjusticiable political questions,” barred by sovereign immunity, or not properly exhausted administratively.
     Thursday’s oral arguments before Judges Stephen Reinhardt, Marsha Berzon and Raymond Fisher centered largely around standing issues, including whether Bjorlin could still be harmed by Order 17 now that it has been rescinded.
     “Obviously they have a very big problem,” Judge Berzon said to Palmer, the plaintiffs’ attorney. The plaintiffs’ “relatives died, and it’s not going to happen again. … Is there any theory in the world on which they get injunctive relief?
     Palmer said that Bjorlin faced a “lawless environment” created by the policy if he’s able to find work in Iraq in the future.
     “In general, as it was interpreted, [Order 17] immunized private security contractors from prosecution,” he said. “The order has been rescinded, but it has never been declared unconstitutional and illegal. It was rescinded, but it could be brought back tomorrow.”
     Justice Department attorney Thomas Byron called Bjorlin’s argument for standing a “someday plan.”
     “He too cannot show a threat of future injury … but he can’t even show a prior injury, as the plaintiff families have,” Byron said. “‘Someday plans’ are not sufficient to satisfy the requirement for standing.”
     Byron argued that there is “no likelihood” that Bjorlin or the families could show a “real injury” with respect to either the validity of Order 17 or the rights of relatives to seek information about kidnapped family members
     Indeed, he explained, there is no State Department policy that prohibits assisting private citizens in kidnapping matters.
     “The State Department makes every effort to assist individuals who may themselves make efforts to free kidnap victims,” Byron said.
     Judge Reinhardt then asked if “families that want to make inquires about their captive and former captive children are free under the policy to make those inquiries?”
     “The private conduct of private citizens is not something that the State Department seeks to prohibit,” Byron said.
     During rebuttal, Judge Berzon asked Palmer if there is a “constitutional right to a defined policy with regards to what happens if you get kidnapped?”
     “There’s a constitutional right to know the terms of your employment and to contract freely,” Palmer answered. “Mr. Bjorlin is in a vacuum in terms of what his employment would require of him.”
     With the last of his rebuttal time, Palmer noted that there have been many books written over the years about private contractors in Iraq, including Steve Fainaru’s 2009 book “Big Boy Rules,” which tells the plaintiffs’ story.
     “This book and all these books discuss that we killed people under this Order 17, this ‘license to kill’ law, that were completely innocent, and that’s the historical view of this country in Iraq,” Palmer said.
     Breaking in, Judge Berzon said, “You’re not claiming that the United States killed these people?”
     “Yes I am,” he said. “Yes. Through Order 17.”

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