Justices unsure if military contractor can dodge liability for Taliban attack  

WASHINGTON (CN) — The Supreme Court appeared split Monday on whether a military contractor could use the federal government’s immunity shield to avoid a liability for an attack on Bagram Airfield that killed three U.S. soldiers.

Former Army Specialist Winston Hencely was one of over a dozen U.S. soldiers seriously injured during a 2016 suicide bombing on the military base in Afghanistan. Nearly a decade later, Hencely pushed the Supreme Court let his move forward with a lawsuit against a U.S. contractor, Fluor Corporation, who hired the assailant.

“This ended up injuring multiple U.S. soldiers on the base because Fluor didn’t do what the Army told it to do,” Frank Chang, an attorney with Consovoy McCarthy representing Hencely said. “If we’re thinking about what kind of rule applies, the rule has to be one that saves soldiers.”

The federal government has sovereign immunity against lawsuits like Hencely’s through the combatant activities exception of the Federal Tort Claims Act. In Boyle v. United Technologies Corp , the Supreme Court ruled that the law also protected government contractors from state claims involving the unique federal interest of war.

Still, Justice Elena Kagan, a Barack Obama appointee, seemed to see a narrow path for Hencely’s lawsuit when government contractors aren’t acting in the federal government’s interest.

“You could have the rule … that the contractor is liable as long as the military didn’t specifically approve or direct the conduct,” Kagan said. “But you could have a more deferential rule … that the contractor was liable only if the plaintiff can show that the contractor violated military policy.”

Fluor Corporation employed the Afghan national who carried out the attack on Bagram Airfield. Ahmad Nayeb worked at Fluor’s non-tactical vehicle maintenance yard. Hencely said that under its contract, Fluor promised to supervise Afghan employees and escort them whenever they left their worksites.

According to an Army investigation, Fluor violated its contract when it failed to provide adequate supervision of Nayeb, allowing him to build the bomb and walk unattended on base.

Justice Neil Gorsuch, a Donald Trump appointee, said the Defense Department said contractors were only owed immunity in circumstances where the government directed their actions.

“That’s what the government told contractors like Fluor,” Gorsuch said. “Why isn’t it fair to hold you to that?”

Fluor argued that the combatant activities exception and Boyle  protected contractors from lawsuits like Hencely’s. Waging war requires risks, Fluor said, and subjecting contractors to liability for the potential consequences would ruin the trust between soldiers and contractors.

Justice Brett Kavanaugh seemed most supportive of Fluor’s arguments. The Donald Trump appointee said that Congress had to speak clearly when a uniquely federal interest is involved, and lawmakers hadn’t done so here.

“What happened here is terrible, so I’m completely sympathetic to that,” Kavanaugh said. “But, in terms of the legal framework that applies for situations like this, my thought, based on the precedent, was Congress has to speak.”

Hencely suffered a traumatic brain injury in the attack that left him unable to fully use his left arm, left hand or left side of his face or mouth. The injury also caused neuropathic pain, cognitive disorder, chronic PTSD, permanent short-term memory loss, and anxiety.

Hencely sued Fluor in South Carolina, where the company is based. He claimed Fluor violated state laws when supervising and hiring Nayeb.

Justice Samuel Alito, a George W. Bush appointee, questioned why *United States v. Washington — * the court’s 2022 ruling striking down a Washington state law regulating workers’ compensation for discriminating against the federal government — didn’t apply in Hencely’s case.

“At issue are actions taken by a military contractor basically on the battlefield, and you want state courts and state juries to decide whether what the military contractor did is justified?” Alito asked.

Multiple justices worried that Hencely’s lawsuit would put the military’s actions on trial in a state courtroom.

“Can you imagine in state court, generals [and] military officers coming in for testimony about what our rules were for the people who worked in the vehicle yard? What our rules were for who could run in a 5K? Why we had former Taliban working on a U.S. base at Bagram?” Kavanaugh asked. “That would be an interesting discussion, I’m sure.”

Gorsuch said there were good arguments for both immunizing contractors and holding them liable. He questioned if the court should be the one to pick which argument should prevail.

“Why isn’t that a judgment that really cries out for congressional decision?” Gorsuch asked. “What expertise do we have in setting that rule?”

Justice Amy Coney Barrett, another Trump appointee, said the court already addressed similar questions in Boyle . She said the court could decide to let state law apply Congress left contractors out of the combatant activities exception. Barrett seemed focused on a middle ground solution between Kavanaugh and his more liberal colleagues.

“I think you could win,” Barrett told Hencely, even though the Constitution carved out war powers as a uniquely federal interest.

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