Blackwater: The Rise of the World's Most Powerful Mercenary Army

WHILE BLACKWATER plotted out its expansion in the aftermath of the Fallujah ambush and internationalized its force in Iraq, the families of the four men killed there on March 31, 2004, looked for answers. They wanted to know how their loved ones ended up in the middle of the volatile city that morning, not to mention in SUVs, short-staffed and underarmed. All of the families considered themselves patriotic Americans, military families—Special Forces people. For the Zovko family, life since Fallujah had become consumed with a quest to understand their son’s life and death. Danica Zovko, Jerry’s mother, spent months piecing together details and memories. ¹ She recalled a week back in the summer of 2003, when Jerry was visiting her before heading off to Iraq. The national power crisis had left her family without electricity in their Cleveland, Ohio, home. “We had a lot of time to just spend at home—no TV, no radio, no nothing—just sitting outside and talking.” She remembered conversing with her son about his work and travels. “While we sat there, my Jerry told me, ‘The best thing that one can do in life is to sort of plant seeds and see what’s going on so that no matter where you go, you never close the doors behind you—that you always have someone to be there that you can count on.’ When I think about that now, all that talking and everything we did, that’s what that comes out to.”

At first, it didn’t seem to Danica Zovko that anyone other than the insurgents in Fallujah were to blame for her son’s gruesome death. In the immediate aftermath, she could not bring herself to read any news stories or look at the graphic images, but there was little doubt in her mind who bore the responsibility. From the start, Blackwater seemed on top of the situation. At 8 p.m. on March 31, 2004, Erik Prince showed up in person at the family home in Cleveland, accompanied by a state trooper, Danica recalled. “[Prince] told us that Jerry was one of the men killed that day,” she said. “We were numb. Just numb. He also told me that as far as he was concerned, if anyone was going to survive the war in Iraq, he thought it was going to be my Jerry. He said he saw Jerry, he met with Jerry, he was in Baghdad with Jerry, that Jerry was—you would think he really, really liked Jerry.” Danica Zovko said Prince handed them a form to fill out for $3,000 for funeral expenses, promised that Jerry’s body would be coming home soon and that Prince would attend the funeral in person.

On April 6, Paul Bremer wrote the Zovkos a letter: “I would like to personally assure you that Jerry was serving an honorable cause. The Iraqi people will be successful in their long journey towards a democratic and free society,” Bremer wrote. “Jerry was a dedicated individual and will remain an inspiration to all of us in Iraq whether civilian or military. In the line of duty, he gave his all. Rest assured that our authorities are actively investigating Jerry’s murder and that we will not rest until those responsible are punished for this despicable crime. You[r] family will remain in our thoughts and prayers as you confront this terrible tragedy in the difficult days ahead. I will do my part to ensure Jerry’s contribution to this country will be forever remembered by the Iraq people [sic].”² Three days later, Jerry Zovko’s remains returned to the United States in an aluminum box at Dover Air Force base in Delaware.³ True to his word, Danica Zovko said, Erik Prince came to the wake and funeral.

In Tampa, Florida, meanwhile, Scott Helvenston’s family held a funeral at Florida National Cemetery. His godfather, Circuit Judge William Levens, eulogized Scott as “a warrior who wanted peace—peace in his heart, peace in the world.”⁴ In the obituary in the paper, Helvenston’s family wrote, “Scott lost his life heroically serving his country.”⁵ A few weeks later, Scott Helvenston’s high school buddies heard about an event in his hometown of Winter Haven, Florida, organized by Republican State Representative Baxter Troutman. The “Operation Troop Salute” event was to honor servicemen and women deployed in the war zone and would be attended by eight thousand people, among them First Lady Laura Bush and the president’s brother, Florida Governor Jeb Bush.⁶ Helvenston’s buddies hoped that their fallen friend, the ex-SEAL, could be mentioned from the podium in honor of his service in Iraq. But Troutman, the organizer, said no—because Scott was a private contractor, not an active-duty soldier. “This was for the servicemen and -women who are not there by choice; to me, that makes a difference,” Troutman said. “If I am an employee of a company and don’t like what I am being subjected to, then I can come back home.”⁷ To Scott’s friends, it was devastating. “They’d be naming streets after him if he was still enlisted,” said high school pal Ed Twyford.⁸

Katy Helvenston-Wettengel was finding that there were almost no resources available to families of private contractors killed in the war and decided to reach out to one of the few people she could think of who would understand what she was going through. She looked up Danica Zovko and called her. The two developed a friendship and mutual quest for the truth of what had happened to their sons. “For the first couple of months, we flew back and forth, like, every other week, and we were there holding each other up. When one was struggling, the other would pick us up and vice versa,” recalled Helvenston-Wettengel. “Those first few months after, I didn’t quit crying—for almost a year. I cried every day. I just missed him so much and he’s my baby. I know he’s a big macho man, but he’s my baby.”⁹

As more details on the ambush emerged in the media, the families moved from grieving to questioning how it all happened. “Why weren’t they escorted?” wondered Tom Zovko, Jerry’s brother. “I don’t believe my brother would have done that. He was definitely not careless.”¹⁰ When Danica Zovko learned details of the mission the men had been on in Fallujah, she said, “I couldn’t believe it. I could not believe my son would be escorting trucks and protecting trucks. That was not my son. That made me believe that no, that’s not my Jerry, it must be someone else. I just couldn’t see him doing that, I just couldn’t. Even we buried his casket and I didn’t see the body and I’m going on the words of people—politicians and money-hungry people—that that’s him in there. I still sometimes dream that my Jerry is somewhere and just can’t call or doesn’t have a computer. But you know, I know it isn’t that. But you can’t help but hope.” Danica Zovko said that things started to feel strange when Blackwater returned Jerry’s belongings and some of his things were missing. She said her efforts to get these items—or information about them—were curiously stymied by the company. She started reading some articles about the incident and about her son’s mysterious employer, Blackwater. “When you want to find out things, when you start questioning yourself, when you are not content with saying, ‘It’s in God’s hands,’ when you think, well let me find out, your eyes open,” she said. “I found out there were no rules and no laws that govern what my son was doing, that it was an open place, you know. He was working for a company that could do whatever they wanted to do and however they wanted to do it.” She started thinking more about the ambush: What were they even doing in Fallujah?

But it wasn’t just the families who sensed something was off. In fact, the very day of the ambush, questions arose about “who is driving around in unprotected SUVs” in Iraq.¹¹ On Fox News, retired Col. Ralph Peters said, “I have to give you a painful answer on this. Either the most foolish contractors in the history of mankind or frankly it may have been intelligence people doing intelligence work. I don’t know. I was talking to a colonel friend of mine who is over in the Gulf right now, today, about this. And he said, ‘If they’re contractors, this is Darwinian selection at work.’”¹² Meanwhile, on NPR the next day, New York Times correspondent Jeffrey Gettleman came out of Fallujah asking the same questions. “What’s really mysterious, though, is why two unescorted, unarmored cars would be driving through the downtown of one of the most dangerous cities in Iraq without any serious protection,” Gettleman said. “If this could happen to these guys, who are, you know, well trained and had a lot of experience in dealing with things like this, you know, what does it mean for others like myself who walk into situations in places like Fallujah and don’t have the military background?”¹³ Other mercenary firms weighed in as well. “We have a policy with our international security division that requires that they use armored vehicles at all times,” said Frank Holder of Kroll on Fox News. “We won’t take an assignment unless there are armored vehicles.”¹⁴

A few days later, London’s Observer newspaper ran a story referencing the Fallujah ambush, headlined “Veiled Threat: Why an SUV Is Now the Most Dangerous Vehicle in Iraq.”¹⁵ The article labeled SUVs “the occupation car of choice.” The Observer’s correspondent noted, “Falluja is a centre of the anti-American resistance, where even the police don’t support the Americans. US soldiers don’t drive through Falluja much. When they do, they have helicopter back-up and heavy armour. ‘Almost every foreigner who has been killed here is an idiot,’ said one ex-Navy SEAL. Soldiers often show little sympathy for those who fail to follow the right procedure.”¹⁶ In a reaction piece written from Amman and Baghdad, Professor Mark LeVine wrote in the Christian Science Monitor, “[M]any here see last week’s carnage of Americans in Fallujah as suspicious. To send foreign contractors into Fallujah in late-model SUVs with armed escorts—down a traffic-clogged street on which they’d be literal sitting ducks—can be interpreted as a deliberate US instigation of violence to be used as a pretext for ‘punishment’ by the US military.”¹⁷ Amid the graphic scenes of mutilation and the dominant rhetoric of revenge emanating from the Pentagon and White House, the obvious questions about the Blackwater mission that day were overshadowed, but they certainly did not disappear. The company clearly knew it would have to offer some sort of an explanation.

A week after the ambush, Blackwater put forward a narrative that the New York Times said “could deflect blame for the incident from Blackwater.”¹⁸ “The truth is, we got led into this ambush,” Blackwater vice president Patrick Toohey, a decorated career military officer, told the Times. “We were set up.”¹⁹ According to Blackwater’s version of events, as reported by the Times, the four men killed in Fallujah “were in fact lured into a carefully planned ambush by men they believed to be friendly members of the Iraqi Civil Defense Corps… [who] promised the Blackwater-led convoy safe and swift passage through the dangerous city, but instead, a few kilometers later, they suddenly blocked off the road, preventing any escape from waiting gunmen.”²⁰ According to the subsequent Congressional investigation, the CPA report on the ambush disputed this account, finding that “the evidence does not support the claim that the ICDC participated in the ambush, either by escorting the convoy into Fallujah or by using its own vehicle to block the convoy from escaping the ambush.”²¹ Despite the increasing hostilities in Fallujah at the time, the Times went along with the company’s line, reporting that the Blackwater convoy “had little cause for suspicion.” In the Times story, no questions were raised about the lack of armored vehicles or the fact that there were only four men on the mission instead of six. Lending credence to Blackwater’s story, the Times declared that “the company’s initial findings are in line with recent complaints from senior American officials about Iraqi forces”:

But this story was soon directly contradicted by one of the most senior U.S. officials in Iraq at the time—Bremer’s deputy, Jim Steele, who had been sent covertly into Fallujah to recover the bodies and investigate.²³ After Steele met with Jon Lee Anderson of The New Yorker magazine in Baghdad, Anderson reported that Steele had “concluded that there was no evidence that the Iraqi police had betrayed the contractors.”²⁴ This was backed up by Malcolm Nance, a former naval intelligence officer and FBI terrorism adviser who headed a private security firm in Iraq at the time. “In Fallujah especially, an [Iraqi Civil Defense Corps] guarantee is of zero value,” Nance said. “You would never trust the word of local forces in a place like that—especially if you were driving a high-profile convoy, as these people were.”²⁵ Richard Perry, another former naval intelligence officer, who worked with Scott Helvenston when he was still in the service, said, “[E]verything that happened in Fallujah that day was a serious mistake. I simply cannot understand why the hell they were driving through the most dangerous part of Iraq in just two vehicles without a proper military escort…. They were lightly armed, and yet they would be up against people who regularly take on the U.S. Army.”²⁶ Time magazine reported that “A former private military operator with knowledge of Blackwater’s operational tactics says the firm did not give all its contract warriors in Afghanistan proper training in offensive-driving tactics, although missions were to include vehicular and dignitary-escort duty. ‘Evasive driving and ambush tactics were not—repeat, were not—covered in training,’ this source said.”²⁷

Meanwhile, the San Francisco Chronicle reported from Baghdad that Control Risks Group, the firm Blackwater had taken over the ESS contract from, had warned Blackwater at the time that Fallujah was not safe to travel through: “According to senior executives working with other Baghdad security companies, Blackwater’s decision to press ahead anyway stemmed from a desire to impress its new clients. ‘There has been a big row about this,’ said one executive, who asked not to be named. ‘Not long before the convoy left, Control Risks said, “Don’t go through Fallujah, it’s not safe.” But Blackwater wanted to show… that nowhere was too dangerous for them.’”²⁸ In response, Blackwater spokesman Bertelli said, “It is certainly not out of the question that some of Blackwater’s competitors would use this tragic occurrence as an opportunity to try and damage Blackwater’s reputation and secure contracts for themselves.”²⁹

In what would turn out to be the most comprehensive statement Blackwater would provide at the time on the incident, Bertelli told the Chronicle:

In the meantime, local reporters in North Carolina started digging for answers in Blackwater’s backyard. A few months after Blackwater’s alibi was published in the New York Times, Joseph Neff and Jay Price of the Raleigh News and Observer cast further doubt on Blackwater’s narrative. “[C]ontractors who have worked with Blackwater in Iraq were skeptical that the team had arranged for an Iraqi Civil Defense Corps escort,” the paper reported on August 1, 2004. “The Iraqi security force simply wasn’t trusted, said the contractors, who asked not to be named to protect their jobs.”³¹ More important, the News and Observer had sources inside the company who were raising serious questions about the conditions under which the four men were sent into Fallujah:

In Florida, Katy Helvenston-Wettengel, Scott’s mom, had all sorts of questions running through her head. Finally, she decided to call Erik Prince directly. She said it was surprisingly easy to get him on the phone. “I said, ‘I want an incident report on Scotty.’ And I said, ‘I want a copy of his contract that he signed with you,’” she recalled. “And he said, ‘Why?’ And I said, ‘I just want to know what happened.’ He said he would get it to me in the next few weeks. And I said, ‘Well, you’ve already written a report. Why can’t I have it tomorrow?’ And I said, ‘Are you going to rewrite it for my eyes only?’” She said she “never did get that report. I did get a call a few days later, and [Blackwater] all of a sudden [was] going to have this grand memorial.”

Indeed, a memorial was scheduled for mid-October 2004 at the Blackwater compound in North Carolina. But a week before the memorial, Blackwater held a different kind of ceremony—to inaugurate a new plant to manufacture military practice targets. Company president Gary Jackson beamed with pride as he discussed Blackwater’s rapid expansion. “The numbers are actually staggering. In the last eighteen months we’ve had over 600 percent growth,” Jackson said, adding that Blackwater’s workforce in North Carolina would soon double.³³ The company, he said, had also opened offices in Baghdad and Jordan. “This is a billion-dollar industry,” Jackson said of the target business. “And Blackwater has only scratched the surface of it.”³⁴ The Associated Press noted, “Gov. Mike Easley said having the global security company headquartered in North Carolina is fitting for what he called the most military-friendly state in the country.”³⁵

A few days later, on October 17, the company flew most of the families of the Fallujah contractors to North Carolina, where Prince was to dedicate the company’s memorial to the men killed in action.³⁶ In addition to the relatives of those men, there were three other families of Blackwater contractors who also had died in the line of duty.³⁷ The company put the families up in a hotel, and gift baskets of cheese and crackers were waiting in the rooms when they arrived. Danica Zovko said that from the moment they got to North Carolina, “It just felt uncomfortable. It’s like sometimes somebody is watching you and you feel it but you don’t know who it is. That’s what it felt like. Stiff. You couldn’t relax.” She said that each family member was assigned a Blackwater minder that escorted them everywhere and was present for all conversations, sometimes changing the subject if the conversation moved onto one topic in particular: Both Zovko and Katy Helvenston-Wettengel said they had the distinct feeling that the company was trying to keep the families from talking with one another about the details of the Fallujah incident.

The memorial was held, trees were planted, small headstones with the men’s names on them were laid in the ground around a pond on the company property. On October 18, the Zovkos said they were told there would be a meeting where they could ask questions about the Fallujah incident. “We assumed that everyone else was going to go to the meeting,” Danica Zovko said. In the end, only she, her husband, Jozo, and their son, Tom, attended. “There was alcohol served at the luncheon [for the families] beforehand, so maybe people were too tired or they were taken for sight-seeing,” she recalled. “Blackwater was very keen on showing everyone the compound, their training center.” The Zovkos were escorted to a company building, and when they walked in, they saw two large flags, one of which bore the names of Jerry and his three colleagues. A company representative, they said, told them the flag was made by Blackwater staffers in Iraq.

The Zovkos said they were taken to a meeting room on the second floor, where they were seated at a large twenty-person conference table. Erik Prince was not in the room. At the head of the table, remembered Danica, was a young blonde-haired woman named Anne. A Blackwater executive, Mike Rush, was there, too, as was a gray-haired man introduced to the family as “the fastest gun in Iraq”—a man who they were told had just returned to the United States to “get divorced and sell his house” before heading back to Iraq. None of them, she recalled, said they knew Jerry. “The only person from Blackwater that admitted knowing my Jerry was Erik Prince,” she said.

Danica said she began by asking for her son’s missing belongings. She was told that he had taken them all with him to Fallujah that day and that they were destroyed. Eventually, the Zovkos began asking questions about the incident itself. “Annie [the Blackwater representative] did not even sit down at that point because I was asking for the contracts, asking at exactly what time my son had died. I was asking how he died. I was asking for his personal things,” Danica said. “The tempers were not calm anymore. I mean, it’s civilized, but it’s not nice. You know, it’s to where you see that they’re not telling you what you want to know and they’re not happy with what you’re asking. So Annie actually stood up from her chair—she was at the head of the table, sitting all by herself. These other people were all sitting across from us. She was on the right-hand side of me at the head of the table. She stood up and said that was confidential and if we wanted to know those things, we’d need to sue them.” Danica Zovko said, “I told them that’s what we would do.” At the time, Zovko did not know what that even meant, but she was now convinced that Blackwater was hiding something—something serious about her son’s death.

Two weeks later, George W. Bush claimed victory in the 2004 presidential election. Blackwater executives, led by Prince, had poured money into Bush and Republican Party coffers and clearly viewed the reelection as great for business and necessary for the unprecedented expansion of the mercenary industry. On November 8, Gary Jackson sent out a celebratory mass e-mail with a screaming banner headline: “BUSH WINS FOUR MORE YEARS!! HOOYAH!!”³⁸ The U.S. military had just launched the second major siege of Fallujah, bombing the city and engaging in violent house-to-house combat. Hundreds more Iraqis were killed, thousands more forced from their homes, as the national resistance against the occupation grew stronger and wider. Despite the fierce attacks on the city, the killers of the Blackwater men were not apprehended.³⁹ On November 14, the Marines symbolically reopened the infamous bridge running over the Euphrates in Fallujah. It was then that the Marines wrote in black bold letters: “This is for the Americans of Blackwater that were murdered here in 2004, Semper Fidelis P.S. Fuck You.”⁴⁰ Gary Jackson posted a link to the photo on Blackwater’s Web site, saying, “OOHRAH… this picture is worth more than they know.”⁴¹ The families of the dead men, though, found little solace in revenge attacks or sloganeering.

When Katy Helvenston-Wettengel started complaining about Blackwater’s conduct and lack of transparency about the Fallujah ambush, Scott’s godfather, Circuit Judge William Levens, put her in touch with a lawyer who, he said, would help her seek answers. Eventually, a friend of Scott’s, another Blackwater contractor who had been overseas with him, brought the case to the attention of the successful Santa Ana, California, law firm Callahan & Blaine, whose owner, Daniel Callahan, was fresh off a record-setting $934 million jury decision in a corporate fraud case.⁴² Callahan jumped at the case. In North Carolina, Callahan enlisted the local help of another well-known lawyer, David Kirby—the former law partner of 2004 Democratic vice presidential candidate John Edwards. The new legal team began compiling evidence, talking to other Blackwater contractors, scouring news reports for every detail about the ambush, watching the precious few moments of the scene captured by insurgent video and news cameras. They got a hold of the Blackwater contracts the men were working under and also some contracts between Blackwater and its business partners in the Middle East. It took only a matter of weeks before they felt they had enough of a case to take action.

On January 5, 2005, the families of Scott Helvenston, Jerry Zovko, Wes Batalona, and Mike Teague filed a wrongful death lawsuit against Blackwater in Superior Court in Wake County, North Carolina. “What we have right now is something worse than the wild, wild west going on in Iraq,” said Dan Callahan. “Blackwater is able to operate over there in Iraq free from any oversight that would typically exist in a civilized society. As we expose Blackwater in this case, it will also expose the inefficient and corrupt system that exists over there.”⁴³ The suit alleged that the men “would be alive today” had Blackwater not sent them unprepared on that fateful mission. ⁴⁴ “The fact that these four Americans found themselves located in the high-risk, war-torn City of Fallujah without armored vehicles, automatic weapons, and fewer than the minimum number of team members was no accident,” the suit alleged. “Instead, this team was sent out without the required equipment and personnel by those in charge at Blackwater.”⁴⁵

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

Before Helvenston, Teague, Zovko, and Batalona were sent into Fallujah, the omission of the word “armored” was brought to the attention of Blackwater management by Helvenston’s friend John Potter, who was supervising the ESS contract, according to the lawsuit. Potter “insisted that the sub-contract include armored vehicles, not only to comply with the primary contract, but more importantly to protect the security contractors who would be working in the area. However, obtaining armored vehicles would not only be an expense to Blackwater, but would also cause a delay in commencing operations. Thus, on March 24, 2004, Blackwater fired Potter as Program Manager and replaced him with another Blackwater employee, Justin McQuown,”⁷⁶ the man Scott Helvenston identified as “Shrek,” with whom he had allegedly clashed in both North Carolina and Kuwait.⁷⁷

The suit alleged that there were six guards available for the Fallujah mission but that Blackwater managers ordered only the four to be sent “in direct violation of all of Blackwater’s policies and agreements.”⁷⁸ The other two contractors were allegedly kept behind at Blackwater’s Baghdad facility to perform clerical duties.⁷⁹ A Blackwater official later boasted that the company saved two lives by not sending all six men, the suit alleged.⁸⁰

Blackwater’s Andrew Howell later said, “The vehicle that they went out in that day was believed appropriate based on the mission by everyone involved or… I don’t believe that [the mission] would have been carried out at that point.” Regarding the allegation that there should have been six men on the mission instead of four, Howell said, “The mission they were on that day, at that point in time, given the threat as it was known on the ground in Iraq, the norm was not to have the third person.”⁸¹ But a Regency official later told Congressional investigators that “although these vehicles included an armor plate behind the back seat, that level of protection was below the armor protection kit called for by the contract” between the companies.

On March 30, 2004, the day before the Fallujah ambush, Tom Powell, Blackwater’s Baghdad operations manager, sent an e-mail to Blackwater management with the subject line “Ground Truth.” Powell wrote: “I need new vehicles. I need new COMs, I need ammo, I need Glocks and M4s. All the client body armor you got, guys are in the field with borrowed stuff and in harm’s way. I’ve requested hard cars [armored vehicles] from the beginning and, from my understanding, an order is still pending.”⁸²

The e-mail concluded, “Ground truth is appalling.”

Another Blackwater team sent out that day faced a similar situation to that of Helvenston and his comrades—short-staffed, under-armed, and lacking adequate preparation time—and that group likewise protested these conditions to company managers. After allegedly being threatened by Blackwater officials with dismissal, the men went on their mission and managed to survive.⁸³ One of those men later said: “Why did we all want to kill [the Blackwater operations manager]? He had sent us on this f**ked mission and over our protest. We weren’t sighted in, we had no maps, we had not enough sleep, he was taking 2 of our guys cutting off ou[r] field of fire. As we went over these things we [k]new that the other team had the same complaints. They too had their people cut…. Why were they sent into the hottest zone in Iraq in unarmored, under powered vehicles to protect a truck? They had no way to protect their flanks because they only had four guys.”⁸⁴

The lawsuit also alleged that the men were not provided with a detailed map of the Fallujah area. A Blackwater official told Helvenston “it was too late for maps and to just do his job with what he had,” the suit alleged. “The team had no knowledge of where they were going, no maps to review, and had nothing to guide them to their destination.”⁸⁵ According to Callahan, there was a safer alternative route that went around the city, which the men were unaware of because of Blackwater’s alleged failure to conduct a “risk assessment” before the trip, as mandated by the contract. The suit alleged that the four men should have had a chance to gather intelligence and familiarize themselves with the dangerous routes they would be traveling. Blackwater’s internal report, which Waxman was finally able to obtain, acknowledged that the Fallujah team had “no time to perform proper mission planning” and was sent out “without proper maps of the city.”⁸⁶ This was not done, attorney Miles alleged, “so as to pad Blackwater’s bottom line” and to impress ESS with Blackwater’s efficiency in order to win more contracts.⁸⁷ The suit also charged that Blackwater “intentionally refused to allow the Blackwater security contractors to conduct” ride-alongs with the teams they were replacing from Control Risks Group. In the CRG report on the incident, the company’s project manager wrote that Blackwater “did not use the opportunity to learn from the experience gained by CRG on this operation, this leading to inadequate preparation for taking on this task, unfortunately the outcome was the loss of four lives…. I believe that this incident could have been avoided or at least the risk minimised [sic].”⁸⁸ The suit contended that Blackwater “fabricated critical documents” and “created” a pre-trip risk assessment “after this deadly ambush occurred” to “cover-up this incident.”⁸⁹ The day after the ambush, Erik Prince had directed his Baghdad managers “to perform an immediate internal audit and to keep the information close.”⁹⁰ When that report finally made it to Waxman, it revealed that some Blackwater employees described the company’s Baghdad office as “flat out a sloppy… operation” and a “ship about to sink.” One Blackwater operative said, “Some of these lazy f**ks care about one thing, money.”⁹¹

After these and other statements were revealed by Waxman’s committee, Blackwater issued its own report. “Stronger weapons, armored vehicles, ammunition, or maps would not have saved these Americans’ lives,” Blackwater declared. “[T]his event was a tragedy—for which only the terrorists are to blame.”⁹² The report repeated the discredited allegations about Iraqi police involvement in the ambush, said the four men had made the decision to proceed on the mission that day, and asserted, “Even if Blackwater had placed six men on the mission, the result would likely have been the same.”⁹³

Attorney Dan Callahan said that if Blackwater had done in the United States what it is alleged to have done in Iraq, “There would be criminal charges against them.” Blackwater refused to comment on the case, but company vice president Chris Taylor said in July 2006, “We don’t cut corners. We try to prepare our people the best we can for the environment in which they’re going to find themselves.”⁹⁴ Justin McQuown’s lawyer, William Crenshaw, alleged that there are “numerous serious factual errors” in the lawsuit, asserting that McQuown lacked “involvement in the planning or implementation of that mission.” In an e-mail, Crenshaw wrote: “Let there be no mistake that the murders of the Blackwater team members in Fallujah were tragic. On behalf of Mr. McQuown, we extend our sincerest sympathies to the families of the deceased. It is regrettable and inaccurate to suggest that Mr. McQuown contributed in any way to this terrible tragedy.”⁹⁵

In one of its few public statements on the suit, Blackwater spokesperson Chris Bertelli said, “Our thoughts and prayers were with them and their families then and are with them now…. Blackwater hopes that the honor and dignity of our fallen comrades are not diminished by the use of the legal process.”⁹⁶ Katy Helvenston-Wettengel called that “total BS in my opinion,” and said that the families decided to sue only after being stonewalled, misled, and lied to by the company. “Blackwater seems to understand money. That’s the only thing they understand,” she said. “They have no values, they have no morals. They’re whores. They’re the whores of war.”

After its filing in January 2005, the case moved slowly through the legal system and sparked various battles over jurisdiction. From the start, Blackwater was represented by some of the most influential and well-connected lawyers and firms in the United States. Its original lawyer on the Fallujah case was Fred Fielding, President Reagan’s former counsel (among Fielding’s assistants in that post was future Chief Justice John Roberts). Fielding had also served as a top lawyer under President Nixon and was a member of the 9/11 Commission. In an indication of how deep Fielding’s connections ran, in early 2007 President Bush named him as his White House counsel, replacing Harriet Miers. Blackwater has also been represented in the case by Greenberg Traurig, the influential D.C. law firm that once employed disgraced lobbyist Jack Abramoff. The lawyers for the families charged that after the suit was filed, Blackwater attempted to stonewall the process.⁹⁷ While some of that may have been legitimate defense tactics, the lawyers alleged that Blackwater prevented court-ordered depositions from taking place, including taking steps to prevent a key witness from testifying: John Potter, the man who allegedly blew the whistle on the removal of the word “armored” from the subcontract, whom the suit alleged was subsequently removed from his position.⁹⁸

Attorney Marc Miles said that shortly after the suit was filed, he asked the court in North Carolina for an expedited order to depose John Potter. The deposition was set for January 28, 2005, and Miles was to fly to Alaska, where he said the Potters were living. But three days before the deposition, Miles alleged, “Blackwater hired Potter up, flew him to Washington, where it’s my understanding he met with Blackwater representatives and their lawyers. [Blackwater] then flew him to Jordan for ultimate deployment in the Middle East.” Miles charged that Blackwater “concealed a material witness by hiring him and sending him out of the country.” Miles said Blackwater subsequently attempted to have Potter’s deposition order dissolved, but a federal court said no. In testimony before Congress in June 2006, Blackwater’s Chris Taylor said, “I don’t believe John Potter is in our employ right now.”⁹⁹

The Potter saga took another twist in November 2006 when Miles discovered Potter was back in the United States. After reaching Potter on the phone in his hometown in Alaska, Miles filed papers with the court seeking once again to depose him, sparking a rapid and forceful response from Blackwater. In its filing opposing the deposition, Blackwater argued that the “case involves issues of national security and classified information involving the United States military operations in Iraq” and that “any testimony [Potter] would give would necessarily involve the disclosure of classified information.” ¹⁰⁰ Miles and his colleagues responded that Blackwater’s filing “reads like a good spy novel” with “claims of ‘classified’ information, state secrets and threats to national security.”¹⁰¹ In reality, they argued, the “Blackwater contractors were not acting as covert operatives for the CIA, but instead were working under a contract with a foreign hotel company to guard kitchen equipment.” National security and espionage, they asserted, “have nothing to do with this case.” In an indication of the significance of the lawsuit and, more significant, Blackwater’s pull with the government, the U.S. Attorney General’s office filed an opposition to the deposition of Potter, asking that—at a minimum—it be delayed so the government could review Potter’s alleged possession of classified information or documents. The U.S. attorney cited a need to “protect the National Security interests of the United States.”¹⁰² The U.S. Army’s chief litigator also filed a sworn declaration to “protect from improper disclosure any sensitive and properly classified information to which Mr. Potter may have been given access as a Government contractor.”¹⁰³ What was remarkable was how quickly Blackwater was able to mobilize the government and military to go to bat for it—the day after Christmas—and help stop, at least for the moment, the deposition of a potentially crucial witness from going ahead.

The families have all maintained that their interest in suing Blackwater was not money but accountability. “There’s not enough money in the world that can pay for my Jerry. There’s not enough money that anyone can give me,” said Danica Zovko. “If they made some rules and if they were obligated and if they treated those lives of those people the same way that I have to treat metal on the cars when I work for the city of Cleveland. It seems that there’s more laws and rules made about how to fix a car than there is about a life. There’s no amount of money that can do anything. It doesn’t exist to pay for the death of my son. They’re very, very foolish if they think that’s an answer.”

In the months after the suit was filed, Blackwater did not offer a rebuttal to the specific allegations made by the families, though the company denied in general that they were valid. Instead, Blackwater has argued that what is at stake in this case is nothing less than the ability of the President of the United States to conduct foreign policy as Commander in Chief of the armed forces. The company’s lawyers argued that Blackwater’s private soldiers have been recognized by the Pentagon as an essential part of the U.S. “Total Force,” constituting the nation’s “warfighting capability and capacity… in thousands of locations around the world, performing a vast array of duties to accomplish critical missions”¹⁰⁴—and allowing Blackwater to be sued for deaths in the war zone would be to attack the sovereignty of the Commander in Chief. “[T]he constitutional separation of powers… preclude[s] judicial intrusion into the manner in which the contractor component of the American military deployment in Iraq is trained, armed, and, deployed” by the President, Blackwater argued in one of its court filings.¹⁰⁵ This argument, if successful, could have the added benefit of preemptively immunizing Blackwater from any liability when deploying its forces in U.S. war zones.

The company fought to have the case dismissed on grounds that because Blackwater is servicing U.S. military operations, it cannot be sued for workers’ deaths or injuries, and that all liability lies with the government. In its motion to dismiss the case in federal court, Blackwater argued that the families of the four men killed in Fallujah were entitled only to government insurance payments. Indeed, after the ambush, the families’ lawyers alleged, the company moved swiftly to help the families apply for benefits under the federal Defense Base Act (DBA), government insurance that covers some contractors working in support of U.S. military operations. In its court filings in the Fallujah case, Blackwater asked the courts to recognize the DBA as the sole source of compensation for the men killed at Fallujah. Under the DBA, the maximum death benefits available to the families of the contractors was limited to $4,123.12 a month.¹⁰⁶ “What Blackwater is trying to do is to sweep all of their wrongful conduct into the Defense Base Act,” said attorney Miles. “What they’re trying to do is to say, ‘Look—we can do anything we want and not be held accountable. We can send our men out to die so that we can pad our bottom line, and if anybody comes back at us, we have insurance.’ It’s essentially insurance to kill.”¹⁰⁷

Blackwater’s primary argument, however, centered around what it portrayed as the bigger-picture ramifications for the future of U.S. war-fighting. “The question whether contractors may be sued, in any court, for war casualties while the military services may not… could determine whether the President, as Commander-in-Chief, will be able to deploy the Total Force decades into the future,” Blackwater argued in an appellate brief filed October 31, 2005.¹⁰⁸ In a subsequent filing two months later, Blackwater cited Paul Bremer’s Order 17—which officially immunized contractors in Iraq—arguing that since the order “reflects a foreign policy decision made or at least supported by the United States,” Blackwater should be “immune from the claims stated” in the lawsuit.¹⁰⁹ The company’s lawyers asserted that allowing the case to proceed against Blackwater could threaten the nation’s war-fighting capacity: “In order for responsible federal contractors to accompany the U.S. Armed Forces on the battlefield, it is essential that their immunity from liability for casualties be federally protected and uniformly upheld by federal courts. Nothing could be more destructive of the all-volunteer, Total Force concept underlying U.S. military manpower doctrine than to expose the private components to the tort liability systems of fifty states, transported overseas to foreign battlefields…. How the President oversees and commands these military operations, including his decisions through the chain of command concerning the training, deployment, armament, missions, composition, planning, analysis, management and supervision of private military contractors and their missions, falls outside the role of federal—and perforce state—Courts.”¹¹⁰

Blackwater argued that the courts could not interfere in its operations because they would be essentially interfering in the functioning of the military, something prohibited by the “political question doctrine,” which “is one of the sets of principles that safeguard from judicial inquiry decisions made by civilian political leaders through the military chain of command, including, in this case, decisions to hire contractors to protect military supply lines from enemy attack.”¹¹¹ In Fallujah, Blackwater argued, its men “were performing a classic military function—providing an armed escort for a supply convoy under orders to reach an Army base—with an authorization from the Office of the Secretary of Defense.”¹¹² Because of this, Blackwater argued, it should be immune from any liability: “Any other result would amount to judicial intrusion into the President’s ability to deploy a Total Force that includes contractors.”¹¹³

In an indication of how great other war contractors viewed the stakes in the Fallujah lawsuit, KBR—the Pentagon’s largest contractor in Iraq, with revenues from its work there totaling $16.1 billion¹¹⁴—filed an amicus curiae brief in support of Blackwater in September 2006. In filing the brief, KBR identified itself as “the Department of Defense’s largest civilian provider of worldwide ‘Stability Operations’ logistical support services.”¹¹⁵ KBR backed up Blackwater’s Total Force argument, asserting that the purpose of the LOGCAP program “is to facilitate Stability Operations by integrating military logistical support contractors like KBR into the US military’s Total Force. KBR functions as a ‘force multiplier’ by performing mission-critical services, such as the driving of military supply convoys. Such services formerly were provided only by uniformed military personnel, but in every respect continue to operate under the direction and control of U.S. military commanders.”¹¹⁶

From the start, the Blackwater lawsuit was viewed as a precedent-setting case on the role of and legal framework governing private forces in U.S. war zones. Blackwater enlisted no fewer than five powerhouse law firms to assist in its efforts to have the case dismissed or moved to federal court.¹¹⁷ Lawyers for the four families believed they would have a more favorable playing field in state court, where there was no cap on damages and the families would not need a unanimous decision to win.¹¹⁸ In October 2006, Blackwater hired one of the nation’s heaviest-hitting lawyers to represent it—Kenneth Starr, the independent counsel in the 1999 impeachment of President Bill Clinton over the Monica Lewinsky sex scandal.¹¹⁹ Starr’s name first appeared in connection with the case in Blackwater’s October 18, 2006, petition to U.S. Chief Justice John Roberts, asking him to put the state case on hold while Blackwater prepared to file its petition for writ of certiorari, which if granted would have allowed Blackwater to argue its case for dismissal before the U.S. Supreme Court, dominated by Republican appointees. Starr and his colleagues argued that Blackwater was “constitutionally immune” from such lawsuits and said that if the Fallujah case were allowed to proceed, “Blackwater will suffer irreparable harm.”¹²⁰ In the eighteen-page petition to the Supreme Court, Blackwater argued that there are no other such lawsuits against private military/security companies in state courts “because the comprehensive regulatory scheme enacted by Congress and the President grant military contractors like Blackwater immunity from state-court litigation.”¹²¹ On October 24, Justice Roberts simply wrote “denied” on Blackwater’s application, providing no reasoning for his decision. In late November 2006, over the objection of Blackwater’s lawyers, Wake County Superior Court Judge Donald Stephens ordered the state case against Blackwater to proceed.¹²² A month later, Starr and his colleagues appealed to the U.S. Supreme Court to hear the case, arguing that allowing it to proceed in state court “exposed U.S. civilian contractors carrying on their Defense Department-mandated operations in hostile territory to the destabilizing reach of fifty state tort systems in this country…. relegat[ing] civilian contractors serving in profoundly dangerous circumstances to the vagaries of a Balkanized regime of conflicting legal systems among the several States.”¹²³ In December 2006, two years after the filing of the wrongful death lawsuit against it, Blackwater filed a claim against the estates of the four men killed in Fallujah seeking $10 million, charging that the families had breached their loved ones’ contracts with Blackwater, which stated the men could not sue the company.¹²⁴ Attorney Callahan called the action “a meritless claim aimed at disrupting the families’ pursuit of justice.”

After more than two years of losing legal battles in the case and with the high-stakes trial on the verge of commencing, Blackwater engaged in some deft eleventh-hour legal maneuvering. In May 2007 the company’s lawyers persuaded a senior federal judge in North Carolina to order the case into closed-door arbitration, which Blackwater argued was the only legitimate forum for the case under the contracts the four slain men had signed with the company. The decision of the private panel of three arbitrators would be binding, and an appeal of their decision would be unlikely if not impossible. “Anyone who supports the rule of law should be encouraged to see the written agreement finally being honored and the dispute heading to arbitration as the parties agreed,” Blackwater spokesperson Anne Tyrrell declared.¹²⁵ A Blackwater lawyer boldly proclaimed, “The state court action is over.”¹²⁶ This arbitration scenario would mean that there would be no public trial, limited discovery and witnesses, and that the decision could be kept secret with a gag order imposed on the parties involved. As of spring 2008, the families’ lawyers were fighting the decision. “Blackwater has attempted to move the examination of their wrongful conduct outside of the eye of the public and away from a jury,” Callahan and Miles said in a statement. “Blackwater is trying to wipe out the families’ ability to discover the truth about Blackwater’s involvement in the deaths of these four Americans and to silence them from any public comment.”¹²⁷

As this case made its way through the legal labyrinth, Blackwater regularly switched legal teams and introduced new arguments and attempts to beat the case before it could make its way to trial. In January 2008 Blackwater lashed out at Wiley Rein, the firm that originally represented the company in the Fallujah suit. Blackwater sued the firm for malpractice; if the attorneys had done their job, the company asserted, the “lawsuit would have been dismissed and the litigation involving plaintiffs would have ended.”¹²⁸ Blackwater sought $30 million in damages. Wiley Rein said the claim was without merit.

Given the uncounted tens of thousands of Iraqis who have died since the invasion and the multiple U.S. sieges in Fallujah that followed the Blackwater incident, some might say this lawsuit was just warmongers bickering. In the bigger picture, the real scandal wasn’t that these men were sent into Fallujah with only a four-person detail when there should have been six or that they didn’t have a powerful enough machine gun to kill their attackers. It was that the United States had opened Iraq’s door to mercenary firms whose forces roamed the country with apparent impunity. The consequences of this policy were not lost on the families of the four slain Blackwater contractors. “Over a thousand people died because of what happened to Scotty that day,” said Katy Helvenston-Wettengel. “There’s a lot of innocent people that have died.” While the lawsuit didn’t mention the retaliatory U.S. attack on Fallujah that followed the Blackwater killings, the case sent shockwaves through the corporate community that has reaped huge profits in Iraq and other war zones. At the time the lawsuit was filed, more than 428 private contractors had been killed in Iraq with U.S. taxpayers footing almost the entire compensation bill to their families. By February 2008, the U.S. Department of Labor adjusted the figure to 1,123 contractors killed and over 13,000 injured. “This is a precedent-setting case,” said attorney Miles. “Just like with tobacco litigation or gun litigation, once they lose that first case, they’d be fearful there would be other lawsuits to follow.”¹²⁹