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

U.S. ARMY Spc. Harley Miller made his way out of the mangled wreckage of Blackwater 61, a turboprop plane that minutes earlier had slammed into Baba Mountain, 14,650 feet high in Afghanistan’s Hindu Kush mountain range. He passed the two other soldiers who had been on the flight with him, both dead from the impact and still strapped into their seats. The twenty-one-year-old Miller was suffering from injuries just a shade less severe than those that had killed them. Miller was all alone on the snow-covered mountain, 2,000 feet below its peak. The two pilots—Blackwater contractors—had been ejected 150 feet in front of the plane after its 400-foot skid and had died from the impact. The body of the aircraft’s engineer rested just outside the plane’s bulkhead.¹

Specialist Miller smoked a cigarette; urinated twice, once near the rear of the aircraft and once near the front; and unrolled two sleeping bags. He propped a metal ladder up against the fuselage, possibly so he could climb on top of it to call for help or to gauge his location. He lay down on the makeshift bed, suffering from massive internal bleeding, a broken rib, lung and abdominal trauma, and minor head injuries. Miller’s injuries would be compounded by the lack of oxygen and the frigid temperatures, and after more than eight hours alive and alone atop Baba Mountain, the crash claimed its final casualty. It would be three days before his body was recovered.²

The November 27, 2004, crash of Blackwater 61, a privately owned plane on contract with the U.S. military, would attract scant media attention, mostly sugary obituaries in the hometown papers of those killed. While Blackwater had already become a familiar name because of the Fallujah ambush a few months earlier, the crash itself, a small speck of inaccessible wreckage in the rugged mountains of Afghanistan, was a nonstory. It could scarcely have created a more opposite impression than that of the iconic killings in Fallujah. There were no gruesome images broadcast internationally and no declarations from the White House. It was, for all practical purposes, a minor tragedy in what had become—at least in the eyes of the media—a secondary, if not forgotten, war in Afghanistan. But the crash would nonetheless become a serious legal problem for Blackwater, for this time, unlike in Fallujah, there was an official paper trail.

The U.S. Army’s Collateral Investigations Board and the National Transportation Safety Board generated hundreds of pages of documents as they investigated the crash. A black box captured the final moments of the flight. Unlike in Fallujah, some of the victims of the incident were active-duty U.S. soldiers, and those who caused the deaths, even if not intentionally, were private contractors. On the surface, it would seem that with the exception of Blackwater being involved in both incidents, the crash atop Baba Mountain and the Fallujah massacre had little in common.

The similarities, though, began to reveal themselves after the families of the three U.S. soldiers killed in the crash filed a wrongful death lawsuit on June 10, 2005. In fact, the issues surrounding the crash would prove to be much the same as those surrounding Fallujah, though they would draw far less attention. The families of the soldiers killed in the Blackwater 61 crash alleged that the company had cut corners, sidestepped basic safety procedures, and recklessly caused the deaths of their loved ones in the process.³ At the center of the case, as in that of the Fallujah lawsuit, was once again Blackwater’s claim that its forces were immune from any lawsuits because the company was part of the U.S. “Total Force” in the war on terror.⁴

Blackwater’s aviation division, Presidential Airways, has largely operated off of the public radar, though its aircraft overseas have frequented the same airports as those used in the CIA’s extraordinary rendition program.⁵ Blackwater’s pilots are required to have the same security clearances as those involved in renditions. David P. Dalrymple, the Bagram site manager for Presidential, said, “I, and all other Presidential personnel serving in Afghanistan, possess or are in the process of obtaining ‘secret’ or higher security clearances from the United States Government.”⁶ The company also asserted that it “holds a US DoD Secret Facility Clearance.”⁷

The contract that Blackwater 61 operated under in Afghanistan had been inked in September 2004, just two months before the crash.⁸ After three months of negotiations, the Air Force agreed to a $34.8 million contract for Presidential Airways to provide “short take-off and landing” (STOL) flights in Afghanistan, Uzbekistan, and Pakistan.⁹ Presidential agreed to fly six regularly scheduled daily routes to small airfields throughout Afghanistan, and other flights as needed. It was estimated that Presidential’s three aircraft would fly about 8,760 hours per year under the contract.¹⁰ “With this contract, [Blackwater Aviation] has extended its reach out of Iraq and is providing much needed assistance to US Service men and women in Afghanistan and further into the southern countries of the former Soviet Union,” Blackwater boasted in October 2004 in its Tactical Weekly newsletter.¹¹

John Hight, Presidential’s director of operations, explained that the company based its bid on its “experience operating in and out of unimproved landing strips and work for the military carrying sky divers.”¹² Once the company got word that its bid was successful, Hight said he started recruiting “experienced CASA pilots” for the Afghanistan missions. Five days after the contract was signed, “we arrived in Afghanistan with our first aircraft,” Hight recalled.¹³

But, experienced or not, flying in Afghanistan is substantially different from flying in most of the United States. Afghanistan is crisscrossed with mountain ranges that tower above even the highest point in the continental United States, which is California’s Mt. Whitney at 14,495 feet. By contrast, Afghanistan’s highest point is nearly 25,000 feet. Pilots also faced an additional hurdle in that there was limited communication with other aircraft and no air-traffic control to guide planes should they encounter a thick patch of clouds or other bad weather, which experts said could be incredibly variable in Afghanistan. This could cause serious problems very quickly because flights were often piloted using “visual flight rules”—in other words, pilots were on their own with little more than instinct and common sense to guide them. As one Blackwater pilot put it, “The flight crews know that if you can’t get over it or under it, then you turn around and come home. There’s no pressure to get the flight complete.”¹⁴

While some bases in Afghanistan—like those at Kabul, Bagram, and Shindad—had ground control towers, others did not. Basically, according to Presidential’s pilots, “once the aircraft are twenty miles out of radar coverage, they are on their own.”¹⁵ Flying in Afghanistan was low-tech to the point where pilots often had to use satellite phones to report their locations when they landed anywhere but the most frequented areas, and even the satellite phones often proved unreliable.¹⁶ Aside from the impracticality of flying set routes, pilots also “don’t want to fly set routes for force protection reasons”¹⁷—fear of being targeted by antioccupation or “enemy” forces.

Taken together, the weather, visual flight rules, threat of enemy fire, light turboprop aircraft with varying cargo and passenger loads, and extreme elevations made for a difficult combination even for experienced pilots. In essence, the Afghan skies were an unpredictable frontier. Indeed, all of Blackwater’s flights in the country were piloted using visual flight rules. “Therefore there were no prescribed routes of flight to and from Bagram or any of the other locations which we supported other than the sound aviation practice of flying as direct a route as possible while avoiding terrain and weather,” said Paul Hooper, the site manager for Presidential. “Common practice was to fly the most direct route possible. Terrain, weather and a desire to avoid establishing a flight pattern in an environment with hostile ground forces, were some reasons our flight crews varied the specific ground track of each flight.”¹⁸

Among those hired by Blackwater to fly under these unusual and dangerous circumstances were two experienced CASA pilots, thirty-seven-year-old Noel English and thirty-five-year-old Loren “Butch” Hammer. Both men had experience flying under unorthodox circumstances with little ground support in variable weather and terrain, as well as landing in nontraditional locations. English had logged nearly nine hundred hours in a CASA 212—most of it as a “bush pilot” in Alaska—while Hammer had spent years piloting and copiloting “smokejumpers” during the summer fire seasons in the United States, “dropping smoke divers and para-cargo on forest fires,” according to Kevin McBride, another Blackwater pilot who had previously worked with Hammer. “He was a knowledgeable and skilled First Officer, with lots of experience in mountain flying and low level missions.”¹⁹

After several weeks of training for the Afghanistan mission in Melbourne, Florida, Hammer and English arrived in Afghanistan on November 14, 2004.²⁰ According to the U.S. Army, Presidential had a policy of not pairing any two pilots with less than a month “in the theater.”²¹ Presidential, however, paired Hammer and English, both of whom had been in the country for only two weeks, because they were the only crew the company had who, in addition to the CASA planes, could fly an SA-227 DC, or Metro plane, which could be used for flights to Uzbekistan.²² Presidential had two CASAs and one Metro plane in the theater. During their brief time in Afghanistan, Hammer and English had each logged thirty-three hours of flight time.²³

On November 27, the pilots woke up at 4:30 a.m. to a crisp and clear forty-degree day at Bagram airport—the main prison facility for people detained by U.S. forces in Afghanistan and an alleged site of prisoner torture. ²⁴ The Presidential crew would be leaving the base in a little less than three hours on a mission to transport a couple of U.S. soldiers and four hundred pounds of 81 mm mortar illumination rounds. The route would take them first to Farah, 450 miles southwest of Bagram, then to Shindad to refuel, and then back to Bagram, where they were scheduled to return at 1:30 p.m. Neither Hammer nor English had flown the route before.²⁵

Bunking with the men at Bagram the night before were two other Presidential pilots who would be leaving at about the same time as Blackwater 61 and traveling on a similar route. Like Hammer and English, pilots Lance Carey and Robert Gamanche would fly a Blackwater CASA westward that morning, stopping at Shindad to refuel. Carey, who shared a room at Bagram with both English and Hammer for the three days prior to the flight, said, “They were both looking forward to [it].” Gamanche ate breakfast with English on the morning of the flight. Both crews reviewed that day’s weather forecast. “Since our flights would eventually take us to the same place [Shindad] and the forecast was marginal due to visibility, we decided to make a group go-no go decision,” Gamanche recalled. “If the current weather at [Shindad] was not favorable, we would stay on the ground.” There were no weather problems reported at either of the crews’ initial destinations. “The current weather was favorable so we all decided to go,” said Gamanche. Though there were indications that at Farah and Shindad gusting winds and blowing dust could make landing difficult, at Bagram “the weather was forecasted as clear with unlimited visibility.”²⁶

The flight was a go. Melvin Rowe, a forty-three-year-old flight mechanic, joined the crew of Blackwater 61. Two passengers were slated to come on the flight, Spc. Harley Miller and Chief Warrant Officer Travis Grogan. They had loaded up the four hundred pounds of ammunition and begun to taxi when a soldier ran along the runway toward their plane. A third passenger would be joining them: Lt. Col. Michael McMahon, commander of the twenty-five-thousand-soldier Task Force Saber, which was responsible for the entire western region of Afghanistan—where Blackwater 61 was headed.²⁷ McMahon, a Desert Storm veteran and West Point graduate,²⁸ “was just an extra guy that showed up and [asked] if he could get on the flight,” one Blackwater employee explained. If they “ask us to do it and it’s not out of the common sense category, then they’ll do it.”²⁹ There were now six people on board the plane.

At 7:38 a.m., Blackwater 61 took off from Bagram and headed northwest. The last thing the six of them would hear from anyone outside the flight was the Bagram tower telling them they would “talk to you later.” Five minutes after that, the plane dropped off Bagram’s radar, about nine miles out from the airport.³⁰ Hammer, Blackwater 61’s copilot, quickly commented on the visibility, saying, “can’t ask for a whole lot better than this.” But it was apparent, even early in the flight, that the pilots didn’t quite know exactly where to go, as evidenced from the flight’s black box recording:

The novice Afghanistan pilots clearly didn’t have a command of the route they would be covering, and English ultimately said, “We’ll just see where this leads.” The pilots and Rowe spent the next several minutes fumbling through maps trying to determine their location and route. Hammer said that he hadn’t brought a handheld global positioning system with them that would have issued a warning when the plane came close to the ground. About eight minutes into the flight, English expressed some concern about the weather in western Afghanistan, saying, “normally… on a short day like this we’d have time to play a little bit, do some explorin’, but with those winds comin’ up I want to [expletive] get there as fast as we can.”

Despite the early indications of some complications, the pilots spent some time during the flight chatting with each other, making small talk. “I swear to God, they wouldn’t pay me if they knew how much fun this was,” English said. The pilots had been riding through the Bamian Valley, although from the transcript of their in-flight conversations, it seemed they were somewhat uncertain and unconcerned as to exactly where they were. “I don’t see anythin’ over about thirteen three is the highest peak in the whole route I think,” said Rowe, the flight’s engineer. “Plenty of individual valleys,” English replied, “Yeah, so we’ll be able to pick our way around it. Yeah, with this good visibility [expletive] it’s as easy as pie. You run into somethin’ big and you just parallel it until you find a way through. Yeah, like I said, this is the first good visibility day I’ve had in the CASA. It’s not just good, it’s outstanding.”

At one point, the passengers asked the pilots what they’d be passing by on their way to Farah. Rowe, the man with the maps, replied, “I don’t know what we’re gonna see, we don’t normally go this route.” Seconds later, English said, “All we want to avoid is seeing rock at twelve o’clock.” Then Hammer—the copilot—turned his attention to pilot English’s apparent maneuvering of the plane: “Yeah, you’re an X-wing fighter Star Wars man.”

“You’re [expletive] right,” English shot back. “This is fun.”

As the pilots started encountering some mountains and apparently swerving to avoid getting boxed in, they continued with their friendly, casual banter. They talked about getting an MP3 player wired into their headphones; English said he wanted to listen to “Phillip Glass or somethin’ suitable New Age-y.” No, Hammer shot back, “we gotta have butt rock—that’s the only way to go. Quiet Riot, Twisted Sister.”

But four minutes later, roughly twenty-five minutes into the flight, things started to go terribly wrong for Blackwater 61. When they emerged from the Bamian Valley, they found themselves flying along the Baba Mountain range. “Well, this, ah, row of mountains off to our left—I mean, it doesn’t get much lower than about 14,000, the whole length of it, at least not till the edge of my map,” Hammer informed English, as they discussed how to get past the mountain. “Well, let’s kind of look and see if we’ve got anywhere we can pick our way through,” English responded. “Doesn’t really matter. It’s gonna spit us out down at the bottom, anyway. Let’s see, find a notch over here. Yeah, if we have to go to fourteen for just a second, it won’t be too bad.”

They soon decided to attempt a 180-degree turn. “Come on, baby. Come on, baby, you can make it,” English said, as though willing the plane upwards. Nervously, the engineer Rowe asked the pilots, “OK, you guys are gonna make this, right?”

“Yeah, I’m hopin’,” English replied.

The National Transportation Safety Board report said that at this point a sound similar to a “stall warning tone” could be heard on the black box recording. Inside the plane, chaotic conversation ensued before Rowe declared to the pilot, “Yeah, you need to, ah, make a decision.” Heavy breathing could be heard inside the plane, as English exclaimed, “God [expletive deleted].” Rowe called out, “Hundred, ninety knots, call off his airspeed for him.” At this point, the stall warning tone became constant, as the dialogue grew frantic, desperate.

In the midst of attempting a 180-degree turn after it became clear that Blackwater 61 would not be able to clear the 16,580-foot Baba Mountain, the plane’s right wing struck the mountain and was sheared off, causing the plane to tumble and skid for hundreds of feet, breaking apart the fuselage and crumpling the left wing under it. The pilots had been ejected 150 feet in front of the wreckage, and all of the passengers died on impact, except for Army Specialist Miller.³²

Though the terrain on the route from Bagram to Farah was mountainous, Blackwater 61 had almost made it through the worst stretch of the flight. The plane cleared almost the entire Bamian Valley before the pilots decided to turn almost directly into Baba Mountain. As Blackwater pilot Kevin McBride later put it, “I really don’t know how the pilots… got to the location where they were found…. The ridgeline where [Blackwater 61] crashed is the highest point in the highest ridgeline on our route.”³³

But the missteps involved in the accident were far from over. It wouldn’t be until six hours after the plane reached Farah—and one hour after it was due back at Bagram—that any sort of rescue/recovery mission would even begin. The search for Blackwater 61 was immediately hampered by the lack of any tracking devices on the plane and an apparent absence of information about its intended route, as well as confusion over who was even responsible for finding the aircraft. “Lacking any coordinated rescue effort, and taking into account the probability that the aircraft flew to the south, my unit developed large search sectors, essentially covering the majority of Afghanistan,” said Maj. David J. Francis, the operations officer for Task Force Wings, which was part of the Combined Joint Task Force 76. “There was some confusion as to who was going to run the rescue operation. At one point, the question was asked: ‘Who owns this mission?’” Francis added, “There was no coordinated rescue plan until [eleven hours after the flight was due back at Bagram] on the day of the crash.”³⁴

It would be seventy-four hours before the wreckage was spotted and conditions allowed for CH-47 helicopters to reach the site and recover the remains, black box recorder, and the ammunition on board.³⁵ Though Specialist Miller had survived the initial impact, he didn’t stand a chance of surviving the three days that passed before rescuers arrived. At the time of the crash, it was described in news reports as a basic accident—the kind of incident that ends up a small news item, if at all, in the papers. In fact, two weeks after Blackwater 61 went down, engineer Rowe’s wife described it as “a plain-old regular plane crash.”³⁶

But as more details began to emerge and the military began to investigate, the families of the U.S. soldiers killed in the crash didn’t view it as a fluke accident. On June 10, 2005, the families of Michael McMahon, Travis Grogan, and Harley Miller sued Blackwater’s aviation subsidiaries, alleging negligence on the part of the flight crew and accusing the company of causing the soldiers’ deaths. Blackwater’s “gross and flagrant violations of safety regulations evince a reckless and conscious disregard of human life and for the rights and safety of their passengers,” the lawsuit alleged, saying the actions of the company “evince reckless and wanton corporate policies, procedures, planning, and flight operations.”³⁷ Robert Spohrer, the attorney for the families, alleged the company was “cutting corners” in its service to the armed forces. “If they’re going to outsource to corporations services like flying personnel around Afghanistan, they must do it with corporations that put the safety of our men and women in uniform ahead of corporate profits. Sadly, that wasn’t done here.”³⁸

Bolstering the families’ case was the fact that the U.S. Army Collateral Investigations Board found Blackwater at fault for the crash, determining after a lengthy investigation that the crew suffered from “degraded situational awareness” and “inattention and complacency” as well as “poor judgment and willingness to take unacceptable risks.”³⁹ The investigation also determined it was possible that the pilots were suffering from visual illusions and hypoxia, whose symptoms can include hallucinations, inattentiveness, and decreased motor skills. Further, the Army said there was demonstrated evidence of “inadequate cross-checking and crew coordination.”⁴⁰ Presidential Airways said the report “was concluded in only two weeks and contains numerous errors, misstatements, and unfounded assumptions.”⁴¹

In December 2006, nearly two years after Army investigators concluded their report, the National Transportation Safety Board issued a report of its own. The NTSB concluded that Blackwater’s pilots “were behaving unprofessionally and were deliberately flying the nonstandard route low through the valley for ‘fun.’” The board also found that the pilots’ vision and judgment might have been impaired because they were not using oxygen, potentially in violation of federal regulations. “According to studies… a person without supplemental oxygen will exhibit few or no signs, have virtually no symptoms, and will likely be unaware of the effect,” the board said.⁴²

But perhaps the most significant finding, as a result of autopsies not mentioned in the earlier Army report, was that Specialist Miller had “an absolute minimum survival time of approximately eight hours” after the accident, and that if Miller “had received medical assistance within that time frame, followed by appropriate surgical intervention, he most likely would have survived.” But, the board found, because Presidential Airways allegedly did not have procedures required by federal law to track flights, “by the time air searches were initiated, [Miller] had been stranded at the downed airplane for about seven hours,” and “his rescue was further delayed when the subsequent five hours of aerial searches were focused in areas where the airplane had not flown.”⁴³

Joseph Schmitz, general counsel for Blackwater’s parent company, The Prince Group (who will be discussed in detail in a later chapter), described the report as “erroneous and politically motivated,” according to the Raleigh News & Observer, and “said the report was intended to cover for the military’s failures, but declined to elaborate on those failures. It was clear, he said, that the NTSB hadn’t completed the rudiments of a proper accident investigation, which he called a disgrace to the victims and U.S. taxpayers,” and added that the company would ask the NTSB to reconsider its findings.⁴⁴

In fact, though the NTSB did blame the pilots and Presidential, it also blamed both the FAA and Pentagon for not providing “adequate oversight,” and one NTSB member wrote a concurring opinion that highlighted the jurisdictional confusion in investigating “a civilian accident that occurred in a theater of war while the operator was conducting operations on behalf of the Department of Defense.” The NTSB’s Deborah Hersman called it “perplexing” that the Defense Department and FAA had not sorted out responsibility for “these types of flights” and added that even though the FAA was faulted for oversight, neither it nor the NTSB had personnel assigned to Afghanistan.⁴⁵ Those issues, combined with Hersman’s description of Blackwater 61 as “clearly a military operation subject to DoD control,” spoke directly to the tack Blackwater took in defending itself against the wrongful death lawsuit.

Blackwater’s response strategy to the Afghanistan lawsuit closely paralleled that of its Fallujah defense: Blackwater and its subsidiaries are part of the Defense Department’s “Total Force” and are therefore immunized against tort claims. Blackwater stiffly resisted acknowledging that the courts had any jurisdiction in the case and moved to stop the trial’s discovery process at every turn, arguing that even allowing its employees to be deposed would interfere with its immunity. Blackwater’s lawyers argued, “Immunity from suit does not mean just that a party may not be found liable, but rather that it cannot be sued at all and need not be burdened with even participating in the lawsuit. To require Presidential to engage in discovery thus would eviscerate the immunity that Presidential has.”⁴⁶

In fighting the lawsuit, Blackwater adopted a three-pronged approach to argue that it should be immune from such litigation: that its operations fall under the realm of a “political question” that must be addressed by either the executive or legislative branches, but not the judiciary; that Blackwater is essentially an extension of the military and thus should enjoy the same immunity from lawsuits that the government does when members of the military are killed or injured; and that Blackwater should be immune from lawsuits under an exception to the Federal Tort Claims Act that has in the past been granted to contractors responsible for the design and manufacturing of complex pieces of military equipment. Other military contractors closely monitored Blackwater’s arguments in the Fallujah and Afghanistan cases, believing that the outcomes would have far-reaching implications for the entire war industry.

The Political Question Doctrine

In its court filings, Blackwater/Presidential cited the “political question doctrine,” which relies on the idea that “the judiciary properly refrains from deciding controversies that the Constitution textually commits to another political branch and cases that are beyond the competence of the courts to resolve because of the lack of judicially manageable standards.”⁴⁷ Referencing its contention that it was a recognized part of the U.S. “Total Force” and part of the Defense Department’s “warfighting capability and capacity,” Blackwater argued that “allowing civilian courts to consider questions of liability to soldiers who are killed or injured in operations involving contractors on the battlefield would insert those civilian courts directly into the regulation of military operations.”⁴⁸

This argument was not warmly received by the district court judge in the case. In rejecting Blackwater’s argument, Judge John Antoon cited the 2006 ruling in Smith v. Halliburton Co. That lawsuit accused Halliburton of negligence for failing to secure a dining hall in Mosul, Iraq, that was hit by a suicide bomber on December 21, 2004, killing twenty-two people. Judge Antoon found:

Judge Antoon determined that because Blackwater 61 was “required to fly as [it] normally would, according to commercial, civilian standards, in a foreign, albeit treacherous, terrain” and could refuse to fly any mission they felt was too dangerous, “it does not appear… this Court will be called on to question any tactical military orders.”⁵⁰

The court ultimately rejected Blackwater’s “political question” argument, saying it was “not a proper basis for dismissing this case.” Antoon also questioned Blackwater’s contention that it was essentially part of the military, pointing out that the federal government could have filed a brief supporting Blackwater in this case but had not. “Notably, the United States has not chosen to intervene on behalf of Defendants in this case,” the judge wrote.“ It has declined an opportunity to intervene and explain how its interests might be affected by this lawsuit.”⁵¹

While rebuking Blackwater, the judge did seem to indicate that these situations could change for contractors in the future. “The extent to which for-profit corporations, performing traditional military functions, are entitled to protection from tort liability is an area of interest to the political branches.”⁵²

The Feres Doctrine

In arguing that it is immune from tort litigation, Blackwater cited the Feres Doctrine, which holds that the government has sovereign immunity from tort suits for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”⁵³ Blackwater argued that “it is inconsequential here that the decedents died in aircraft hired by the Air Force, rather than in an aircraft operated by the Air Force—what matters is that they were military personnel who died while on war duty.”⁵⁴ Blackwater alleged that even the families of the dead soldiers admitted their loved ones “(1) were deployed to Afghanistan, (2) died in a combat zone, and (3) did so while being transported on a DoD mission between two airfields in Afghanistan.”⁵⁵

Judge Antoon clearly took issue with Blackwater’s interpretation of a fairly straightforward immunity granted to the military, pointing out that Blackwater’s lawyers “cite no case in which the Feres doctrine has been held applicable to private contractors.”⁵⁶ He said Blackwater/Presidential “essentially mask their request for this Court to stretch Feres beyond its established and logical bounds by citing cases which emphasize that it is the plaintiff’s status as a member of the military and not the status of [Blackwater] that is significant.”⁵⁷ The judge concluded, “Clearly, Defendants in this case are not entitled to protection under the Feres doctrine because they are private commercial entities…. Defendants entered into the contract as a commercial endeavor. They provided a service for a price. Simply because the service was provided in the mountains of Afghanistan during armed conflict does not render the Defendants, or their personnel, members of the military or employees of the Government.”⁵⁸ In other words, Antoon determined that though the Pentagon might have referred to private military contractors as part of its “Total Force,” that did not change Blackwater’s status as a for-profit private company responsible for its actions.

Exception to Federal Tort Claims Act

Blackwater’s third major argument for immunity from tort lawsuits was that, as a military contractor, it is immune from such litigation in the same way that certain producers of complex military equipment have been found immune. In one case, the family of a dead Marine sued a manufacturer for defects in its design of a helicopter escape system. The court concluded that “state tort law was preempted by the government’s profound interest in procuring complex military equipment” and that the government had the “discretion to prioritize combat effectiveness over safety when designing military equipment.”⁵⁹

Judge Antoon decided that although that defense exists and it has been extended in some instances, there is no “authority for bestowing a private actor with the shield of sovereign immunity. Until Congress directs otherwise, private, non-employee contractors are limited” to exceptions like that involving the design of complex equipment. “This Court is skeptical that the combatant activities exception to the [Federal Tort Claims Act], which preserves the Government’s traditional sovereign immunity from liability, has any application to suits against private defense contractors,” Antoon wrote. “To the extent that it does apply, however, at most it only shields private defense contractors for products liability claims involving complex, sophisticated equipment used during times of war. It has never been extended to bar suits alleging active negligence by contractors in the provision of services, and it shall not be so extended by this Court.”⁶⁰

Blackwater’s Curious Aviation Division

In late September 2006, Judge Antoon denied every single motion made by Blackwater to stop discovery and dismiss the case, and, as expected, Blackwater immediately began the appellate process. While Antoon decisively rejected Blackwater’s claim that it is in effect an extension of the U.S. military because of its claimed status as part of the Pentagon’s “Total Force,” Blackwater may actually have been far more intertwined with the workings of the military and intelligence agencies than it would ever let on.

While what little attention that has been paid to Blackwater’s aviation division has focused on the Afghanistan lawsuit, the company has multiple contracts with the U.S. government to provide pilots and aircraft. Information on the use of Blackwater’s planes by the government is difficult to obtain, but it has been well documented that U.S. intelligence agencies and the military have used private aviation companies to “render” prisoners across the globe, particularly under the Bush administration’s “war on terror.” Under this clandestine program, prisoners are sometimes flown to countries with questionable or terrible human rights records, where they are interrogated far from any oversight or due process. To avoid oversight, the government has used small private aviation companies—many with flimsy ownership documentation—to transport the prisoners. “Terrorism suspects in Europe, Africa, Asia, and the Middle East have often been abducted by hooded or masked American agents, then forced onto a Gulfstream V jet,” wrote investigative journalist Jane Mayer in The New Yorker magazine. The plane “has clearance to land at U.S. military bases. Upon arriving in foreign countries, rendered suspects often vanish. Detainees are not provided with lawyers, and many families are not informed of their whereabouts.”⁶¹ While there is nothing directly linking Blackwater to extraordinary renditions, there is an abundance of circumstantial evidence that bears closer scrutiny and investigation.

The rendition program was not born under the Bush administration but rather during the Clinton administration in the mid-1990s. The CIA, with the approval of the Clinton White House and a presidential directive, began sending terror suspects to Egypt, where, far removed from U.S. law and due process, they could be interrogated by mukhabarat agents.⁶² In 1998, the U.S. Congress passed legislation declaring that it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”⁶³ After 9/11, this legislation was sidestepped under the Bush administration’s “New Paradigm,” which stripped alleged terror suspects of basic rights.⁶⁴ This thinking was best articulated by Vice President Dick Cheney five days after 9/11, when he argued on NBC’s Meet the Press that the government should “work through, sort of, the dark side.” Cheney declared, “A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.”⁶⁵ These sentiments were echoed by the CIA’s number-three man at the time, Buzzy Krongard—the man allegedly responsible for Blackwater’s first security contract in Afghanistan—who declared the war on terror would be “won in large measure by forces you do not know about, in actions you will not see and in ways you may not want to know about.”⁶⁶

The U.S. use of clandestine aviation companies dates back to at least the Vietnam War. From 1962 to 1975, the CIA used its secretly owned airline Air America (which simultaneously functioned as a commercial airline) to conduct covert or secretive operations that would have sparked even more investigation and outrage if made public. “Air America, an airline secretly owned by the CIA, was a vital component in the Agency’s operations in Laos,” according to a paper on the CIA Web site written by University of Georgia history professor William M. Leary. “By the summer of 1970, the airline had some two dozen twin-engine transports, another two dozen short-takeoff-and-landing (STOL) aircraft, and some 30 helicopters dedicated to operations in Laos. There were more than 300 pilots, copilots, flight mechanics, and air-freight specialists flying out of Laos and Thailand…. Air America crews transported tens of thousands of troops and refugees, flew emergency medevac missions and rescued downed airmen throughout Laos, inserted and extracted road-watch teams, flew nighttime airdrop missions over the Ho Chi Minh Trail, monitored sensors along infiltration routes, conducted a highly successful photoreconnaissance program, and engaged in numerous clandestine missions using night-vision glasses and state-of-the-art electronic equipment. Without Air America’s presence, the CIA’s effort in Laos could not have been sustained.”⁶⁷

In 1975, the Church Committee began investigating the legality of U.S. intelligence-gathering practices. The CIA’s chief of cover and commercial staff told the Senate committee that if an operational requirement like the Vietnam War should again arise, “I would assume that the Agency would consider setting up a large-scale air proprietary with one proviso—that we have a chance of keeping it secret that it is CIA.”⁶⁸

Decades later, the Bush administration, waging a war many compared to Vietnam, clearly saw the need for a clandestine fleet of planes. Shortly after 9/11, the administration started a program using a network of private planes some began referring to as the “new Air America.” The rendition program kicked into high gear, as the United States began operating a sophisticated network of secret prisons and detention centers across the globe, using the private aircraft to transport prisoners. Most of the planes alleged to have been involved in renditions under the Bush administration’s war on terror were owned by shell companies. In contrast, Blackwater directly owns its aviation division and has been public and proud in promoting its military involvement.

Blackwater Aviation was born in April 2003, as the Iraq occupation was getting under way, when the Prince Group acquired Aviation Worldwide Services (AWS) and its subsidiaries, including Presidential Airways.⁶⁹ The AWS consortium had been brought together in early 2001 under the ownership of Tim Childrey and Richard Pere, who “focused on military training operations and aviation transport for the U.S. Government.”⁷⁰ Presidential Airways was the licensed air carrier, and in addition to the Afghanistan contract, it has provided CASA 212 and Metro 23 aircraft for military training contracts, including some for the U.S. Special Operations Command.⁷¹ STI Aviation was the maintenance company for the Blackwater fleet. And Air Quest Inc. provided Cessna Caravan planes equipped with aerial surveillance—it provided surveillance planes in 2000 and 2001 to U.S. Southern Command for operations in South America.⁷²

“In addition to offering solutions for firearms training, steel targets and range construction and security needs, Blackwater now offers aviation and logistical solutions for its customers,” Blackwater president Gary Jackson said in announcing the acquisition. The new aviation division “complements our strategic goal of providing a ‘one stop’ solution for all of our customer’s security and tactical training needs.”⁷³

Blackwater also began developing a surveillance blimp that could be used to spy on “enemy” forces abroad or by the Department of Homeland Security to monitor the border.⁷⁴ In 2004, Blackwater announced plans to move the operations of its aviation division to North Carolina and in 2006 sought approval to build a private airstrip with two runways for its fleet of more than twenty planes.⁷⁵ “We have a fleet of aircraft that all have customers,” Jackson said. “Every single aircraft has a contract.”⁷⁶ While the role these planes have played in the war on terror is not clear, Blackwater’s aviation wing fits the patterns of those companies that have been documented to be involved with renditions.

Blackwater aircraft have made stopovers at Pinal Airpark in Arizona, which used to be home to the Air America fleet.⁷⁷ After public scrutiny forced the CIA to dismantle its fleet and sell the airpark, a company called Evergreen International Aviation, whose board included the former head of the CIA’s air operations, subsequently purchased it.⁷⁸ As of 2006, Evergreen still owned and operated the airpark primarily as a storage facility for unused aircraft, largely because the desert climate allowed planes to survive longer with less maintenance. Not surprisingly, the company boasted in April 2006 of “four years of consecutive growth.”⁷⁹

Aside from their stops at Pinal Airpark, Blackwater-owned planes frequented many airports alleged to be implicated in the rendition program. Aero Contractors, which has received much attention recently for its connections to the CIA, was headquartered in Johnston County, North Carolina, which “was deliberately located near Pope Air Force Base, where the CIA pilots could pick up paramilitary operatives who were based at Fort Bragg [home of the Special Forces]. The proximity to such an important military base was convenient for other reasons, too. ‘That supported our principal cover,’ one former pilot [said], ‘which was, we were doing government contracts for the military, for the folks at Fort Bragg.’”⁸⁰ Former chief Air America pilot Jim Rhyne founded Aero Contractors for the CIA, and according to one pilot, he “had chosen the rural airfield [Johnston County] because it was close to Fort Bragg and many Special Forces veterans. There was also no control tower that could be used to spy on the company’s operations.”⁸¹ Johnston County is just one of the airports frequented by CIA flights, according to experts. “Typically, the CIA planes will fly out of these rural airfields in North Carolina to Dulles,” according to the authors of Torture Taxi.⁸²

A glimpse of the flight records of planes registered to Blackwater subsidiaries Aviation Worldwide Services and Presidential Airways revealed numerous flights that follow these patterns and frequent CIA-linked airports:⁸³

• Since February 2006, N964BW, a CASA 212, has flown the route from Johnston County to Dulles; been to Pinal Airpark three times; been to Pope Air Force Base twice; been to the Phillips Air Force Base and Mackall Army Air Field; and has also twice landed at the Camp Peary Landing Strip, home to the nine-thousand-acre CIA training facility known as “the Farm.”⁸⁴

• N962BW, a CASA 212, has made numerous trips between Johnston County and Dulles and has been to Camp Peary, Simmons Army Airfield at Fort Bragg, and Blackstone Army Airfield near Fort Pickett. Its last reported flight was in September 2006, when it was headed from Goose Bay, Newfoundland, a NATO and Canadian Air Force Base, to Narsarsuaq, Greenland.

• N955BW, a SA227-DC Metro, is registered with Aviation Worldwide but has no recent flights. Nor does N961BW or N963BW, both CASA 212s. All of these planes have serial numbers that have not been assigned different N-numbers.

• N956BW fell off the radar in January 2006 just after beginning a flight from Louisiana to North Carolina.

• N965BW, a CASA 212, has traveled regularly to Pinal Airpark, the Southern California Logistics Airport, which is used by the military, and has made stops in Turks & Caicos, the Dominican Republic, Bahamas, St. Croix, and Trinidad and Tobago.

• N966BW, a CASA 212, has been to Pinal Airpark, many of the same Carribean stops as N965BW, Pope Air Force Base, and has made several Dulles-Johnston trips.

• N967BW, a CASA 212, was last recorded heading from Goose Bay to Narsarsuaq two weeks after N962BW.

• N968BW, a CASA 212, which regularly stops at Johnston County, Dulles, Phillips Airfield, and Camp Peary, has been to Pope Air Force Base, Pinal Airpark, and Oceana Naval Air Station.

In addition, though Blackwater’s aircraft in Afghanistan flew normal circuits, the company was also charged with flying out of the country, including to Uzbekistan. Air Force Capt. Edwin R. Byrnes was quoted in the FAA report on the crash of Blackwater 61 as saying that one of the aircraft English and Hammer were trained to use, “[t]he Metro was going to be used like a private jet to fly to Uzbekistan.”⁸⁵ Uzbekistan has been one of the “key destinations” for both U.S. military and CIA renditions. Prisoners are alleged to have been brought there both for interrogation and repatriation from Afghanistan.⁸⁶ Also, as it happens, Blackwater’s planes in Afghanistan operate out of Bagram, a known U.S.-run detention and torture facility. According to Blackwater /Presidential’s Afghanistan contract, all personnel “are required to possess a Secret security clearance.”⁸⁷ The contract also outlined “operations security” requirements: “Information such as flight schedules, hotels where crews are staying, return trips, and other facts about the international mission shall be kept close hold and only communicated to persons who have a need to know this information. Flight crews should be aware of persons who are seeking information about the contractor, flights, etc. They should seek to maintain a low profile while operating DoD missions.”⁸⁸ In June 2007 Blackwater released a statement in response to an article in London’s Daily Mail, accusing the company of engaging in renditions.⁸⁹ “Blackwater and its affiliates do not now and have never conducted so-called ‘rendition flights,’ as the transport of detainees or terror suspects to interrogation centers has become known,” the statement said. (The paper quickly retracted the allegations.) ⁹⁰ It would take a far-reaching investigation to determine what, if any, involvement Blackwater has had in the government’s secret rendition programs. Company president Gary Jackson has been bold in bragging of Blackwater’s “black” and “secret” contracts, which are not publicly available or traceable; he claimed these contracts were so secret he could not tell one federal agency about Blackwater’s work with another.⁹¹ Under the war on terror, Blackwater’s first security contract was a “black” contract with the CIA, an agency with which it has deep ties.⁹² And then there was this development: In early 2005, Blackwater hired the career CIA spy many believe was responsible for jump-starting the Bush administration’s post-9/11 rendition program: J. Cofer Black, the former chief of the CIA’s counterterrorism center. In November 2001, when U.S. forces captured Ibn al-Shayk al-Libi, believed to have run the Al Qaeda training camp in Khalden, Afghanistan, Black allegedly requested and got permission, through CIA Director George Tenet, from the White House to render Libi, reportedly over the objections of FBI officials who said they wanted to see him dealt with more transparently. “They duct-taped his mouth, cinched him up and sent him to Cairo,” a former FBI official told Newsweek. “At the airport the CIA case officer goes up to him and says, ‘You’re going to Cairo, you know. Before you get there I’m going to find your mother and I’m going to fuck her.’”⁹³