Blackwater USA Out-Maneuvers US Justice System

“Blackwater [USA] sees themselves as outside the law. They do anything they want.”

Katy Helvenston-Wettengel told me just days before Blackwater attorneys put her under a gag order. In March of 2004 her son and his three colleagues were killed in a Fallujah ambush by insurgents. The ambush led to the lynching seen around the world. The gruesome scene in Fallujah catapulted Blackwater to national attention. And because they “died for their company, not their country” their deaths have also led to a long court battle between Blackwater USA and the contractors’ families. Helveston says in a tired voice,

“Nothing’s been the same. I can’t sleep anymore. My life and the war changed that day.”

Ever since that day the families have been asking questions of Blackwater about the incident and how it was that their loved ones were put into a fatal situation. They were told again and again that the information was confidential. Finally they were invited to Moyock North Carolina, Blackwater’s headquarters, for a memorial service honoring their spouses and children. Ms. Helvenston told me, “We thought finally we will get some answers.” But Donna Zovko, whose son was also killed, describes what happened instead, in her February Congressional testimony: “We thought finally we will get some answers. My husband was asking where are my son’s things, the things that belonged to my son. How did he die? And she [the Blackwater spokeswoman] said that was confidential.”

Katy reported to me, “It was at this point the spokeswoman stood up from the conference table where we were all sitting and said if you want that information you’re going to have to sue. And she walked out.” Katy paused before going on. “When we walked out of there we were all devastated. We couldn’t believe they had treated us that way.”

In January 2005 the families filed a landmark lawsuit against Blackwater. The lawsuit says that Blackwater broke its contractual obligations to the four men by sending them into a hostile area in unarmored vehicles and without proper weapons or a rear gunner.

“They fought us every way they could,” said Katy Helvenston. “They tried everything to get the case thrown out.”

For two years Blackwater tried to get the case moved from state court to federal court, believing it would get a more favorable hearing. They appealed all the way to the Supreme Court, hiring Kenneth Starr, who investigated President Clinton, to argue the case. This was a very important case not only for Blackwater but also the entire private military industry. A successful wrongful-death suit would set a precedent for holding private companies liable when their contractors are wounded or killed on their jobs.

Blackwater contends that they have become an integral part of the “total force” and should be held immune from liability under the sovereign immunity principle, which keeps soldiers from suing the government. “You can’t separate the contractors from the troops anymore,” said Joseph Schmitz, one of Blackwater’s general counsels.

After the Supreme Court declined to hear the appeal in February, Blackwater on May 11th persuaded Senior U.S. District Judge James Fox to move the case into arbitration, thus ending the court case. The judge sided with Blackwater’s contention that there could not be a lawsuit because of the 18-page contract that the four had signed. When they signed the contract they gave up a list of rights, including the right to sue the company. The contract says that any dispute with Blackwater must be resolved by binding arbitration. Also the contract stipulates that the arbitration must be under the rules of the American Arbitration Association, a private nonprofit organization that facilitates non judicial settlement of disputes. Under those rules all of the deliberations and final decision are confidential. Also the arbitrators’ decisions are final and subject only to limited review by the courts.

One of the three arbitrators is William Webster, a former director of the FBI and CIA during the Reagan administration. Mr. Webster also has ties both personal and business to several Blackwater lawyers. Another arbitrator proposed for the panel was William Sessions, a former FBI director whose firm represents Blackwater.

Webster despite claims by the families’ attorney of “glaring conflicts” was allowed to serve on the panel. In his disclosure statement Webster reported that his law firm has business relationships with three of Blackwater’s law firms. In addition, Webster is acquainted professionally with Kenneth Starr and another former Blackwater lawyer, Fred Fielding, and he serves on a corporate board with Joseph Schmitz, chief operating officer and general counsel of Blackwater.

When I asked Ms. Helvenston about Blackwater’s $10 million counter suit against the families’ attorney she responded, “It’s actually against the estate trust that we had to set-up for our lawsuit against them. There isn’t any money in the estate at all.”

Blackwater went before Wake County Superior Court Judge Donald Stephens in a Raleigh North Carolina hearing regarding the case against the estate. At he conclusion of that hearing Judge Stephens said to the Blackwater attorney, “There are some fundamental due-process rights, including right to trial by jury… They may not exist necessarily in other courts, but they exist in this court…If you violate this order, you violate it at your peril.”

Katy Helvenston keeps asking as she did in a NY Times article, “Why did Blackwater choose to make a profit over the safety of our loved one?”

It appears that now Blackwater will be able to keep her from knowing the answers to her questions. But as she told me, “They may keep me from talking about the case but they can’t keep me from talking.”

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