A lawsuit filed by Iraq war veterans against a former Halliburton subsidiary over exposure to toxic chemicals is not the first of its kind, but it has brought new insight into the Iraq war by revealing that a contractor with close ties to the Bush administration was quietly granted legal immunity while securing oil supplies in Iraq.
Former Halliburton subsidiary Kellogg, Brown and Root (KBR) failed to notify US National Guardsmen that were exposed to a highly toxic and cancer-causing chemical while providing security for the firm early in the Iraq war. The guardsmen got sick, and thanks to a classified agreement, US taxpayers could pay the legal bills for the latest in a string of lawsuits against the massive military contractor.
Halliburton and KBR won a multi-million dollar contract in 2003 to rebuild Iraq's oil supply infrastructure shortly after the US invasion. KBR quickly began fixing the Qarmat Ali water plant, a site contaminated with sodium dichromate, a rust-remover containing the cancer-causing chemical hexavalent chromium - the heavy metal famously fought by Erin Brockovich.
Members of the Oregon, West Virginia and Indiana National Guards provided security at Qarmat Ali, and 26 of them filed a suit against KBR claiming the hexavalent chromium - and KBR's negligent and fraudulent misconduct - has made them sick.
A recent probe by Rep. Earl Blumenauer (D-Oregon) revealed that KBR's contract for the Restore Iraq Oil initiative included the only indemnity provisions provided to a military contractor in Iraq since 2001. Indemnity is a kind of legal immunity similar to an insurance policy, and in this case, makes the government responsible for paying for claims involving bodily injury or death resulting from KBR's efforts to restore the flow of oil in Iraq.
David Sugerman, the independent attorney taking on KBR on behalf of the sick veterans, explained the implication of the indemnity provisions on his web site. "If that sounds like gobbledygook, maybe it's easier to explain this way," Sugerman writes. "In addition to the multi-billion dollar payday, KBR wanted and got a taxpayer bailout for whatever harms might be caused by its misconduct."
In a letter to Blumenauer, Army Secretary John McHugh indicated that Congress was not notified about the indemnity agreement. McHugh did not provide the Congressman with any specific details because the indemnity agreement remains classified.
The Army considers indemnity provisions "only in extraordinary circumstances involving unusually hazardous risks," and KBR has not filed any claims under the provisions, according to the McHugh letter.
Sugerman writes that the indemnity revelation means the veteran's case has "wider and deeper" implications "and raises questions about war and contracting and profits."
So, what would the indemnity provisions provided to KBR reveal if declassified? And if the government knew that KBR's oil infrastructure projects would be "unusually hazardous," then why did it take months for the National Guards from Oregon to find out that they were being poisoned by toxic chemicals?
A federal court in Portland could provide the answers. Last week a federal judge in Portland blocked KBR's attempt to have the case dismissed based on a lack of jurisdiction. In his ruling, Judge Paul Papak found that KBR personnel knew about the sodium dichromate contamination at Qarmat Ali and even brought more to work with and store at the facility, but KBR personnel failed to tell the guardsmen about the contamination.
The soldiers guarded the facility from May to August 2003, when KBR finally released an official report on the contamination.
Papak also found that KBR was contractually required to report and evaluate environmental hazards and "to take all necessary precautions to safeguard personnel who might potentially be exposed to environmental hazards at work sites, including the wearing of protective gear and/or the closing down of operations at any unsafe site."
KBR continues to deny this obligation.
Veterans from across the US and Britain have reported illnesses resulting from exposure to hexavalent chromium, and KBR has already attempted to squash lawsuits filed by National Guards from Indiana and West Virginia who served at Qarmat Ali.
Exposure to the chemical can cause skin rashes, bleeding from the nose and mouth, hacking cough and other irritations. Several soldiers have reported tumors and cancers as a result of exposure, and at least two have died.
Hexavalent chromium is not the only source of legal trouble for KBR, which split from Halliburton in 2007, but remains a top government contractor. The Project On Government Oversight (POGO) contractor misconduct database shows the KBR is responsible for 22 cases of misconduct worth $126.8 million.
KBR has been sued and fined for allegedly violating the Anti-Kickback Act, overcharging the government, charging excessive contracting costs, fraud, exposing troops to unsafe water, and the list goes on.
KBR's response is consistent: deny, deny deny. The company dedicates a long list of online fact sheets in response to allegations ranging from poisoning soldiers to supporting human trafficking.
KBR maintains that it is not responsible for the presence of the sodium dichromate that contains hexavalent chromium at the Qarmat Ali facility, and KBR personnel acted according to contractual obligations when the contamination was discovered.
KBR attorneys argued before Judge Papak and in courts across the country that the firm was simply following orders while it continues to point fingers at the military. "It is apparent that since the plaintiffs cannot sue the Army, they are instead taking action against KBR," is the company's official line.
Dina Rasor, POGO founder and author of a new book on military contracts called "Betraying Our Troops," said that it's difficult for politicians, courts and the Army itself to hold KBR accountable for its misconduct. "It's like going through a buzz saw," said Rasor, who has investigated KBR for years.
Rasor said that the Army will defend and even make excuses for KBR because it relies on the contractor for so many services. Rasor said KBR has threatened the Army "over and over again" to simply stop basic services like supplying meals to the troops.
"People either fear KBR or want to work for them," Rasor said.
KBR's boldness is another symptom of an increasingly privatized war, where contractors now outnumber uniformed personnel in the Department of Defense, according to a recent Congressional Research Report.
But the 26 National Guard veterans are going after the contracting Goliath anyway. Their lawsuit has revealed something very important: KBR wanted secret legal cover when it was hired to get the oil flowing from Iraq in case it was sued, and the government was ready to give it to them. Now, the lawsuits are piling up, and taxpayers must wait and see if they will be asked to foot the bill.