Last week saw a disturbing turn of events in a lawsuit brought by 64 family members of victims of the Blackwater/Xe private security contractor against its owner and CEO, Erik Prince, for the 2007 massacre in Nisur Square, Baghdad, and other shooting incidents in Iraq. After attorneys for the victims settled the case for an undisclosed sum of money, some of the victims objected, leaving their lawyers in the unenviable position of having to argue to a federal judge that they didn’t have their clients’ permission to settle it. What should have been a public airing of the notorious business practices of the “world’s largest private army” has now become an investigation, by Blackwater/Xe, of the victims and their relationship with their lawyers.
Settlement discussions appear to have been motivated by last month’s ruling by Judge TS Ellis that the case would proceed against Prince, but the victims would have to show that Prince wanted incidents like Nisur Square to occur, or that he knew in advance that the Nisur Square massacre would occur. The victims did not argue respondeat superior—that an employer can be held liable for what his employees do on the job. Instead, they argued that Prince hated Muslims and intended that his employees commit the crimes.
Perhaps the victims‚ lawyers were concerned that Prince had set up so many corporations, and then reorganized Blackwater as Xe, that they could easily be suing a legal entity that has no assets and is just a shell for something else. Whatever the reason, Judge Ellis decided that if Prince were to be sued personally, the victims would have to show his personal intent to commit the crimes. Although the victims claim to have evidence of this, it would seem to be an extremely difficult standard to meet.
After Judge Ellis’ ruling, the plaintiffs negotiated a settlement with Prince, of some undisclosed amount of money. Apparently, the deal was made under extreme time pressure. The victims‚ lawyers contacted a translator working for them in Iraq. The translator obtained verbal authorization from all 64 clients, and the lawyers quickly filed a stipulation to this effect in court. (A stipulation is legal term for a private agreement between parties resolving some issue—in this case, voluntarily dismissing the case with prejudice in exchange for money. A judge is normally powerless to change this kind of agreement if one side later changes their mind.)
Unfortunately, some of the plaintiffs seem to have misunderstood the terms of the settlement, and refused to agree to it after it had already been filed in court. According to the victims‚ lawyers, their representative in Iraq failed to advise the clients of “the total value of the settlement, the amount likely to be paid to the client in question, the fact that the settlement required participation by all claimants, and the duties imposed on the participants to the settlement.” Apparently, there was also a dispute over the portion of the settlement to be paid to the attorneys. After some plaintiffs objected, the attorneys asked the judge to vacate the settlement and give them permission to re-file the case.
Prince responded that he wanted the court to hold an evidentiary hearing, and the opportunity to investigate what happened for himself through discovery. The judge granted Prince’s request, and an evidentiary hearing will be held on Jan. 12, 2010, in the US District Court for the Eastern District of Virginia. At the hearing, the parties will present evidence as to whether the plaintiffs authorized their attorneys to agree to the settlement. To prepare for this hearing, Blackwater/Xe will probably take a deposition of the plaintiffs‚ translator as well as the victims‚ family members themselves.
No doubt, the victims‚ attorneys believed that settling the case was in their clients’ interest. And getting 64 people to agree must have been a challenging task. Now the deal may have fallen through, and the victims may have to go to trial with a case their lawyers don’t think they can win. That would be the worst outcome of all—no one would get anything, and Prince would be able to say he was vindicated in a court of law.
The Jan. 12 hearing will most likely be a painful experience for everyone but Erik Prince. If he takes depositions of the victims, they will no doubt feel intimidated. The lawyers will be arguing an embarrassing position—that they settled the case without their clients’ permission. This is what they will try to convince the judge. And if they prevail, they will probably hurt their clients in the long run.
The only good news to come from this is that Judge Ellis’ opinion affirmed the principle that private military contractors can be sued for murder in foreign wars. That should have a positive effect on curbing their bad behavior. It’s too bad this may not be the outcome in this paradigm case.
Documents from the case can be found online at Expose the War Profiteers
Paul Wolf for World War 4 Report
See our last post on Iraq.
Please leave a tip or answer the Exit Poll.
After writing this article, it was brought to my attention that a second civil lawsuit was brought by other victims of the Nisur Square shooting, in North Carolina State Court. In this smaller action, the victims include family members of three individuals killed in the incident, and three others who were seriously injured. The North Carolina plaintiffs, represented by the firm of Lewis & Roberts, PLLC, are not involved in the settlement in the Virginia case described above.
This case is unlikely to suffer the same fate as the one in Virginia. The North Carolina plaintiffs are suing a web of 15 corporations in the US and abroad, Mr. Prince himself, and the six individuals named as defendants in the criminal case. They are also suing under North Carolina’s wrongful death statute, and other state laws, rather than the Alien Tort Claims Statute (ATS). This simplifies the case considerably and eliminates the need to prove that any of the defendants – including Mr. Prince – ‘intended’ that the Nisur Square massacre occur.
My understanding is that North Carolina’s statute doesn’t place a cap on damages, and the plaintiffs do not need the ten year statute of limitations of the ATS, so framing this as a simple wrongful death action should avoid many complex legal issues. Blackwater/Xe successfully removed the case to NC Federal court, and the plaintiffs are trying to get it remanded back to state court. The defendants argued that it must be heard in Federal court because it involves questions of Federal law. The plaintiffs do not believe that it does, and probably fear that a Federal judge will agree, dismiss the case, and force the plaintiffs to start all over. This is not a fatal issue by any means, and wherever it ends up, I think the plaintiffs should have a very strong case.