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.
“Ah [expletive] [expletive],” English called out.
Rowe said, “Call it off. Help him, or call off his airspeed for him . . . Butch.”
Copilot Hammer: “You got ninety-five. Ninety-five.”
Pilot English: “Oh, God. Oh [expletive].”
Engineer Rowe: “We’re goin’ down.”
“God.”
“God.”
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:
The proper inquiry, according to the court, was whether the claim would require the court to question the military’s mission and response to an attack. If the military was responsible for securing the facility, resolving the matter would require “second-guessing military decision-making” and evaluating the conduct of the military—a political question. However, if the contractor was primarily responsible for securing the dining hall under its contract, the suit would be justiciable. Concluding that “there is a basic difference between questioning the military’s execution of a mission and questioning the manner in which a contractor carries out its contractual duties,” the court foreshadowed the conclusion drawn here: the former situation presents a political question, while the latter does not.
49