Civilian Warriors: The Inside Story of Blackwater and the Unsung Heroes of theWar on Terror (23 page)

In the end, handling of the case boiled down to another crucial aspect of the service agreement. In signing it, each of the four contractors had agreed—as all our contractors had—that any disputes with my company would be settled “
by binding arbitration
according to the rules of the American Arbitration Association,” a not-for-profit organization that resolves disputes privately, out of court. There would be no plaintiff’s right to discovery in arbitration, and the contract explicitly waived “
the right any of them may have
to a trial by jury in respect to any litigation” arising from their work with Blackwater.
That closed-door policy was crucial
“in order to safeguard both our own confidential information as well as sensitive information implicating the interest of the United States at war,” our legal team explained.

The plaintiffs contended they were not beholden to personal service agreements signed by their deceased relatives, but in May 2007
Senior U.S. District Judge James Fox agreed with Blackwater’s position and ordered the two sides to appear before a three-member arbitration panel.

For almost a year and a half,
my company paid both our side
and the families’ side of that arbitration process—amounting to hundreds of thousands of dollars. I was willing to do that, for a time, because we all wanted the case to be resolved. Eventually, however, the plaintiffs’ refusal to contribute any money whatsoever to the process led us to stop bankrolling both sides, and the arbitrators threatened to close the case before reaching a conclusion.

Callahan’s team bristled at the notion,
emailing the arbitrators directly
: “When [your] family members and loved ones read about the Fallujah incident in their textbooks or in the numerous news stories, and then ask you how you handled the case, will you tell them that you just threw it out because you didn’t get paid?”

In June 2010, the arbitrators did just that. “
While the record shows
that the panel has worked extensively without compensation but is no longer willing to do so, the parties now have the case at a standstill with no prospect for improvement,” they explained. “We therefore regretfully conclude that the Arbitration should be and is hereby terminated and the case is dismissed.” Six months later, Judge Fox refused to send the case back to state court, and in January 2012, seven years after the lawsuit was filed, the families quietly agreed to a minimal cash settlement. Split four ways, it covered barely a fraction of the court costs.

I felt no joy in that outcome. The only sense of relief I got was in seeing the entire sordid affair finally come to an end. Apparently I wasn’t alone: “
It’s pretty much destroyed my life
,” Helvenston-Wettengel said of the lawsuit.

•   •   •

I
t was a Pyrrhic victory for Blackwater. Over the duration of the drawn-out case, as Callahan faced increasingly slim odds of winning his clients the massive decision he’d surely promised them, the
lawyer instead focused on manipulating public opinion, tarnishing the good we had done and the brand I had built.

In criminal cases, of course, the defendant is always assumed to be innocent. The burden falls upon the state to prove he’s guilty beyond a reasonable doubt. It can be quite a hurdle to clear. In personal injury cases like the Fallujah suit, however, all the plaintiff needs is a preponderance of evidence. It’s a vastly lower standard: If a judge or jury simply believes there is more than a 50 percent chance the defendant was negligent in causing injury to the plaintiff, the accuser wins. So showmanship counts as much as the facts do—in the courtroom and out—and in preparation for a jury trial that would never come, Callahan hired a
PR firm that proudly boasted
, “The other side is watching as the dispute takes shape in the court of public opinion. The best communication strategy will weaken the opposition’s position and encourage the most favorable resolution.”

That company, Washington-based Levick Strategic Communications, fancies itself a dealer in “Global High-Stakes Communications.” I remember at one point looking over the firm’s Web site and seeing
two overarching options for potential customers
: “Get Me In the News” and “Get Me Out of the News.” I first heard about Richard Levick’s company back in 2002, when it devised a spin campaign for a dozen Kuwaitis jailed in the military prison at Naval Station Guantánamo Bay, Cuba. In the aftermath of the 9/11 attacks, the men were accused of having ties to al-Qaeda and the Taliban; lawyers for the Kuwaitis’ families insisted they were in Afghanistan performing charity work. Those lawyers hired Levick’s firm to spread that message. “
To be sure,” Levick later explained
in an article at WorkinPR.com, “the [lawyers] recognized that a top-notch legal effort would not be sufficient. The cases would have to be pled in the court of public opinion just as surely as they would be pled in a court of law.”

Levick, whose firm charges
as much as $40,000 per month, designed a PR strategy “to create an environment where reporters knew that this issue
deserved open-minded coverage
.” According to Levick, it produced “
literally thousands of news placements
” for his
clients. I was shocked by some of those stories at the time, but with them as a public cudgel, the detainees’ lawyers ultimately argued for the release of ten of the men, despite objections from the U.S. military that they presented a continued threat. “You often hear lawyers and clients disclaim any attempt to directly influence juries and judges,” Levick concluded. “
Nonsense
! PR does just that, and it does so honorably.”

Five of the men, including Abdallah Salih al-Ajmi, were set free in July 2006. Then, at six fifteen a.m. on March 23, 2008, thirty-year-old al-Ajmi
drove a pickup truck
filled with some ten thousand pounds of explosives onto Combat Outpost Inman outside Mosul, Iraq. With a flash that left a thirty-foot-wide crater in the ground, al-Ajmi
detonated a bomb that killed
thirteen Iraqi soldiers and wounded more than forty more. I’ve always wondered how Levick felt about that.

Regardless, he clearly got one thing right.
A “Drive the Narrative” section
formerly on Levick’s Web site read, “In a world where 80 percent of what people hear about your company is determined by others, the plaintiff’s bar controls the story, the bloggers dictate the editorial calendar, and the regulators define the agenda.” Accuracy doesn’t have to enter into it.

The talking heads who fed the twenty-four/seven news beast said and did just about anything to make for good TV—including a ridiculous March 2008 piece of ambush journalism I believe Levick’s team coordinated, in which ABC reporter Brian Ross and his cameraman jumped out at me in a parking garage as I climbed into my Chevy SUV. And Callahan seemed all for it.

Soon, leaks about the Fallujah case were everywhere.
Callahan told eager reporters
, “I have found the evidence concerning Blackwater’s involvement in the deaths to be overwhelming and appalling.”
Blogs posted stories with headlines
such as “Blackwater Plumbs New Depths of Shame in Fallujah Contractors Case.”

As my legal team battled through the various suits and countersuits, I stumbled across one incendiary column on the blog
AlterNet
,
authored by Callahan and Miles, which dramatically ratcheted up the PR battle.
It was headlined
“Blackwater Heavies Sue Families of Slain Employees for $10 Million in Brutal Attempt to Suppress Their Story.” It provided perfect grist for the far-left Web mill, which happily reran it all over the place.
The piece asserted
, “Blackwater has now lifted this atrocity to a whole new level by going on the offensive and suing the families for $10 million. The families now find themselves looking down the barrel of a gun as Blackwater, armed with a war chest and politically connected attorneys, is aggressively litigating against them. . . . The families are simply without the financial wherewithal to defend against Blackwater. By filing suit, Blackwater is trying to wipe out the families’ ability to discover the truth about Blackwater’s involvement in the deaths of these four Americans and to silence them from any public comment.”

It was yet another PR-driven accusation devoid of accuracy or context. I would never have sued those families, nor the estates that Batalona, Helvenston, Teague, and Zovko left to their loved ones. Reading that column was the moment that the business of that lawsuit—such that a civil suit can be considered “business”—became personal for me.

Among the details Callahan didn’t include in the column was the fact that none of the four murdered men was from North Carolina, where Blackwater was headquartered. So Callahan’s team had to invent jurisdictions to sue us there. To do so, he hired North Carolina–based David Kirby, the former law partner of disgraced Democratic politician John Edwards, and they established “ancillary estates” in the Tar Heel State for each of the deceased. The move didn’t initially make sense to me—until it was explained that “ancillary estates” is legal jargon for entities that exist only on paper to move money around. They had no assets at all. The ancillary estates were shell companies, basically.

In an effort to stop the suit from moving forward, Blackwater countersued those shell companies, along with Richard Nordan, an associate of Kirby’s who acted as administrator of the hollow
estates, for violating the Blackwater service agreements those men had signed, which prevented lawsuits. We sought no damages from the families or their actual estates whatsoever.

Of course, no one at Blackwater could clarify that because by that time we were saddled with the State Department gag clause that effectively prevented us from defending ourselves. And as the case dragged on, and public opinion of my company fell further and faster, Blackwater began attracting ever greater scrutiny from Washington. The war in Iraq was becoming a viciously partisan issue, and with relentless smears about my company in the news, Blackwater practically fell into the laps of emboldened politicians. And if Callahan can be said to have done anything well in this case, it was to lean on the fact that the trial lawyers’ trade association remains one of the largest donors to the Democratic Party, and then insidiously tie his civil court case into the nation’s larger political debates.

•   •   •

M
uch like the absolute privilege afforded lawyers during court cases, I soon learned, legislative immunity exists for congressional statements and documents. Running the nation, the theory goes, is far too important a task for our lawmakers to worry about misspeaking or citing inaccurate statistics in the course of establishing facts and creating legislation. In fact, it’s such a fundamental necessity, our Founding Fathers established a form of legislative protection in Article I, Section 6 of the United States Constitution. In what is often
referred to as the “Speech or Debate Clause
,” the section provides in relevant part that “in all Cases, except Treason, Felony and Breach of the Peace, [senators and representatives shall] be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Not only could Callahan make wild assertions in legal papers, advancing theories that would be parroted in the media until becoming entrenched conventional wisdom, but those same allegations could ricochet around the halls of Congress with no penalty for those who latched onto the sensationalism to score political points. Lawmakers speechifying from a bully pulpit on Capitol Hill would influence public perception far more than some judge in a court of appeals—Callahan just had to figure out how to get them to broadcast his talking points.

Democrats such as North Dakota senator Byron Dorgan and California representative Henry Waxman had previously shown themselves eager to pick through Blackwater’s inner workings, though they accomplished little while in the congressional minority. But in the November 2006 elections, spurred in part by anger over the war, voters handed Democrats control of both the Senate and the House of Representatives. Nancy Pelosi, a Democrat from California, was elevated to Speaker of the House. And a month after the election, Pelosi—along with Waxman and Dorgan—
received a letter from Callahan
in which he decried “deplorable conduct by war profiteers such as Blackwater” and said the actions of my “extremely Republican” company “led to the death of at least four American citizens—all in the name of corporate greed.”

I found it conspicuous that neither the chairs of the House and Senate Armed Services Committees, which have authority over the Pentagon’s budget, nor the chairs of the House International Relations Committee or the Senate Foreign Relations Committee, which oversee State Department funds, received that letter. Then again, it was clear by now this wasn’t really about profits—at least not my own.

Callahan told Pelosi, Waxman, and Dorgan (along with Nevada senator Harry Reid, the new Senate majority leader, and Maryland representative Chris Van Hollen, the new chairman of the Democratic Congressional Campaign Committee, who also received the
letter) of his “
precedent-setting lawsuit
concerning Blackwater’s wrongful conduct.” He pledged to expose the “
lack of accountability for private security
contractors operating in Iraq.”
Callahan concluded with this request
:

As American citizens, we hereby petition you to initiate, support, and continue the Congressional investigations into war profiteering and specifically Blackwater’s conduct. Now that there has been a shift in power in Congress, we are hopeful that your investigation, as well as the investigations by Senator Dorgan and Congressman Waxman, will be taken seriously by these extremely Republican companies, such as Blackwater, who have been uncooperative to date, and that these investigations will be fruitful and meaningful. To the extent that we can provide any assistance to you or these Congressional committees, we will do so to the extent permitted by law.