Munns v. Kerry: Court Dismisses Suit Challenging Policies on Private Security Contractors in Iraq

Posted: 12:30 am EDT
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WaPo covered the ambushed and abduction of  four Americans and an Austrian employed by Crescent Security Group, a small private security firm in Iraq in July 2007.  In March 2008, U.S. authorities were reported to be in possession of five severed fingers, four of which belong to private security contractors.  In May 2008, the FBI identified the remains of the kidnapped contractors. This case was originally filed on March 22, 2010, Munns et al v. Clinton et al; case number 2:2010cv00681.

Via Opinion from the Court of Appeals for the Ninth Circuit, filed on Mar 20, 2015 (pdf):

Summary:

The panel affirmed the district court’s dismissal of the plaintiffs’ equitable claims due to lack of standing and their federal benefits claims due to lack of jurisdiction, and vacated the district court’s dismissal of the due process and takings claims for withheld back pay and insurance proceeds in an action brought against United States government officials by family members and a coworker of three Americans who were kidnapped and killed while providing contract security services during the United States military occupation of Iraq.

Opinion:

This case arises from the kidnappings and brutal killings of three Americans who were providing contract security services during the United States military occupation of Iraq. The plaintiffs, who include family members and a former coworker of these three men, brought suit against United States government officials to challenge policies governing the supervision of private contractors and the response to kidnappings of American citizens in Iraq (“policy claims”). They also claim the government is withholding back pay, life insurance proceeds and government benefits owed to the families of the deceased contractors (“monetary claims”).

The district court dismissed the policy claims for lack of standing and for presenting nonjusticiable political questions. It dismissed the monetary claims for failure to establish a waiver of the government’s sovereign immunity from suits for damages and for failure to state a claim for which relief could be granted. We hold that the plaintiffs have not shown they are likely to be harmed in the future by the challenged policies. They therefore lack standing to seek prospective declaratory and injunctive relief regarding those policies. We further hold that the plaintiffs have failed to allege a governmental waiver of sovereign immunity that would confer jurisdiction in the district court over their monetary claims. Finally, we hold that the United States Court of Federal Claims has jurisdiction over the plaintiffs’ claims for withheld back pay and insurance proceeds, and we direct the district court to transfer those claims under 28 U.S.C. § 1631. We thus affirm in part and vacate in part and remand.

Background:

In November 2006, while working for Crescent, contractors Munns, Young and Cote were assigned to guard a 46-truck convoy traveling from Kuwait to southern Iraq. The plaintiffs allege that on the day of the convoy, Crescent issued the men substandard military equipment and ordered other security team members not to accompany them on the convoy, and that Iraqi security team members slated to join the convoy failed to show up for work, leaving only seven contractors to guard the convoy. When the convoy stopped at an Iraqi police checkpoint, 10 armed men approached and, along with the Iraqi police, took five of the contractors captive, including Munns, Young and Cote. The men were held for over a year, until their kidnappers brutally executed them sometime in 2008.

The plaintiffs trace the contractors’ kidnappings and murders to Crescent’s failure to adequately prepare and supervise its personnel in Iraq. They allege Crescent’s deficient conduct was “officially sanctioned” by the Secretary of State through an unlawful order issued by the Coalition Provisional Authority (CPA) overseeing the U.S. occupation. CPA Order 17 allegedly gave “blanket immunity [to contractors] from all prosecution,” granting them a “license to kill” with impunity and permitting contractors to “circumvent the authority of Congress, the Courts, and the Constitution.”2 Additionally, the plaintiffs say they heard rumors that CPA Order 17, and the consequent lawless behavior of some security contractors, may have been the motivation behind the kidnappings.

Circuit Judge Reinhardt:

The more troubling and painful question is what the role of our government should be if and when terrorist groups like ISIS or Al Queda capture an American citizen and hold him hostage, and whether the government may, or should, impose any limitation on the rights of the citizen’s family or friends to communicate with that group or pay a ransom. It is significant that the government has told this court that currently there are no policies preventing private individuals from making efforts to secure the release of relatives who are held captive abroad. More important however from the standpoint of the legal rules that govern us, the parties bringing the action – relatives of contractors’ employees “brutally killed,” as Judge Fisher puts it, in the Middle East – seek no damages resulting from that policy but simply seek to have the policy declared unlawful. They ask that the government be enjoined from implementing the policy in the future. Again, even assuming that contrary to what the government tells us, such a policy exists, we cannot under well established legal rules render a decision that will be of no immediate benefit to the individuals bringing the lawsuit. Because the plaintiffs have no relatives currently in the Middle East, or currently in greater danger from terrorist groups than any of the rest of us, we again face only a hypothetical question – the kind that courts do not answer

Read in full online here or download the opinion in pdf file here.

 

Related item:

7 FAM 1820 Hostage Taking and Kidnapping (pdf)

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Ten Years Ago Today: FSO John Brown Quit the Foreign Service Over Iraq

March 10, 2003

Dear Mr. Secretary:

I am joining my colleague John Brady Kiesling in submitting my resignation from the Foreign Service (effective immediately) because I cannot in good conscience support President Bush’s war plans against Iraq.

The president has failed:

–To explain clearly why our brave men and women in uniform should be ready to sacrifice their lives in a war on Iraq at this time;

–To lay out the full ramifications of this war, including the extent of innocent civilian casualties;

–To specify the economic costs of the war for ordinary Americans;

–To clarify how the war would help rid the world of terror;

–To take international public opinion against the war into serious consideration.

Throughout the globe the United States is becoming associated with the unjustified use of force. The president’s disregard for views in other nations, borne out by his neglect of public diplomacy, is giving birth to an anti-American century.

I joined the Foreign Service because I love our country. Respectfully, Mr. Secretary, I am now bringing this calling to a close, with a heavy heart but for the same reason that I embraced it.

Sincerely,

John H. Brown
Foreign Service Officer

Via  John Brown’s Public Diplomacy Press and Blog Review

Two other American diplomats quit over Iraq:   John Brady Kiesling,  the first of three U.S. foreign service officers to resign, on February 25, 2003, to protest the invasion of Iraq.  Mr. Kiesling’s letter is here.   Mary Ann Wright submitted her resignation letter to then U.S. Secretary of State Colin Powell on March 19, 2003, the day before the onset of the 2003 Invasion of Iraq. Ms. Wright’s resignation letter is here.  
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Remember When – Colin Powell at the UN, Now with a New Book on Leadership

The 65th Secretary of State has a new book.  The book, “It Worked For Me: In Life and Leadership,” released today is reportedly a series of leadership parables from Secretary Powell, who now spends a lot of time lecturing and giving paid speeches.

Not too long ago, we admired Secretary Powell; we were even  fond of him, if you can call it that.  He was an inspiring leader who regularly swore in not only ambassadors but also the new classes of Foreign Service Officers.  He was known for holding morning meetings with undersecretaries and assistant secretaries but also for chatting with secretaries and maintenance workers. He was successful in gaining substantial increase in the State Department’s funding from Congress. He boosted new embassy constructions and upgraded building security. He ditched the Wang and made  Internet accessibility across the department a reality; making State, according to this, “a fully wired bureaucracy for the first time in its history.” Two other notable changes during his tenure was the Diplomatic Readiness Initiative (DRI) launched in 2001 which ramped up staffing levels under a three-year plan and his institution of mandatory leadership and management training within the organization.  So yes, folks at State and those in the foreign affairs community have exceptionally good reasons to be fond of him.  That said, we cannot ignore the large role he played in getting us into Iraq.

Here he is in February 5, 2003 at the United Nations Security Council.

If your memory is foggy, the text of his speech is here.

We have not seen the book; we’ll read it when our local library get its copy.  We have a standing policy in our house not to spend money on any book written by anyone who helped took us to war in Iraq, and that includes, retired four-star general, and former Secretary of State Colin L. Powell.

Bloomberg writes that Colin Powell Says Iraq ‘Blot’ Teaches Need for Skepticism:

“Yes, a blot, a failure will always be attached to me and my UN presentation,” the former U.S. secretary of state writes in a new book of leadership parables that draws frequently on his Iraq war experience. “I am mad mostly at myself for not having smelled the problem. My instincts failed me.”

In the lead up to the book’s publication, Dan Froomkin also writes, Colin Powell’s New Book: War With Iraq Never Debated:

All in all, Powell acknowledges that the speech was “one of my most momentous failures, the one with the widest-ranging impact.” But he also concludes that “every senior U.S. official would have made the exact same case,”

He adds: “I get mad when bloggers accuse me of lying — of knowing the information was false. I didn’t.”

The lesson of all this, Powell writes, is to follow these guidelines: “Always try to get over failure quickly. Learn from it. Study how you contributed to it. If you are responsible for it, own up to it.”

Secretary Powell’s former chief of staff, Col. Larry Wilkerson was interviewed by HuffPost about these rules.  And he said, quote: “Powell’s rules are for everyone else.”

Somehow, we don’t think that blurb will make it to the book’s jacket.

The “blot” on Secretary Powell’s record led to a $3 trillion war,  and killed more than 100,000 Iraqis. It is estimated that four to five million or about 15% of the Iraqi population was displaced during the war years.  Some 2 million Iraqis emigrated primarily to Syria and Jordan; some went to Egypt, Lebanon, the Arab countries and Europe. The Middle East Institute says that “the United States has taken in fewer than 10,000 under a strict visa policy that has come under increasing criticism.”

The Iraq War left 4,487 U.S. service members dead and officially, 32,226 U.S. service members wounded. The US Government has yet to calculate the physiological damage the Iraq war has brought to our young men and women in the armed services and the cost of hundreds of civilians and private contractors killed, maimed and broken in Iraq.

We will eventually read the book and see how much of the Iraq War he owns up to in this new book, Frankly, we’ve gotten tired of hearing that mistakes were made but never learned who were responsible for such mistakes.  Or if this is, as these books tend to be — one more history bending, finger-pointing exercise that’ll break our hearts.

Domani Spero