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Battlefield Immunity Fights Rage On, CIA Torture Case Shows

July 13, 2017, BNA's Federal Contracts Report

Alex Sarria is quoted in a Federal Contracts Report article regarding the assertion of immunity defenses by contractors on the battlefield. According to Sarria, major decisions over the past decade and a half have illustrated the overwhelming federal interests that are at stake when government contractors accompany forces into a foreign war zone. Allowing “garden-variety tort claims to invade the battlefield actually undermines the military imperative of maintaining unified command and control over every aspect of an operation, including the work of contractors," he says.

Sarria adds that the U.S. Constitution authorizes the executive branch, not courts, to determine whether a contractor performed satisfactorily on a foreign battlefield. “War zones are inherently risky environments, and both the military and its contractors need the certainty and predictability of answering to a single chain of command."

Sarria notes that battlefield contractors have learned to spend more time preparing for litigation risks when bidding on military support contracts. “Most contractors now conduct formal pre-award assessments of the tort risks and liabilities that could emerge from such contracts, which include a ‘gap analysis’ of their commercial insurance coverage and a review of the immunity, indemnity, and cost recovery mechanisms that may be available from the government,” he says. “By focusing on these risk-mitigation measures at the outset of a procurement, and consciously developing facts throughout contract performance that lay the groundwork for federal defenses, these contractors are far more prepared to respond to tort suits down the road.”

 

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