Military contractors have largely been blessed with immunity from legal actions. Yet one legal student recommends that allowing private military contractors to be sued in some circumstances is the correct course of action.
Spencer R. Nelson, who is pursuing a J.D. degree from George Mason University law school, published an article in the George Mason University Civil Rights Law Journal, which argues that allowing private military contractors to be sued in some circumstances is the correct course of action.
Nelson uses the example of David A. Boyle, who died after crashing a helicopter. While he survived the initial impact, he drowned after not being able to open the emergency escape hatch because the water pressure on the outward opening door was too great. Boyle’s father sued the contractor who made the helicopter for not creating an inward opening door. However, the court ruled for the private military contractor, saying that where a procurement contract was at issue, federal law preempts state tort law and extends the FTCA discretionary function exception to the private military contractor.
“Should non-military persons be able to sue in tort a private military contractor who provides services negligently?” he writes. “In other words, can private military contractors who execute service contracts for the United States be granted immunity under the combatant activities exception contained in the FTCA (Federal Tort Claims Act)?”
Boyle notes that in August 2011, the Commission on Wartime Contracting in Iraq and Afghanistan stated that heavy reliance on private military contractors has “overwhelmed” the government’s ability to properly manage contractors. Therefore, the commission concluded that the government is “over-reliant” on private military contractors.
The Government Accountability Office has also noted that the Department of Defense’s contract management has been on the “high-risk-program lists” since 1992 because of weak contractor accountability. The Commission identified that the courts lack jurisdiction over some contractors for tort claims, especially foreign contractors. Because of this, the Commission recommended contract awards should contain consent to United States civil jurisdiction.
However, this type of policy would continue to foster and promote the lack of accountability that currently exists, Boyle says. He suggests following the ruling of Koohi v. United States, which stated private military contractors can be sued in some circumstances.
