HOUSTON (AP) – Former civilian truck drivers who drove into a deadly ambush in Iraqi in 2004 are getting a chance to revive their case in a rare closed hearing before a federal appeals court, nearly a year and a half after another federal court dismissed the matter.
Several former KBR Inc. truck drivers and families of those killed appealed the dismissal to the 5th U.S. Circuit Court of Appeals in New Orleans, which is scheduled to hear the case Wednesday.
The drivers and families say KBR, the former Halliburton subsidiary, knowingly sent the truckers into a deadly combat zone, where they were attacked by Iraqi insurgents on April 9, 2004.
The ambush killed six KBR drivers and two soldiers and seriously injured numerous others. One KBR trucker and a plaintiff, Reginald Lane, had an arm blown off and suffered irreparable brain damage.
In September 2006, a federal judge in Houston threw out the lawsuit against Halliburton, ruling the Army played an integral part in decisions to deploy such convoys and he had no authority to second-guess the military.
"The court finds that it cannot try a case set on a battlefield during wartime without an impermissible intrusion into powers expressly granted to the Executive by the Constitution," U.S. District Judge Gray Miller wrote.
A three-judge panel of the 5th Circuit is scheduled to hear arguments Wednesday. In an unusual move, however, the appeals court agreed to close the hearing to the public.
In a letter dated Dec. 21, defense lawyers asked for the courtroom to be closed to anyone without permission to view "confidential information" in the case, including an Army investigative report on the ambush.
Lawyers for the truckers didn't object to closing the hearing. Roger E. Hawkins, who represents Lane, said the 5th Circuit has an "enormous amount of discretion" in such matters and he didn't think challenging the request would do any good.
But, he added, "we see no reason why the hearing could not be conducted in a public session."
Hawkins said the heart of the case is not about protecting military secrets but exposing fraud in the form of deceitful employee recruiting.
In briefs filed with the 5th Circuit, the former drivers and families say KBR promised that "safety came above all else, and that anyone … had management's personal authority to stop unsafe activity on the spot."
Yet, they claim, despite having advance notice of imminent attacks in April 2004, KBR sent the civilian convoys to deliver fuel to U.S. troops. KBR has since split from Halliburton and operates as its own, publicly traded company.
The Los Angeles Times reported last year the convoy consisted of 26 vehicles — 19 KBR trucks and seven military vehicles. Just six trucks made it to their destination, according to the newspaper, which interviewed trucks drivers and reviewed internal memos, e-mails and court-sealed depositions, among other documents.
"KBR is hiding from these cases," one of the appellant briefs says. "It has not found a single court in the country that has dismissed a fraud claim for damages as a political question. … Requiring truthful statements in recruiting does not trespass on the prerogative of the political branches."
Briefs filed by KBR with the 5th Circuit were not made public.
In a statement, KBR said the "safety and security of all employees" remains its top priority. It said it still grieves for those lost in the April 2004 attack.
"As this is a matter involving ongoing litigation, it is inappropriate to comment further at this time," the statement said.
The former drivers were among thousands of workers recruited by KBR, the Houston-based military contractor and engineering and construction outfit, to provide support services to U.S. troops, including fuel delivery.
KBR spokeswoman Heather Browne said the company has had 110 workers killed in Iraq since it started working under a multibillion-dollar U.S. military contract in 2003.
Associated Press Writer Michael Kunzelman in New Orleans contributed to this report.