At Issue: Accountability for Contractors in Combat Zones
The Supreme Court justices heard arguments this week in a closely watched case examining whether military contractors should have absolute immunity from lawsuits over alleged negligence in war zones. The case, Hencely v. Fluor Corporation, centers on a 2016 suicide bombing at Bagram Air Force Base in Afghanistan, where an Afghan employee working for contractor Fluor detonated an explosive vest, injuring U.S. service member Winston Hencely.
Precedent and the Boundaries of Immunity
Fluor cited the precedent of Boyle v. United Technologies Corp., a 1988 Supreme Court decision protecting contractors from state-law lawsuits for actions required by a government contract. But plaintiffs argued Fluor failed to follow base rules and was negligent, which was not mandated by its contract. Several justices, notably Justices Kagan and Sotomayor, questioned whether any immunity should apply when contractors’ conduct was not directed or approved by the military and may have violated military policy.
Government Control Versus Contractor Independence
Justices raised questions about whether immunity should only apply if state law actually conflicts with military orders, highlighting that federal regulations specify that immunity is not guaranteed if contractors act independently of government direction. Justice Gorsuch noted that Pentagon regulations seem to allow liability in cases where contractors fail to follow specific directives—suggesting fairness in holding them responsible for violations.
Implications for Military Accountability
The Court’s decision is expected to clarify when, and under what circumstances, contractors can be sued for mishaps in war zones. There appeared to be a strong majority skeptical of extending sweeping legal protections, with only Justice Kavanaugh signaling strong support for blanket immunity. The outcome could change how military operations, base security, and private defense contracting work in high-risk environments.