My brother spent a career in the Army Special Forces. My son graduated from West Point and flies Army helicopters. I have listened to two generations of family describe what happens when the people around them on a deployment do their jobs, and what happens when they do not. Specialist Winston Hencely learned that lesson in 2016, when a Taliban operative walked onto a U.S. base in Afghanistan in a suicide vest.
The bomber, Ahmad Nayeb, was on Fluor Corporation’s payroll under Afghan First, the Army’s local-hiring program. Hencely tackled him before he reached a larger crowd, and survived with a fractured skull and brain injuries. Five soldiers did not survive, and 17 more were wounded. The Army’s own investigation found Fluor had negligently supervised the man who killed them.
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Hencely sued Fluor in state court, alleging exactly what the Army had already found. Fluor’s answer was not that it did nothing wrong. Its answer was that the lawsuit could not exist at all, because the misconduct happened in a war zone, and war zones, Fluor argued, come wrapped in a legal force field. Anything a contractor does under a military contract in combat is off limits to a state courtroom, the theory went. Call it the contractor’s version of a Monopoly card: pass the war zone, collect immunity, do not stop at a jury.
I have spent 30 years underwriting risk for a living. Risk shifted by contract from the party who caused harm to the party who suffered it is not risk management. It is laundering, wrapped in a legal brief.
Federal preemption is not a favor courts extend to contractors, and it is not a blanket the Constitution throws over anyone standing near a battlefield. It is a narrow doctrine that displaces state law only when a specific, valid federal directive actually conflicts with it.
The U.S. Court of Appeals for the Fourth Circuit bought Fluor’s broader version anyway, ruling that the Federal Tort Claims Act’s exception for the government’s own “combatant activities” effectively extended to private contractors too. On April 22, the Supreme Court reversed, 6-3, in a decision written by Justice Clarence Thomas.
The FTCA’s combatant-activities exception protects the federal government from wartime tort suits. Congress wrote that trade for the United States, not for Fluor. Stretching an exception Congress gave itself to cover a private company is not interpretation. It is a gift the company wrote for itself and asked the courts to notarize.
This is not a story about a villainous contractor. Defense contracting carries enormous exposure in combat zones, and the industry has spent two decades building a doctrine called “battlefield preemption,” arguing that judges have no business second-guessing decisions made under fire. There is a real argument in there, but Thomas draws the line where it belongs. The government must have actually ordered or authorized the specific conduct challenged, and Fluor’s Afghan hiring and screening protocols were Fluor’s own, negligently supervised, not the Army’s tactical call.
The Army investigated the same conduct and found Fluor primarily responsible for the attack. Fluor then spent nine years in litigation arguing that the finding was beside the point, asking a court to hold it to a lower standard than its own client already had. (Fluor’s brief also leaned on an eighty-six-year-old case about a government dredging contract on the Missouri River. Somewhere, a Depression-era dredge operator is bewildered to learn he has been cited in Afghan War tort litigation.)
WE GAVE EVERYTHING TO FIGHT TERRORISTS — BIDEN ARMED THEM. WHERE’S THE APOLOGY FOR KABUL?
For families like mine, with people who have worn the uniform, this matters beyond the legal trade press. The next Winston Hencely gets his case heard, instead of watching a company argue that a war zone is a lawsuit-free zone. Contractors will start documenting who ordered what because a vague claim that the government wanted them there will not survive a motion to dismiss anymore. Insurance costs will rise, and compliance paperwork will multiply. Good. A company chasing the extraordinary margins of wartime contracting can carry the ordinary burden of American tort law when it gets something fatally wrong.
The Constitution did not create a class of citizens whose injuries stop counting because of geography. Congress wrote the FTCA’s exception for itself, not for Fluor’s benefit. The Supreme Court told every contractor working under a military badge that showing up in a combat zone earns respect, not immunity. Hencely fought once to stop the man who tried to kill him. The court just gave him a chance to finish that fight in a courtroom.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
