Aside from these questions of fact, the extent to which private military contractors like KBR share the government’s immunity from being sued is an unsettled area of U.S. law.
“It’s incoherent,” said Stephen Vladeck, a professor at the University of Texas School of Law who writes for the blog Lawfare. Military contractors can be court-martialed or indicted in the United States for their actions overseas, he said, but judges are all over the map on the question of whether they can be held liable for negligence and other civil misconduct. If the Supreme Court doesn’t step in to “clean up the mess,” he said, Congress should pass a law making it clear one way or the other. “And if the contractors really aren’t going to be held liable,” he said, “by what mechanisms are they going to be held to account?”
What happens if the veterans win?
If the case is reinstated, the plaintiff veterans will still have to litigate the complex medical question of causation. KBR denies that burn pits are harmful to human health. “Military personnel deployed to Southwest Asia were exposed to many hazardous conditions, including the harsh ambient air,” a representative of KBR wrote in an emailed statement. “The government’s best scientific and expert opinions have repeatedly concluded there is no link between any long-term health issues and burn-pit emissions.”
If the Court of Appeals upholds the dismissal, only the Supreme Court will have the power to reinstate the case.
“I don’t want to sugarcoat it,” Vladeck said. “The plaintiffs face an uphill battle.”
Is Congress doing anything about this?
After years of inaction, Congress has shown some inclination to intervene. In 2010, lawmakers banned the military from using burn pits except where there was no feasible alternative. In 2013, Congress mandated the creation of the V.A. registry, and the 2018 defense-spending bill required the V.A. to coordinate further research on the effects of burn pits. On May 1, members of the House of Representatives announced the creation of a bipartisan congressional caucus on burn pits, and a hearing on veterans’ health issues is scheduled for June.
Congress has the power to direct the V.A. to presumptively grant disability benefits to veterans with lung disease if they were exposed to burn pits, but so far no member of Congress has proposed a bill to do so.
The Veterans of Foreign Wars is trying to change that. “For every generation’s war, there is some toxic exposure,” said Kenneth Wiseman, the V.F.W.’s associate legislative director. “In Vietnam it was Agent Orange. Then gulf war syndrome. Now burn pits.” He said the V.F.W. is currently lobbying Congress to direct the V.A. to create a list of illnesses presumed to be caused by burn-pit exposure. The V.A. would grant disability benefits to any Iraq or Afghanistan veteran with a listed condition, so that “individuals don’t have to assemble mountains of evidence one by one.”
That is what Congress did for Vietnam veterans exposed to Agent Orange, but not until 1991 — 16 years after the Vietnam War ended, 22 years after a National Cancer Institute study demonstrated a link between Agent Orange and cancer in mice and 25 years after the scientist who helped invent the defoliant first sounded the alarm over its potential harmfulness to humans.