There are men in the world who derive as stern an exaltation from the proximity of disaster and ruin, as others from success.
— Winston Churchill, The Malakand Field Force
KBR will long remember August 7, 2009. Cheryl Harris will long remember August 7, 2009. Each will remember it for the same reason. That was the day they learned that a team of investigators from the government had concluded that KBR should not be held criminally responsible for its negligence. It arrived at that conclusion because of a unique legal theory the investigators developed in connection with the electrocution in Iraq of Cheryl Maseth’s son, Staff Sgt. Ryan Maseth.
KBR is known for its ability to get contracts for reconstruction in Iraq notwithstanding its demonstrated incompetence and its criminal activities in countries other than Iraq. Its demonstrated incompetence has been covered here and in countless other venues. It was rewarded for its incompetence by receiving $615 million for certain reconstruction work in Iraq that included, but was not limited to, not building a pipeline for which it received full payment, not serving food to the troops for which it was paid and not furnishing potable water to the troops for which it was paid.
KBR’s success at getting contracts notwithstanding its incompetence is seen in the contract it was awarded in January 2009 for $35.4 million to construct a power plant and electrical distribution center at the Camp Adder convoy support center in Iraq. Its dishonesty is demonstrated by the fact that less than three weeks after being awarded that contract it pleaded guilty to charges under the Foreign Corrupt Practices Act for being part of a four-company joint venture that used bribes in order to get engineering, procurement and construction contracts in Nigeria to build liquefied natural gas facilities in that country. The contracts were worth more than $6 billion, a sum that makes the Iraq contracts seem like small potatoes. The fine it paid for its criminal activity in Nigeria was $402 million or two-thirds of the money it received for the above-described work it didn’t do in Iraq. (In addition, it, and its former parent, Dick Cheney’s Halliburton Company, jointly agreed to disgorge $177 million in profits arising from their criminal activities. When that amount is added to the fine, the U.S. government was almost made whole for the money paid the company for its non-work in Iraq.)
Here is why the company and Cheryl will both remember August 7, 2009. On January 2, 2008, Ryan was electrocuted when he attempted to take a shower in a shower in a barracks that had been wired by KBR. At first his death was described by the military as an accident. The army explained to Cheryl that her son had an electrical appliance with him in the shower that caused his electrocution. That, as so much else associated with the Iraq war, was a lie. He was electrocuted because a water pump in the building was not properly grounded and when the shower was turned on Sgt. Maseth was electrocuted. In January 2009, it was reported by the Associated Press that an army investigator had called the death a “negligent homicide” that occurred because two KBR supervisors had failed to ensure that “qualified electricians and plumbers” were employed in construction of the building. The army investigator’s conclusions have been rebutted by the Defense Department using a unique, if not overly persuasive legal theory.
The Associated Press reported that the Defense Department said there “was insufficient evidence to prove or disprove” that anyone was criminally responsible for Ryan Maseth’s death. It didn’t say that KBR wasn’t negligent. It said that both KBR and the government were negligent in exercising their respective duties of care to Ryan and none of the breaches of duty, by itself, was the “proximate cause” of Ryan’s death. They also concluded that Ryan’s death was an accident. Both conclusions are extraordinary and the conclusion as to “proximate cause” should give heart to those contemplating doing wrong.
According to the Defense Department legal theory, an act of criminal wrongdoing entails no criminal consequences if there is a superior who should have detected the subordinate’s wrongdoing and taken steps to right it. That is because if one of the parties had done what he or she was supposed to do, the injury would not have occurred. Applying this theory, if a drunk worker were to get into an employer’s vehicle with the knowledge of the employer and have an accident, neither the driver nor the superior would be criminally responsible for the consequences of the conduct since each of them bears some responsibility and neither was the “proximate cause” of the accident.
KBR’s website says that: “When you become part of the KBR team, your opportunities are endless. . . .” They got that right. It’s just too bad the endless opportunities are malfeasance, incompetence, and corruption.