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Oversight Abuse:
When Trial Lawyers Drive Congressional Hearings

By Firgyd Botham

At a time when Congress, the press, and the global stability industry are clamoring for more accountability in government contracting, public confidence in congressional authority may be diminishing.

In some high-profile cases concerning the war in Iraq, prominent politicians have attacked contractors with such partisan vigor that the congressional investigative process has become less a tool of sound governance and more of a bludgeon against political opponents.

This is nothing new, of course. But in today’s polarized political environment on issues of war and peace, the extreme partisanship isn’t helping lawmakers or the public distinguish between truth and falsehood.

Just as the nation recovers from the congressional influence-peddling scandals that cost the Republicans control of the House, the new Democratic majority is improperly using the congressional investigative process to aid litigation against a company whose diplomatic security services are crucial to the war effort in Iraq.

What’s more, the trial lawyer industry is one of the largest contributors to Democratic party organizations and incumbents. California trial lawyer Daniel Callahan is waging an eight-figure lawsuit against Blackwater Worldwide, alleging negligence in the deaths of four security contractors who were ambushed, murdered and mutilated in Fallujah by Iraqi insurgents in 2004. The issue at hand is not so much about one company as it is about congressional abuse of authority and power.

Misuse of power in Congress is no surprise; it dates back to the earliest years of this country. And it isn’t unique to one party, as the Republican scandal proved last year. Corruption surrounding disgraced lobbyist Jack Abramoff, at least one crooked congressman, and sleazy officials brought the GOP a well-earned public rebuke. But the Democrats, who vowed to clean up Congress, appear not to have learned a lesson from their opponents. Even if the latest antics are not illegal, they smack of conflicts of interests and undermine public confidence in Capitol Hill’s ability to protect the national interest.

Answering a Trial Lawyer’s Partisan Request

Callahan, a prominent trial lawyer of Callahan & Blaine in Santa Ana, Calif., wrote to incoming House Speaker Nancy Pelosi a month after the November, 2006 election that ejected the Republicans and brought the Democrats back to power. He told Pelosi that his firm represented the families of four Blackwater security contractors who had been “beaten, burned, killed, dragged through the streets of Fallujah, and strung up over a bridge for all the world to see” in 2004.

US Speaker of the House of Representatives Rep. Nancy Pelosi (D-Calif.) Photo: Paul J. Richards/AFP/Getty Images

The trial lawyer, who says he has won $1.1 billion in verdicts and settlements in the past five years, accused Blackwater of “profiteering.” He outlined a starkly partisan case for why Congress should probe Blackwater. He cited earlier “investigations” led by Senator Byron L. Dorgan (D-N.D.), who is the chair of the Senate Democratic Policy Committee, and by Congressman Henry Waxman (D-Calif.) in the House.

Fiscally minded citizens no doubt would prefer to see more, not fewer, objective congressional investigation of allegations of waste, fraud, and abuse. But the circumstances surrounding the Waxman hearings of February and October 2007 appear excessively partisan, designed more to discredit and undermine the war effort in Iraq, the president, and his party than to establish real facts and solve real problems.

Congress had already probed allegations of “war profiteering” but made little traction. “Although these congressional investigations into war profiteering by Blackwater seemed to be heading in the right direction, it appears that the prior position of the [D]emocrats in Congress led to these private security companies being evasive and recalcitrant toward the committees conducting the investigations,” Callahan said in his letter to Pelosi, giving a former Blackwater official’s testimony as a supposed example.

To the trial lawyer, Blackwater was only out “to make a buck.” Callahan alleged fraud and the death of the four Blackwater men in Fallujah as motivated by what he called “corporate greed.” He repeated allegations in the lawsuit he filed in North Carolina with David Kirby, the ex-partner of former Senator John Edwards (D-N.C.).

Callahan laid all blame squarely on Blackwater and not on the Islamic insurgents who led the security men into an ambush where at least two gunmen waited with video cameras to record the murder and desecration of the men (see sidebar). “Even Blackwater’s most heavily armed vehicle at the time wouldn’t have saved those four guys,” says a U.S. source with intimate knowledge of the case.

“This particular lawsuit against Blackwater is the first of its kind concerning the lack of accountability for private security contractors operating in Iraq,” the trial lawyer told Pelosi. While the case is already in the judicial system, he said, “as American citizens, we hereby petition to you to initiate, support, and continue the congressional investigations into war profiteering and specifically Blackwater’s conduct. Now that there has been a shift in power in Congress, we are hopeful that your investigation, as well as the investigations by Senator Dorgan and Congressman Waxman, will be taken seriously by these extremely Republican companies, such as Blackwater, who have been uncooperative to date, and that these investigations will be fruitful and meaningful,” Callahan said. “To the extent that we can provide any assistance to you or to these congressional committees, we will do so to the extent permitted by law.”

Callahan copied the letter to Pelosi’s district office in California, Waxman’s offices in Washington and Los Angeles, Senator Dorgan, Senate Democratic Leader Harry Reid (D-Nev.), and Congressman Chris Van Hollen (D-Md.), Chairman of the Democratic Congressional Campaign Committee.

Waxman “Investigation” Tracks Trial Lawyer Script

One of Waxman’s first acts as Chairman of the Committee on Oversight and Government Reform in this Congress was to hold the Blackwater hearing that the trial lawyer had requested—calling Callahan’s clients as witnesses. That hearing, in February 2007, was filled with the emotion that one would expect from family members whose loved ones had been so brutally slain. But, despite the presence of other witnesses, the hearing was more of a staged anti-Blackwater spectacle than a real inquiry.

Waxman had Callahan’s letter published as a public document in the printed transcript of his February 2007 hearing. A facsimile of the letter also appears on the Web site of the Wall Street Journal.

The issue got no real political or policy mileage until the September 16 incident at Nisoor Square in Baghdad, in which 17 Iraqis reportedly died in a shootout between unidentified gunmen and Blackwater diplomatic security guards.

Waxman and Callahan took maximum advantage of the situation—benefiting all the more because the State Department, which had issued Blackwater the security contract, forbade the company to give its side of the story to the public. The incident is under federal investigation.

Life-and-Death Repercussions of Blackwater Trashing Nobody with credibility has questioned the professionalism of Blackwater’s famed diplomatic security personnel, who have performed nearly 20,000 missions in Iraq without losing a single person under their protection. more >>

A reading of Waxman’s staff report and the Callahan lawsuit shows a remarkable degree of congruence. Congressional staffers tell Serviam that Waxman’s aides simply recycled the lawsuit as a “congressional report”—an allegation that a side-by-side comparison of both documents tends to support.

David Marin, chief of staff of the minority Republicans on the Waxman panel, denounced the report as a sham that was based on the trial lawyers’ litigation and therefore not a real report. Waxman called hearings, ultimately held on October 2, with his committee staff releasing damaging information in the days leading up to the event. Blackwater CEO Erik Prince testified before the panel for three hours (see “Accountability,” November-December 2007). Waxman publicly recognized Callahan and his plaintiff clients at the hearing.

Columnist Robert Novak wrote in the Washington Post on October 8 that Callahan told Blackwater legal counsel Joseph Schmitz that he could “bury” the attack campaign in exchange for a $20 million cash settlement. “While the trial lawyers wanted money, Democrats wanted more bad publicity for Blackwater—and the Bush administration,” said Novak. “Questioning by Democrats seemingly came straight from Callahan’s legal briefs.”

That’s no way for Congress to redeem itself as a credible check and balance toward the executive branch. Our nation’s warfighters, diplomats, private security providers, and citizens in general deserve a lot better.

Firgyd Botham is a Washington, D.C.-based observer of congressional affairs.

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From the January/February 2008 issue of Serviam.