The Biden White House and Merrick Garland’s Justice Department are attempting to throw a US military contractor under the bus, and no one is exactly sure why. The issue arises out of the crash of Transafrik Flight 662 on short final into Kabul Afghanistan International Airport (KAIA) on October 12, 2010.
Transafrik is an airline based out of Uganda. Flight 662 has a Filipino crew. The aircraft had some, what we would call in the infantry, “major f***ing issues.”
However, the plane had problems with some of its avionics equipment, according to an email that another Transafrik pilot, Michael Terrell, had sent three days earlier to others at Transafrik, including Captain Bulos. Terrell described the terrain avoidance warning system as inoperable. Normally, the terrain avoidance warning system would display a topographic map and indicate the plane’s position relative to the surrounding terrain, with the map showing red when the plane was at a dangerous relative elevation. This plane’s terrain avoidance warning system did not present such a display. The plane also lacked or had an inoperable ground proximity warning system, which, when working, sounds an alarm to alert the cockpit that the plane is in dangerous proximity to an obstacle. Terrell’s email also reported that the traffic collision avoidance system, designed to help the plane avoid collisions with other aircraft, worked only sporadically. There is no evidence that Transafrik resolved any of these issues in the days following Terrell’s email; it appears to have been the airline’s practice to keep a plane in operation until new parts could be installed. There is also no evidence that Midwest personnel, including those working in the control tower on the evening in question, were aware of any of these issues with the plane’s avionics.
Some of this may not have mattered on a pleasant June day under ideal conditions, but when attempting to land at night on an airfield in a mountainous region, suboptimal outcomes are not unexpected.
Captain Bulos chose to operate Flight 662 according to VFR. Although the flight left Bagram around 7:20 p.m. local time—after sunset—Captain Bulos was permitted to use VFR. Flight 662 had to arrive in Kabul at night because Boeing 747s, which were used to transport Afghans to Saudi Arabia for the Hajj, had been parked on Transafrik’s ramp at the airport earlier that evening. A former Transafrik pilot explained that “the airport authority would not let us land until all the Hajj birds were gone and we had space.”
During the landing, the pilot flew into a mountain and killed everyone on board. The estates of the deceased sued Midwest Air Traffic Control Service (MATCS), a Department of Defense contractor hired to manage operations at KAIA.
The case started in a district court in the Western District of New York. The judge granted summary judgment for MATCS because it was a federal contractor operating under DOD control in a war zone. The plaintiffs appealed to the Second Circuit, which ruled that MATCS could be sued because the air traffic controller literally “failed to provide necessary instruction to keep a safe and proper separation between . . . Flight 662 and the surrounding terrain.” It also ruled that because no military officer was in the tower and no specific instructions had been issued to the controller on how to handle the final approach of Flight 662, the military did not have anything to do with the accident. And even though the airbase had been under Taliban attack in the past, it was not under attack at the time of the landing, so f*** that combat zone stuff.
A federal appeals court taking a hard left turn toward stupid is hardly unusual. Truth be told, I’d be willing to bet there was some bias against military contractors being used in a war zone at work as well. MATCS appealed the decision to the US Supreme Court. In May 2022, the Supreme Court asked the Justice Department for the government’s position on the case. The solicitor general didn’t get around to responding until April 2023. When it did, the response was a shocker.
After the petition by the controllers reached the Supreme Court, the Justices last May asked the Solicitor General to weigh in on the government’s behalf. That brief finally arrived this April, and the delay of almost a year is curious. What’s even more notable is that the Biden Administration is deserting the controllers, in a break with the Obama Administration’s view. The Solicitor General says federal immunity isn’t implicated, since managing air traffic over Kabul wasn’t “closely combat-related,” as opposed to handling the trash on “forward operating bases.”
In response, MATCS observes that the Second Circuit decision places it at odds with three other federal circuits and flies in the face of logic considering that KBR was granted immunity from burn pit injuries and other decisions involving Abu Ghraib, the “Nassour Square Massacre,” and other major cases involving alleged misconduct on the part of DOD contractors.
There are two possible explanations for this.
The first possibility is that it is personal score-settling. In the case where some alleged Iraqi terrorists were roughed up in Abu Ghraib prison, the DC Court of Appeals ruled DOD contractors could not be sued by people who had been trying to kill US troops…okay, I made that part up; they said “foreign nationals.” Justice Kavanaugh, then on the DC Circuit, was part of the majority decision. Merrick Garland was the lone dissent. The year-long delay in responding to a lawsuit with immense implications for US military operations overseas, and then the “let it rip” attitude when a response was made, seems like Garland was trying to vindicate his position and possibly stick his thumb in Kavanaugh’s eye—if the Solicitor General’s view on the case led to the Supreme Court upholding the Second Circuit.
On the other hand, Biden and his clique of anti-American advisors know how dependent the US military is on civilian contractors to pursue military operations of all types. A decision by the Supreme Court that hung MATCS out to dry would be a warning to all DOD contractors that working for DOD overseas placed their very existence in jeopardy. This would force a lot of contractors to turn down DOD contracts for the sake of survival. Of course, Joe could always find Chinese companies to do the job if it came to that, so long as 10 percent was held back for “the big guy.”
There is an old saying you should “never attribute to malice that which can be adequately explained by stupidity.” Ever since Joe Biden was selected to be president, that adage has been stood on its head. You can depend upon virtually any decision emanating from any part of the hot mess Joe Biden allegedly oversees to be calculated maliciousness, no matter how stupid it is.
The Solicitor General’s brief on this critical case has the potential to hamstring the ability of the US military to engage in combat or humanitarian operations overseas. Given his actions so far, this could be a feature, not a bug, of such a decision.