SCOTUS Lets Wounded Soldier Sue Military Contractor

A long-running fight over who can be blamed for a deadly insider attack on a US base in Afghanistan will go forward in court, the Supreme Court ruled Wednesday. In a 6–3 decision written by Justice Clarence Thomas, the court said Army Specialist Winston Hencely can continue his lawsuit against defense contractor Fluor Corporation and a subcontractor, CNN reports. Hencely was 20 when he confronted an Afghan worker who detonated a suicide bomb at Bagram Airfield in 2016, killing five soldiers and civilians and injuring more than a dozen others. Hencely lost the use of his left arm, hand, and part of his face and now lives with chronic pain and cognitive and memory problems, his lawyers say

Hencely argues Fluor failed to properly vet and supervise the bomber, identified as Afghan national Ahmad Nayeb, who worked in a vehicle maintenance yard. "The government required Fluor to hire Afghan employees and to provide logistics for Bagram Airfield," Thomas wrote. "But, it did not, Hencely contends, require Fluor to leave Nayeb unsupervised, allow him to walk alone for an hour after his shift, or permit him to obtain unauthorized tools with which he could build a bomb."

• The Army later concluded Hencely's actions "likely prevented a far greater tragedy," Thomas noted. Hencely and others confronted the bomber as he moved toward a crowd of hundreds of US military personnel gathered for a Veterans Day 5K race, the New York Times reports.

• Lower courts had thrown out the case, citing a 1988 Supreme Court ruling that shields military contractors from some state-law injury claims when they are following government-approved designs or instructions, CNN reports. Fluor, backed by the Trump administration, said that precedent should end the lawsuit, arguing the Army approved Nayeb's employment and kept any security concerns to itself.
• Hencely's team countered that the earlier case only protects contractors that do exactly what the government directs, and that the Army itself found Fluor had violated its duties.
• The decision featured what the Times calls an "unusual lineup," with the court's three liberal justices siding with Thomas and three conservative justices dissenting. In dissent, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, warned that allowing such claims invites state courts to second-guess military decisions in active war zones, something Alito said the Constitution's grant of war powers to the federal government does not permit.