If hell is war, then it looks like the smoldering pits in Iraq and Afghanistan.
And more than 800 American service members are suing a company that dumped tires, batteries, medical waste and other materials into burn pits there and released toxins into the air. The survivors allege the smoke caused stomach illnesses, neurological problems, cancers and other health issues; twelve died.
A trial judge dismissed their cases last year, but their lawyers told the U.S. Fourth Circuit Court of Appeals that the war is not over. The question, in some quarters, is whether they have a chance at all.
'Quintessential Military Decision'
The New York Times told the story, which started in 2008. Dozens of lawsuits by hundreds of veterans nationwide were consolidated in one federal court.
The plaintiffs sued military contractor KBR, Inc., alleging negligence for exposing them to toxic emissions. But the trial judge threw out their case, concluding that the contractor acted on behalf of the government in the decision to burn the waste.
Judge Roger Titus said it "was a quintessential military decision made by the military, not KBR, and was a decision driven by the exigencies of war." He would not second-guess it.
Before the Fourth Circuit, the combatants met again. The plaintiffs' attorney said the contractor violated military orders.
'All Over the Map'
Susan Burke argued that the military contracted KBR to provide support services. But, she said, the company violated the contract terms on handling waste disposal.
She said KBR used burn pits at 119 locations when it had permission to use only 18. The company "negligently burned substances they were directly told not to," she said.
For the veterans, it is a last-ditch appeal. The Veterans Administration has denied many of their claims, concluding there is not enough evidence to link burn pits to their illnesses.
According to law professor and blogger Stephen Vladeck, judges are "all over the map" on government immunity for contractors. He told the Times it is an "incoherent" area in the law.