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Boston Globe
December 26, 2007 Firm being sued in pilot's death
By Ross Kerber, Globe Staff
Army officials were aware that the Raytheon-built Patriot air-defense system had difficulty distinguishing between friendly and enemy aircraft but deployed the missiles in the Iraq war after deciding the system was needed to protect troops, a Raytheon Co. executive stated in a recent legal filing.
The statement was filed in a lawsuit brought by the family of a Navy pilot who was killed by a Patriot missile while flying over Iraq in 2003. The declaration marks a rare acknowledgment of problems with a mainstay of the Army's air-defense arsenal and underscores what Raytheon says is a key issue in the case - whether a defense contractor can be sued over the way soldiers use its products in the heat of combat.
Traditionally, defense contractors have been shielded from many claims by the "political questions doctrine," which bars courts from second-guessing some decisions by troops or other government representatives. Raytheon has raised this doctrine in the case filed in federal court in Boston by the family of Navy pilot Nathan D. White, who allege that the company was negligent in the design of the system and that its weaknesses were well known prior to the accident.
At a Dec. 19 hearing, US District Court Judge Richard G. Stearns denied a motion by Raytheon to dismiss the case, saying it raised "fascinating issues" that the family deserved the chance to explore.
"I have no doubt there are political questions in this case," Stearns said from the bench, but whether they "overwhelm the claims" is a question that needs further review.
A Raytheon spokesman said it would be inappropriate to comment on the litigation, and referred questions to the Army. A spokesman for the Army, which is not being sued, also declined to discuss the case. The family has previously sent a letter to the company seeking a $20 million settlement, though no figure was given in the lawsuit.
Just how much confidence military officers should have in the Patriot missile has been an issue for years. Originally designed as a ground defense against aircraft, Patriot missiles and their launchers gained fame during the Gulf War of 1991 when they were pressed into service to defend against Iraqi Scud missiles.
However, later reviews forced the Army to scale back its claims Patriot had a near-perfect record shooting down incoming targets in that conflict, and led to heavy spending on upgrades. When Patriot missile batteries were deployed to protect troops in the 2003 invasion of Iraq, they destroyed nine incoming missiles but also were involved in three friendly-fire incidents that killed three allied airmen, including both fliers of a British Tornado jet.
In the other fatal incident, White, a lieutenant from Texas, was returning from a mission with a wingman when his F/A-18 was shot down by a Patriot missile near Karbala, Iraq, on April 2, 2003. Later military reviews put blame for the accident on weaknesses with the Patriot system itself, poor training, and poor communications. One problem was the frequent appearance on Patriot radar screens of "ghost tracks," or targets that didn't exist, a report found. The suit states that the malfunction that caused Patriot to misidentify friendly targets as enemies "occurred with alarming frequency and were well-known to Raytheon" prior to White's death.
The Army and Raytheon say they have made more improvements since then, but White's family has sought more details, such as what officials knew of the Patriot's weaknesses before the war.
Raytheon submitted the declaration by Raytheon executive Daniel Roy Kirby to bolster its argument that the Army knew of problems with the Patriot. From 2001 to 2005, Kirby was an Army officer at Fort Bliss, Texas, center of the services' air-defense operations. He is now a director at Raytheon's Integrated Defense Systems division in Tewksbury.
In his three-page statement, Kirby said, "As would be expected of any weapon system, the Army has identified, evaluated, and reported on numerous operational issues associated with the Patriot System. Prior to April 2, 2003, the Army was aware that there had been documented instances in which the Patriot System in training, test, and/or combat failed to perform to operational requirements, including specifically its misidentification of friendly vehicles as enemy targets.
"Despite this knowledge, the Army determined that the Patriot System is mission critical to US tactical air defense and decided to deploy the system to the battlefield, including during Operation Desert Storm and Operation Iraqi Freedom," Kirby stated.
In a related filing, Raytheon lists a number of questions it says are best left to military officers rather than courts to decide, such as whether it was right to deploy the system at all and whether crews were right to fire at White's plane when they believed they were under attack.
Raytheon also noted that on the day White was shot down the system was deployed in a novel "bounding over-watch" mode, in which one unit is set up to fire on incoming missiles when another unit moves forward. In theory, the configuration could have caused electro-magnetic interference with Patriot radars that contributed to the accident.
"It is impossible to pare through the case without encountering military decisions," said Raymond Biagini, an outside attorney for Raytheon, during the Dec. 19 court hearing.
Major Thomas McCuin, an Army spokesman, said Kirby's statement was a reference to a report previously made public that described a problem with Patriot's system for distinguishing between allies and enemies. "The bottom line for me is that no weapon system is perfect, but the Patriot is the best antiaircraft/antimissile system in the world and serves a critical role in our nation's defense," McCuin wrote in an e-mail.
Philip Coyle, the Pentagon's top testing official during the Clinton administration, said Kirby's statement in the case is "a much more concrete statement than anything I've seen before" about what the company or the Army knew about Patriot prior to the accident. Coyle has said in the past that previous war games also had pointed to Patriot's problems identifying targets.
But Coyle also noted that at the time of the invasion the Army would have believed President Bush's statements that Iraq possessed weapons of mass destruction, which could be carried by Scud missiles that Patriot missiles could defend against.
Even though Patriot was imperfect, Coyle said, "I bet the Army would say it was better than nothing."
December 26, 2007 Firm being sued in pilot's death
By Ross Kerber, Globe Staff
Army officials were aware that the Raytheon-built Patriot air-defense system had difficulty distinguishing between friendly and enemy aircraft but deployed the missiles in the Iraq war after deciding the system was needed to protect troops, a Raytheon Co. executive stated in a recent legal filing.
The statement was filed in a lawsuit brought by the family of a Navy pilot who was killed by a Patriot missile while flying over Iraq in 2003. The declaration marks a rare acknowledgment of problems with a mainstay of the Army's air-defense arsenal and underscores what Raytheon says is a key issue in the case - whether a defense contractor can be sued over the way soldiers use its products in the heat of combat.
Traditionally, defense contractors have been shielded from many claims by the "political questions doctrine," which bars courts from second-guessing some decisions by troops or other government representatives. Raytheon has raised this doctrine in the case filed in federal court in Boston by the family of Navy pilot Nathan D. White, who allege that the company was negligent in the design of the system and that its weaknesses were well known prior to the accident.
At a Dec. 19 hearing, US District Court Judge Richard G. Stearns denied a motion by Raytheon to dismiss the case, saying it raised "fascinating issues" that the family deserved the chance to explore.
"I have no doubt there are political questions in this case," Stearns said from the bench, but whether they "overwhelm the claims" is a question that needs further review.
A Raytheon spokesman said it would be inappropriate to comment on the litigation, and referred questions to the Army. A spokesman for the Army, which is not being sued, also declined to discuss the case. The family has previously sent a letter to the company seeking a $20 million settlement, though no figure was given in the lawsuit.
Just how much confidence military officers should have in the Patriot missile has been an issue for years. Originally designed as a ground defense against aircraft, Patriot missiles and their launchers gained fame during the Gulf War of 1991 when they were pressed into service to defend against Iraqi Scud missiles.
However, later reviews forced the Army to scale back its claims Patriot had a near-perfect record shooting down incoming targets in that conflict, and led to heavy spending on upgrades. When Patriot missile batteries were deployed to protect troops in the 2003 invasion of Iraq, they destroyed nine incoming missiles but also were involved in three friendly-fire incidents that killed three allied airmen, including both fliers of a British Tornado jet.
In the other fatal incident, White, a lieutenant from Texas, was returning from a mission with a wingman when his F/A-18 was shot down by a Patriot missile near Karbala, Iraq, on April 2, 2003. Later military reviews put blame for the accident on weaknesses with the Patriot system itself, poor training, and poor communications. One problem was the frequent appearance on Patriot radar screens of "ghost tracks," or targets that didn't exist, a report found. The suit states that the malfunction that caused Patriot to misidentify friendly targets as enemies "occurred with alarming frequency and were well-known to Raytheon" prior to White's death.
The Army and Raytheon say they have made more improvements since then, but White's family has sought more details, such as what officials knew of the Patriot's weaknesses before the war.
Raytheon submitted the declaration by Raytheon executive Daniel Roy Kirby to bolster its argument that the Army knew of problems with the Patriot. From 2001 to 2005, Kirby was an Army officer at Fort Bliss, Texas, center of the services' air-defense operations. He is now a director at Raytheon's Integrated Defense Systems division in Tewksbury.
In his three-page statement, Kirby said, "As would be expected of any weapon system, the Army has identified, evaluated, and reported on numerous operational issues associated with the Patriot System. Prior to April 2, 2003, the Army was aware that there had been documented instances in which the Patriot System in training, test, and/or combat failed to perform to operational requirements, including specifically its misidentification of friendly vehicles as enemy targets.
"Despite this knowledge, the Army determined that the Patriot System is mission critical to US tactical air defense and decided to deploy the system to the battlefield, including during Operation Desert Storm and Operation Iraqi Freedom," Kirby stated.
In a related filing, Raytheon lists a number of questions it says are best left to military officers rather than courts to decide, such as whether it was right to deploy the system at all and whether crews were right to fire at White's plane when they believed they were under attack.
Raytheon also noted that on the day White was shot down the system was deployed in a novel "bounding over-watch" mode, in which one unit is set up to fire on incoming missiles when another unit moves forward. In theory, the configuration could have caused electro-magnetic interference with Patriot radars that contributed to the accident.
"It is impossible to pare through the case without encountering military decisions," said Raymond Biagini, an outside attorney for Raytheon, during the Dec. 19 court hearing.
Major Thomas McCuin, an Army spokesman, said Kirby's statement was a reference to a report previously made public that described a problem with Patriot's system for distinguishing between allies and enemies. "The bottom line for me is that no weapon system is perfect, but the Patriot is the best antiaircraft/antimissile system in the world and serves a critical role in our nation's defense," McCuin wrote in an e-mail.
Philip Coyle, the Pentagon's top testing official during the Clinton administration, said Kirby's statement in the case is "a much more concrete statement than anything I've seen before" about what the company or the Army knew about Patriot prior to the accident. Coyle has said in the past that previous war games also had pointed to Patriot's problems identifying targets.
But Coyle also noted that at the time of the invasion the Army would have believed President Bush's statements that Iraq possessed weapons of mass destruction, which could be carried by Scud missiles that Patriot missiles could defend against.
Even though Patriot was imperfect, Coyle said, "I bet the Army would say it was better than nothing."
