Stop Picking Up the Tab : Legal indemnification of defense contractors is no longer justified

Last week it was announced that Rockwell International and the Justice Department had agreed on a plea bargain in the department’s suit against the corporation over its work at the Rocky Flats nuclear weapons plant. Rockwell would pay $18.5 million in fines and plead guilty to 10 charges of illegal conduct. U.S. District Judge Sherman Finesilver, however, has postponed until June his acceptance of this agreement. Last week, we commended his caution, for what is a bargain for the parties to this suit may not be a bargain for American taxpayers.

Rep. David E. Skaggs (D-Colo.) has expressed particular concern about whether the deal, whose full terms are not yet known, stipulates that the court record be sealed and that the Department of Energy pay Rockwell’s legal bills, which in a case of this magnitude may easily exceed the amount of the fine.

Rockwell claims that it is settling to avoid the cost of lengthy litigation, but the shoe is really on the other foot. The Justice Department fights Rockwell with salaried public lawyers. Rockwell fights back with top-dollar private legal talent--and passes the cost to the DOE. A routine practice, but it’s easy to see which side is likely to wear the other out first.

The DOE’s policy of holding its contractors harmless for environmental or other damage caused in the course of weapons manufacture was originally undertaken for reasons of national security: We needed those bombs to defend ourselves. By now, however, the risk to the U.S. environment and citizenry from the plants themselves equals the risk of foreign attack. It thus makes as much sense for the government to indemnify citizen intervenors in a weapons-plant dispute as it does for it to indemnify contractors. Defenders of the environment, after all, can as easily be frightened off by the threat of punitive legal costs as defenders against a foreign foe.

This nation needs safety at home as well as defense. The only evenhanded policy is for the government to pay only its own legal costs. All private parties, including government contractors, should pay their own legal bills.