War Zone, Meet Courtroom: The Supreme Court Declines to Immunize Contractors

The courthouse still smells like toner and consequences. And on April 22, 2026, the Supreme Court delivered a small, unfashionable message in a big, emotional setting: war does not automatically erase ordinary accountability for private actors.

What happened: Hencely v. Fluor goes back to court

In a 6-3 decision, the Court ruled that Army veteran Winston Tyler Hencely may pursue state-law tort claims against contractor Fluor Corporation tied to a 2016 suicide bombing at Bagram Airfield in Afghanistan. Justice Clarence Thomas wrote the majority opinion. Justice Samuel Alito dissented, joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

The underlying facts are brutal. The Court record describes a Taliban operative, Ahmad Nayeb, working for Fluor on the base under the military’s “Afghan First” initiative, which required contractors to hire Afghans. During a Veterans Day 5K event in 2016, Nayeb detonated an explosive vest after Hencely confronted him, killing five people and wounding seventeen. Hencely suffered severe brain injuries and is permanently disabled.

Hencely sued under South Carolina law on negligence theories including negligent supervision and negligent retention. The Fourth Circuit had dismissed the case under a broad idea: when contractors operate under military command in wartime, state-law claims arising out of “combatant activities” are preempted. The Supreme Court rejected that sweeping rule and sent the case back down.

Plain English: the Court refused to invent a new immunity

• Preemption needs a real hook. State law yields when it conflicts with the Constitution or valid federal law. The majority said the Fourth Circuit’s blanket rule lacked grounding in text, statutes, or precedent.
• FTCA immunity is not a party favor. Fluor pointed to the Federal Tort Claims Act “combatant activities” exception (which limits suits against the federal government). The Court said that exception does not automatically extend to contractors.
• Existing contractor shields still exist, but they have boundaries. The Court discussed Boyle (when state law significantly conflicts with a federal interest and the government directed the challenged conduct) and Yearsley (contractors acting within validly conferred federal authority). The majority emphasized that the shield does not fit when the contractor allegedly acted outside authority or contrary to military instructions.

The tradeoff: war language versus courthouse access

The dissent warned that litigation can invite second-guessing of security arrangements on an active base in a war zone. That is not a frivolous concern. But the Orwell check is whether “combatant activities” becomes a magic phrase that turns negligence into inevitability and locks the courthouse door by default.

The Paine test is simpler: does the rule expand liberty or concentrate power? A blanket preemption doctrine would concentrate power where oversight is already thin: contracting chains, midnight paperwork, and the kind of “operational necessity” that never meets cross-examination. The Court did not canonize Hencely’s claims. It just said he can try to prove them.

Facts first, defenses second, immunity last, and only when earned. If war can erase accountability for private actors, what else will we let it erase next?