The Defense Base Act was born from an old problem: when the United States sends civilians overseas to build and support its military infrastructure, what happens when those civilians are injured or killed?
Congress confronted that question in 1941, months before Pearl Harbor. The United States was acquiring and developing military, naval, and air bases overseas. Private contractors (employers) supplied much of the labor. But the employees performing that work could fall outside any practical American workers’ compensation system.
The contractors faced a related problem. Without a uniform compensation system, they could face uncertain liability under foreign law, lawsuits in local courts, and difficulty obtaining compensation insurance at predictable rates.
So, Congress responded by extending the Longshore and Harbor Workers’ Compensation Act overseas through what became the Defense Base Act.
A Compensation System for America’s Overseas Workforce
Congress did not leave the purpose of the DBA to inference.
The Senate Committee on Military Affairs explained that the legislation was designed:
. . . to provide substantially the same relief for injuries or death of employees at bases leased by the United States from Great Britain or any other country as existing law affords similar employees in the United States . . . .
Further, the law would help contractors obtain workers’ compensation insurance at reasonable rates.
See S. Rep. No. 77-540, at 1 (1941).
The House Judiciary Committee repeated essentially the same formulation. H.R. Rep. No. 77-1070, at 2 (1941).
The principle was straightforward. If the United States relied on civilian employees to perform work necessary to its overseas military mission, those employees should not lose basic compensation protection simply because the work occurred outside the United States.
But the legislative history reveals something else. Congress was not designing a compensation system solely for Americans working abroad. Instead, Congress designed the DBA to cover foreign nationals, too.
Congress Expected an International Workforce
Congress understood from the beginning that overseas military contracting would involve workers of different nationalities. When Congress described employees already working on construction projects at leased bases overseas, the House Judiciary Committee observed:
Some of these employees are citizens of the United States, some are natives of the location of the particular base involved, and probably some are citizens of other countries.
H.R. Rep. No. 77-1070, at 3 (1941).
Accordingly, foreign-national coverage was not an accidental consequence of the 21st century’s wars in Iraq and Afghanistan. Congress knew in 1941 that the contractors supporting American military bases would employ American citizens, local nationals, and third country nationals.
The DBA legislation expressly accounted for “the lower wage rates of native workers employed in connection with the development, maintenance, and operation of the bases.” H.R. Rep. No. 77-1070, at 2. Further, the House amendments also specifically addressed compensation payable to aliens and nonnationals living outside the United States and Canada.
Therefore, Congress confronted from the outset many of the characteristics that would later define the Defense Base Act workforce: foreign employment, foreign wages, multinational labor, and work performed far from the ordinary institutions of American workers’ compensation.
Congress Also Wanted to Protect Employers from Local Litigation
The Defense Base Act was not designed solely to provide benefits. Congress also wanted a predictable system of liability for the companies performing military work overseas.
The War Department told Congress that existing conditions presented several difficulties. Those included “questions of jurisdiction” and questions concerning the “existence of rights of action for damages arising from injuries sustained by employees, and remedies therefor.” H.R. Rep. No. 77-1070, at 4 (1941).
The Department also identified contractors’ difficulty obtaining workers’ compensation insurance and insurers’ difficulty establishing reasonable and uniform rates.
The concern about foreign litigation was particularly concrete.
During the House Judiciary Committee proceedings, Representative Francis Walter asked Commander Harold Biesemeier of the Navy Judge Advocate General’s office how the absence of federal compensation legislation could interfere with construction of the overseas bases.
Biesemeier explained:
. . . if we had a number of workmen down there who were suing in the local courts and getting hold of the contractor and getting an injunction against him, or levying a judgment on the materials he is bringing in there to construct the base, it would necessarily interfere with the defense of the bases . . . .
Indeed, those bases could not be constructed without those materials.
H.R. Rep. No. 77-1070, at 7 (1941).
That testimony reveals an important part of the original DBA bargain.
Congress wanted injured employees to have a defined compensation remedy. At the same time, it wanted contractors supporting the American military to operate under a predictable legal system rather than face potentially disruptive tort litigation in numerous foreign jurisdictions.
That arrangement reflected the traditional workers’ compensation compromise. Employees received a statutory remedy without having to prove negligence. Employers received protection from ordinary tort liability.
Under the Defense Base Act, however, that bargain served an additional national purpose: keeping overseas military construction and operations functioning.
Workers’ Compensation as Part of the Military Mission
The House Judiciary Committee ultimately tied the compensation system directly to American defense policy.
Its conclusion was unusually explicit:
The Committee on the Judiciary, after careful consideration of the matter, has concluded that in order to effectuate the policy of building, maintaining, and operating military, air, and naval bases acquired by the United States for the protection of this country, that it is necessary to have a compensation law at such places.
H.R. Rep. No. 77-1070, at 7 (1941).
That statement may provide the clearest description of the Defense Base Act’s original purpose.
Congress did not view compensation for overseas workers as something separate from the American military mission. Congress considered a compensation system necessary to carrying out that mission.
The United States needed overseas bases. Those bases required private contractors. The contractors required workers. The workers needed protection when they were injured. And the contractors needed a predictable compensation system that would prevent workplace injuries from disrupting military construction through foreign litigation.
Therefore, workers’ compensation became part of the legal infrastructure supporting American military power overseas. Moreover, Congress expressly extended workers compensation to foreign nationals–which was (and is) the right thing to do.
From World War II to the Modern Contractor Workforce
For decades, the Defense Base Act remained relatively obscure. Contractors continued to support American military and government operations throughout the Cold War, but the number of claims remained modest compared with what would come later.
The underlying model, however, was already changing.
As the American military reduced its uniformed force after the Cold War while maintaining extensive commitments overseas, contractors assumed more functions. They constructed and maintained facilities, operated dining halls, transported supplies, repaired equipment, provided security, and supported deployed forces.
The Balkans became an important transition point. Contractor operations in Bosnia, Kosovo, Macedonia, and elsewhere demonstrated that civilian companies could provide large portions of the infrastructure needed to sustain an American military deployment.
Those companies did not rely only on American workers. They increasingly employed local nationals and third-country nationals.
The structure Congress had anticipated in 1941 was becoming much larger and more complicated.
A worker might be recruited in one country, employed by a company headquartered in another, work for a subcontractor several tiers below a major American defense contractor, and perform services at a military installation in yet another country. The Defense Base Act follows the worker’s employment.
Consequently, by September 2001, the essential pieces were already in place: an American military increasingly comfortable outsourcing support functions, an international contractor workforce, and a federal compensation statute expressly designed to travel with American military activity overseas.
What changed after September 11 was not the underlying concept. It was the scale.
The wars in Afghanistan and Iraq would turn military contracting into an enormous international labor system. Hundreds of thousands of civilian workers would eventually support American operations.
And the compensation statute Congress created in 1941 would be asked to protect a workforce vastly larger, more international, and more medically and administratively complicated than anything its original authors had experienced.
This is Part 1 of a series addressing changes to the DBA practice area since its inception.
