Monday, September 26, 2011
A sharply divided 3-judge panel of the Fourth Circuit ruled last week in a pair of cases that a group of Iraqi citizens could not sue U.S. military contractors in tort for torture in Abu Ghraib prison and other locations throughout Iraq.
The court ruled in Al Shimari v. CACI Int'l and Al Quraishi v. L-3 Services, Inc. that federal interests preempted the plaintiffs' claims and dismissed the cases. But there was no preempting federal statute; instead the court relied on federal "interests" in interrogating detainees on a battlefield. Judge Niemeyer explained in an opinion joined by Judge Shedd:
[W]e too conclude that this case implicates important and uniquely federal interests. The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations. In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison. Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions. That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case. Moreover, such interference with uniquely federal interests would be aggravated by the prison's location within the war zone. Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.
. . .
In addition to the specific adverse impacts on the uniquely federal interests of interrogating detainees in foreign battlefields, a broader and perhaps more significant conflict with federal interests would arise from allowing tort law generally to apply to foreign battlefields.
Al Shimari at 8-10. In ruling the plaintiffs' claims preempted, the court followed the lead of the D.C. Circuit in Saleh v. Titan Corp., a 2009 case holding that where a civilian contractor is integrated into combat activities over which the military maintains authority, tort claims against the contractor are preempted.
Judge Neimeyer wrote separately to say that he would have dismissed the case under the political question doctrine and derivative absolute immunity, too.
Judge King wrote a lengthy dissent. Judge King said that the court lacked jurisdiction over this interlocutory appeal, a position he explains in his dissenting opinion in Al Quraishi, and that, if the court had jurisdiction, preemption didn't apply to bar the plaintiffs' claims.
In Al Quraishi, a case with similar facts, the divided panel (Judge King, dissenting) ruled that the court had jurisdiction over the contractor's interlocutory appeal of the district court's denial of its motion to dismiss.