(CN) - Families of U.S. contractors kidnapped and beheaded in Iraq almost a decade ago lost their appeal challenging the government policies they say contributed to their relatives' deaths.
But their challenge raised the "more troubling and painful question" of how Washington should deal with families of hostages in the age of the self-proclaimed Islamic State, one of the judges wrote in a passionate concurring opinion.
Over the course of the case, government lawyers said Washington has "no policies" regarding hostage victims' families, this judge noted.
In a silver lining for the families, the decision allows them to seek their relatives' allegedly withheld back pay and insurance at the U.S. Court of Federal Claims.
The judges predicted, however, that this court would find the remaining claims "quite spare" on remand.
In 2006, men in Iraqi police uniforms kidnapped three workers of the now-defunct firm Crescent Security Group: Joshua Munns, John Young and John Coté.
William Palmer, an attorney for the families of those men, said in a lawsuit that U.S. policies and negligence contributed to the tragedies.
One of Crescent's own interpreters allegedly led the attackers, who claimed to be motivated by revenge for Coalition Provisional Authority Order Number 17.
Calling the order a "license to kill," Palmer said that the now-rescinded policy gave private contractors broad immunity from Iraqi laws.
The families also told the court that they tried to work with the State Department and the FBI to free the men, but that the kidnappers tortured and beheaded the men after many months of no action.
For years, their lawsuit stumbled at establishing standing because they are challenging policies unlikely to affect them in the future. A federal judge dismissed their initial complaint on these grounds in 2011.
To overcome this barrier, the families added a plaintiff: Gary Bjorlin, an ex-Marine and Crescent employee who claims to be currently seeking work in Iraq. The current iteration of their case names Secretary of State John Kerry as the lead defendant.
This maneuver failed to convince the 9th Circuit that they had the right to sue.
Since Bjorlin expressed "no concrete plans to return" to Iraq, his standing is questionable, Circuit Judge Raymond Fisher wrote.
"Even if he seeks a position in private security in Iraq, he may not obtain one," Fisher wrote. "His 'someday' hope to return to Iraq is not the sort of specific planning that the Supreme Court has held is required to demonstrate that a future injury is sufficiently imminent for a federal court to address it prospectively."
Judge Marsha Berzon joined the opinion.
While agreeing with his colleagues, Judge Steven Reinhardt added that the case raises a "more troubling and painful question" of how Washington deals with the families of hostages abducted by the likes of al-Qaida or ISIL.
"It is significant that the government has told this court that currently there are no policies preventing private individuals from making efforts to secure the release of relatives who are held captive abroad," Reinhardt wrote.
"Because the plaintiffs have no relatives currently in the Middle East, or currently in greater danger from terrorist groups than any of the rest of us, we again face only a hypothetical question - the kind that courts do not answer.
"For theses reasons, we do not consider the wisdom, let alone the existence or the legality, of any government policy regarding how to deal with any terrorist groups that may in the future hold American citizens captive," he added. "That is a question that, for now at least, is best left to the American people."
Palmer, the families' lawyer, did not immediately respond to a request for comment.
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