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Sunday, June 23, 2024 | Back issues
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Detainees Lose Bid to Sue Abu Ghraib Contractors

(CN) - Defense contractors will not face claims that they conspired with the government to cover up their abuse of Iraqi prisoners at Abu Ghraib, the 4th Circuit ruled.

Federal law pre-empts the lawsuits against CACI International, which conducted interrogations at Abu Ghraib, and L-3 Communications Holdings, which provided translators to the U.S. military for questioning detainees throughout Iraq, according to decisions that call for the dismissal of two separate lawsuits.

"Where a civilian contractor is integrated into combat activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities is preempted," Judge Paul Niemeyer wrote for the majority in both cases.

Along with Niemeyer, Judges King and Shedd made up the three-member panel that heard the appeals in Richmond, Va.

While Al-Shimari v. CACI International and Al Quraishi v. L-3 Services were argued separately, the court used the reasoning in Al-Shimari to dismiss both cases because the circumstances in each case were essentially the same.

The Federal Tort Claims Act provides for exceptions to tort liabilities imposed by state law where a uniquely federal interest exists - like national defense - that make it impossible to meet the mandates of both the federal government and state law.

The Supreme Court turned to these exceptions in its Boyle v. United Technologies decision, which held that contractors building military hardware were immune to state tort claims because the design and procurement of military hardware were "unique federal interests" that could not by fulfilled if contractors were scared off by potentially ruinous tort liability claims.

In an era when the military subcontracts everything from cooking to intelligence gathering, Judge Niemeyer cast interrogation and translation contractors as the soft equivalent of traditional hardware providers.

"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," Niemeyer wrote. "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."

Whereas Boyle relied on the concept of the discrete function of the federal government in procuring military hardware, Niemeyer went further to embrace a specific pre-emption for actions taken on the battle field.

The court also relied on a D.C. Circuit's decision involving the same companies, Saleh v. Titan. "The very purposes of tort law are in conflict with the pursuit of warfare," Judge Laurence Silberman wrote for the majority in that case. "Thus, the instant case presents us with a more general conflict preemption, to coin a term, 'battle-field preemption': the federal government occupies the field when it comes to warfare, and its interest in combat is always 'precisely contrary' to the imposition of a non-federal tort duty."

In one of the cases at hand this time around, Judge Robert King blasted the majority for giving "sweeping breadth" to pre-emption standards based on misinterpretation the FTCA, which he said exempts only the actions of the federal government from state claims for actions on the battlefield.

"The majority erroneously strains to discover a new form of preemption unjustified by Supreme Court precedent," he wrote in dissent to the Al-Shimari opinion.

King also rejected the comparison of these contractors, who are hired to perform agency functions without direct supervision, with manufacturing hardware that becomes government property when it is operated by employees.

"Ultimately, the government rather than the contractor must be in charge of decision making in order for the contractor to be shielded from liability," King wrote, adding that "the government's precise control over its contractor, which is so integral to Boyle's reasoning, is absent."

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