(CN) – The full 4th Circuit revived claims that defense contractors conspired with the government to cover up their abuse of detainees at Abu Ghraib prison.
In an 11-3 en banc ruling, the Richmond, Va.-based federal appeals court found it lacked jurisdiction to review pretrial orders that refused to dismiss two cases: Al-Shimari v. CACI International and Al Quraishi v. L-3 Services.
Each case involves alleged detainee abuse by 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.
As the cases proceed, the contractors can still pursue immunity or pre-emption claims.
About seven months ago, a three-judge appellate panel tossed the lawsuits after finding that the federal judges presiding over each case had denied the immunity to which the contractors were entitled.
Under Supreme Court precedent set in Cohen v. Beneficial Industrial Loans, courts of appeals can review the nonfinal orders of U.S. District Courts when the issue would not be reviewable once the lower court reached a final decision.
The three-judge panel decided an appeal could not undo the effects of forcing contractors to prove their immunity beyond the facts presented by the plaintiffs’ case.
In his dissent at the time, Judge Robert King blasted the majority for taking “an impermissibly indulgent view of appellate jurisdiction.”
He argued that the each case was in the discovery phase of proceedings and immunity claims could develop further.
The 11-judge majority, now led by King, took up this view on May 14, finding that the contractors’ claims did not fall within the “small class” of cases that warrants intervention before final judgment, as provided by Cohen.
The 4th Circuit could not even reach the question of immunity because “the questions that will require proper answers in order to gauge the appellants’ entitlement to immunity have yet to be fully ascertained,” the decision states.
These questions include the extent to which the contractors were integrated with military forces, the scope of their contracts with the government and the type of immunity they might enjoy as a result, King explained.
The court rejected the October ruling’s conclusion that the facts presented by the detainees alone could demonstrate the contractors’ immunity.
“Although immunity confers upon those within its aegis the right not to stand trial, the appellants have yet to establish their entitlement to it,” King wrote.
The three dissenting judges each signed two opinions last week.
The opinion authored by Judge Harvie Wilkinson III attacks the very premise that tort law applies to actions taken on the battlefield.
“Tort suits place the oversight of military operations in an unelected judiciary, contract law in a politically accountable executive,” Wilkinson wrote. “And in the absence of some contrary expression on the part of the Article I legislative branch, the basic principles of Article II require that contractual, not tort, remedies apply.”
Judge Paul Niemeyer, who authored the majority opinion in October, slammed the majority last week for not recognizing “that the undisputed facts of the plaintiffs’ claims alone allow a court to rule on the defendants’ immunity claims as a matter of law.”
The decision forces military contractors to act “with the understanding that they are presumptively subject to civil tort law and must abide by state law duties of care in the middle of foreign war zone,” he said.
“It would appear that only the Supreme Court can now fix our wayward course.”