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Yesterday, the Fourth Circuit announced decisions in Al Shimari v. CACI International and Al-Quraishi v. L-3 Services, Inc. Both cases involved tort suits brought by Iraqi civilians against U.S. military contractors alleged to have engaged in detention and interrogation abuses in Iraq in cooperation with U.S. military forces. The district courts in both cases denied the defendants' motions for summary judgment. The Fourth Circuit reversed and remanded both cases for dismissal on the ground that the tort suits were preempted by the federal interests at stake. The court developed its preemption analysis in Al Shimari (discussed in the rest of this post) and referenced it in Al-Quraishi. (Al-Quraishi principally concerned a debate between the majority and dissent about whether the court had jurisdiction to consider the interlocutory appeal. The majority affirmed jurisdiction because of the important interest in "insulat[ing] the battlefield from the unjustified exertion of power by the courts . . . and to free military operatives from the fear of possible litigation and the hesitancy that such fear engenders.") Writing for a 2-1 majority in Al Shimari, Judge Paul Niemeyer relied primarily on the Supreme Court's preemption analysis in Boyle v. United Technologies Corp. and the D.C. Circuit's application of Boyle in Saleh v. Titan Corp., another case involving a tort suit against military contractors for detention and interrogation abuses. The court adopted Saleh’s holding that "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" because of the "uniquely federal interests" at stake. It did not ground its preemption analysis in a federal statute, but rather recognized a kind of field preemption in virtue of the ongoing military conflict in Iraq. As the court explained, quoting from Saleh, "The very purposes of tort law are in conflict with the pursuit of warfare. 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." The court also noted "a broader and perhaps more significant conflict with federal interests [that] would arise from allowing tort law generally to apply to foreign battlefields . . . . [T]his interest is implicated even when the suit is brought indirectly -- against a civilian contractor -- rather than directly against the United States itself." Judge Niemeyer also wrote a separate concurrence to argue that the case should be dismissed under the political question and derivative absolute immunity doctrines. Judge Robert King dissented, mainly on the ground that Boyle did not require dismissal. Noting that the Boyle Court required an actual conflict between the federal interest and the state law, he argued that "[n]o federal interest implicates the torture and abuse of detainees." Given Congress and the Executive's commitment to end torture and unlawful detention and interrogation practices, he maintained, "it is quite plausible that the government would view private tort actions against the perpetrators of such abuses as advancing the federal interest in effective military activities." The dissent also argued that Boyle did not apply because the contractors were not under the "rigid control that the government exerts over contractors in procuring military equipment," since the contractors in the cases were used "for general services only." The Al Shimari lower court opinion is available here, and the Al-Quraishi lower court opinion is available here. Briefs for the Al Shimari opinion are listed here, and for Al-Quraishi are listed here.
Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School, a senior editor at Lawfare, and a term member of the Council on Foreign Relations. Previously, he served as an Attorney Advisor with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland.
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