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First, this case presents substantial issues relating to federal preemption, separation-of-powers, and immunity that could not be addressed on appeal from final judgment. The plaintiffs' complaint, in essence, alleges that military functions carried out conspiratorially in a war zone by military personnel and civilian contract employees violated rules and norms adopted for those functions by the military. Allowing the case to proceed would allow judicial scrutiny of military policies and practices in a way that could not be remedied in an appeal from the final judgment. Second, the district court effectively determined conclusively the question of whether state tort law can be applied to a battlefield context. Just as immunity from suit must be recognized in the early stages of litigation in order to have its full effect, battlefield preemption must also be recognized in order to prevent judicial scrutiny of an active military zone. Third, the disputed questions are collateral to resolution on the merits. The issues raised both here and in the district court are entirely separate from the merits. Indeed, in reaching our decisions here and in Al Shimari v. CACI International, we have accepted as true the plaintiffs' allegations that the defendants engaged in a conspiracy with military personnel to torture them, abuse them, and cover up those actions. Fourth and finally, and perhaps most important to exercising jurisdiction in this case, we conclude that the federal preemption doctrine underlying our opinion represents a strong public policy interest, where wartime actions within a United States military prison are being challenged in a civilian court under state tort law.However plausible these contentions are in the abstract, they completely fail to appreciate a critical distinction the Supreme Court has previously drawn--between immunity defenses (the denial of which have usually been held to be immediately appealable) and defenses to liability like preemption (the denial of which have usually not been held to be immediately appealable). After all, the purpose of an immunity defense is to protect a defendant from unnecessary litigation (which would be undermined if the denial thereof could not be immediately appealed). In contrast, the purpose of a preemption defense is for the defendant to argue on the merits that federal law precludes (otherwise available) liability under state law. [Those interested in a longer form of these arguments should check out this amicus brief that I helped to put together for the en banc Fourth Circuit, which articulates this distinction in more detail.] Moreover, this point is not just a technicality; as Judge King explained in his dissent in Al-Quraishi, "the review of prejudgment appeals as a matter of course would 'undermine [ ] efficient judicial administration and encroach[ ] upon the prerogatives of district court judges, who play a special role in managing ongoing litigation.' A surfeit of interlocutory appeals would also subject meritorious lawsuits to 'the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.'" Especially in suits against government contractors, blurring the distinction between immunity and preemption also risks conflating the very different legal regimes in which government officers operate as compared to their private contractor brethren. In short, whatever Saleh is, it's not an immunity defense, and so Al-Quraishi's reasoning is simply incorrect. To be fair, the defendants in both cases also claimed that they possessed a "law-of-war immunity" from such suits (which would presumably have applied to the tort suits even without federal common law preemption). Perhaps because of the plaintiffs' counterarguments, i.e., that such immunity (i) does not apply to government contractors; (ii) does not apply to suits brought in U.S. courts; and (iii) does not extend to violations of the law of war, the Court of Appeals did not rely on such immunity as the basis for jurisdiction. Indeed, I think it's quite a stretch to argue that private contractors are entitled to such immunity, given the distinct reasons why it is bestowed on government officers--and the criminal liability those officers may nevertheless face in cases in which their conduct violates the laws of war. As a result, there is a serious jurisdictional defect in both of these cases, and a fairly obvious way for the en banc Fourth Circuit to avoid the (in my view, extremely difficult) merits issues until and unless they arise on post-judgment appeal.