A sharply divided federal appeals court in Washington today ruled against a group of Iraqi nationals who are suing two government contractors for alleged torture at the Abu Ghraib detention facility.
The U.S. Court of Appeals for the D.C. Circuit, ruling 2 to 1 in favor of the private contractors, CACI International and Titan, said the suits are preempted by federal law in the national security and foreign policy fields. The suits allege, among other things, that Abu Ghraib prisoners were beaten, electrocuted and raped. The claims include, among others, wrongful death and assault and battery.
The majority opinion, written by Senior Judge Laurence Silberman and joined by Judge Brett Kavanaugh, upheld a lower court decision granting summary judgment in favor of Titan; the appeals court reversed the denial of summary judgment for CACI. Click here for a copy of the opinion.
Williams & Connolly partner Ari Zymelman, who argued for Titan, declined to comment on the opinion. William Koegel Jr., a partner in the Washington office of Steptoe & Johnson who argued for CACI, was not immediately reached for comment. Susan Burke of Washington’s Burke O’Neill argued for the plaintiffs; she was not reached for comment this morning.
The Justice Department did not intervene in the suit and did not file an amicus brief on behalf of the defendants.
Silberman wrote that allowing the plaintiffs’ suit and similar cases to move forward will “as often as not devolve into an exercise of finger-pointing between the defendant contractor and the military, requiring extensive judicial probing of the government’s wartime policies.”
“Allowance of such suits will surely hamper military flexibility and cost-effectiveness, as contractors may prove reluctant to expose their employees to litigation-prone combat situations,” Silberman wrote. The plaintiffs, Silberman noted, retain rights under the Foreign Claims Act.
“To be sure, the executive branch has broadly condemned the shameful behavior at Abu Ghraib documented in the now infamous photographs of detainee abuse,” Silberman wrote. “This disavowal does not, however, bear upon the issue presented in this tort suit against these defendants.”
In dissent, Judge Merrick Garland said the suits against the contractors should be allowed to move forward in the U.S. District Court for the District of Columbia. Garland’s 38-page dissent was longer than the majority opinion.
Garland voted to reverse the court ruling granting summary judgment to Titan. And he said he would affirm the denial of summary judgment to CACI. Contractors are not protected from liability under the Foreign Tort Claims Act of 1948, Garland noted.
“No act of Congress and no judicial precedent bars the plantiffs from suing the private contractors—who were neither soldiers nor civilian government employees,” the judge said. Garland, noting Department of Defense statements, said that private contractors are not in the chain of military command and as such as exposed to civil liability.
Garland takes issue with the majority panel’s doubt on whether the plaintiffs were subjected to abuse. “In light of DOD reports about what happened at Abu Ghraib, we can hardly regard those allegations as implausible,” Garland wrote.