What if Texas, upset with the goings on in Iraq, passed legislation banning the state’s residents from serving as soldiers in the war?
The question was raised today during argument in the U.S. Court of Appeals for the D.C. Circuit, where a three-judge panel grappled with issues in two tort suits by private parties against government contractors over their alleged role in abusing detainees at the Abu Ghraib prison in Iraq. The panel judges touched on hypothetical scenarios involving the extent to which states can regulate the war effort.
A Williams & Connolly partner, Ari Zymelman, urged the panel judges—Laurence Silberman, Merrick Garland, and Brett Kavanaugh—to affirm a D.C. federal district court ruling that found a government contractor immune in a Abu Ghraib torture lawsuit. State law, Zymelman argued, cannot be used to regulate federal combat-related activity.
Throughout the more than two hours of argument, Kavanaugh returned often to the doctrine of implied preemption, exploring whether state litigation stemming from combatant-related activity would interfere with U.S. foreign affairs.
Two contractors, CACI and Titan (which is now known as L-3) provided linguistic services for the government. CACI provided interrogators, and Titan offered up translators. Williams & Connolly represents Titan. Steptoe & Johnson partner J. William Koegel Jr. argued for CACI, contending that this matter was a political question best left for the political branches. U.S. District Court Judge James Robertson in 2007 denied CACI's motion for summary judgment and ordered a jury trial. Titan won its motion for summary judgment. The panel judges heard argument in both cases today.
Susan Burke of Burke O’Neill in Philadelphia, who represents Abu Ghraib torture victims and their families, argued the Arlington-based CACI and Titan, based in New York, are not immune from a tort claim because the alleged torture at the prison was outside the scope of the work the contractors agreed to perform.
“This is a case about stacking people up in pyramids, naked,” Burke said in court. The corporations, she argued, should be held responsible for breaching a duty of care.
The Justice Department has remained silent in the litigation, something Garland noted several times. “There’s no question the United States knows what’s going on in this courtroom,” Garland said. “The question is—what should we take from that?”
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