LAWFARE
HARD NATIONAL SECURITY CHOICES
Immunity vs. Preemption in the Fourth Circuit Torture Cases–And Why That Distinction Matters
by Steve Vladeck
LINK

We’ve previously covered the Fourth Circuit’s pair of decisions in September dismissing tort suits against various contractors arising out of claims of torture at various detention facilities in Iraq–including Abu Ghraib. In the cases, Al Shimari v. CACI Int’l, Inc. and Al-Quraishi v. L-3 Servs., Inc., the Fourth Circuit’s analysis turned on the conclusion that the federal courts have the power to fashion, as a matter of federal common law, a rule analogous to the “combatant activities” exception to the Federal Tort Claims Act. Thus, the logic goes, because that statutory exception would preempt state-law tort claims against federal officer defendants under similar circumstances, the federal courts should use their lawmaking powers to preempt similar claims against private government contractors exercising comparable functions.

Such reasoning relies heavily on the D.C. Circuit’s controversial 2009 decision in Saleh v. Titan Corp. Saleh, in turn, expanded the logic of the Supreme Court’s 1987 decision in Boyle v. United Technologies Corp., in which Justice Scalia held that federal courts could derive from the FTCA the power to fashion a common law defense for contractors in highly-specific cases that would otherwise directly affect the pecuniary interests of the federal government. Like Judge Garland (who dissented in Saleh), I don’t think Saleh (or the more recent Fourth Circuit decisions) remotely follows from Boyle, all the more so because it’s not necessarily obvious that the combatant activities exception itself would have applied. But for reasons I’ll explain below, that’s for another time… For the moment, I thought I’d raise a threshold issue, and a surprisingly hard (if technical) question for the Fourth Circuit in the current appeals: assuming Saleh is rightly decided, what kind of defense is Boyle-like preemption?

Before getting to the different possibilities, let me flag why this matters: Both Al Shimari and Al-Quraishi were interlocutory appeals under the “collateral order doctrine,” which is a carefully circumscribed exception to the final judgment rule of 28 U.S.C. § 1291. That is to say, in both cases, the defendants had their motions to dismiss denied, and sought to take an immediate interlocutory appeal rather than proceeding to discovery. In Al-Quraishi, a divided panel of the Fourth Circuit sustained jurisdiction under the collateral order doctrine, offering four reasons for why these cases presented a valid invocation thereof:

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.

Fourth Circuit Holds Tort Suits Against Military Contractors by Iraqis Alleging Abuse Preempted
by Alan Rozenshtein, Lawfare
LINK

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.

Category Archives: Interrogation: Interrogation Abuses: Civil Liability