D.C. Circuit finds preemption of suits against civilian contractors at Abu Ghraib.

AuthorCrook, John R.

In September 2009, a divided panel of the Court of Appeals for the D.C. Circuit dismissed as preempted by federal law two suits by Iraqi nationals against U.S. contractors that provided interpreters and interrogators at Abu Ghraib prison during the war in Iraq. (1)

In separate suits, the plaintiffs alleged that the contractors' employees abused them or their relatives while they were detained and interrogated by U.S. forces at Abu Ghraib. Following discovery, the district court dismissed plaintiffs' Alien Tort Statute (2) claims against both corporations. It dismissed the plaintiffs' remaining state law claims against Titan Corporation (which provided interpreters) as preempted under federal law, finding that the interpreters were wholly integrated into military units and were wholly under U.S. government supervision and direction. However, the district court allowed plaintiffs' remaining claims against CACI International and CACI Premier Technology (which provided interrogators) to proceed. It concluded that CACI maintained sufficient control over its employees to have allowed CACI to have prevented the alleged abuses. (3)

The preemption analysis in the D.C. Circuit's majority opinion emphasized the U.S. Supreme Court's 1992 decision in Boyle v. United Technologies Corp., (4) where the Supreme Court found that tort claims against a contractor that built a defective helicopter escape hatch to the government's specifications were preempted. The Supreme Court took guidance from the exception in the Federal Tort Claims Act (FTCA) to the waiver of sovereign immunity for claims "arising out of the combatant activities of the military or armed forces, or the Coast Guard, during time of war." (5) Reasoning from Boyle and the combatant activities exception to the FTCA, the D.C. Circuit concluded that allowing these cases to proceed would conflict with a federal interest in limiting the application of tort law to military operations.

In short, the policy embodied by the combatant activities exception is simply the elimination of tort from the battlefield, both to preempt state or foreign regulation of federal wartime conduct and to free military commanders from the doubts and uncertainty inherent in potential subjection to civil suit. And the policies of the combatant activities exception are equally implicated whether the alleged tortfeasor is a soldier or a contractor engaging in combatant activities at the behest of the military and under the...

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