an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This the second in a series of posts (the first one is here) concerning the increasing use of military contractors and possible alternative mechanisms for holding them accountable. My discussion mostly tracks arguments I make in my forthcoming book, Outsourcing War and Peace.
In the debate that’s emerging about accountability of security contractors, and military contractors more broadly, we haven’t yet talked much about civil liability through the domestic tort system. But there are a number of interesting cases working their way through the courts, and some open questions that will be absolutely crucial in determining whether the tort framework will be available.
There are basically three categories of cases: (1) suits brought by troops who’ve been injured by a contractor (an example here would be Carmichael v. KBR, 450 F. Supp. 2d 1373 (N.D. Ga. 2006), filed after a soldier suffered massive injuries in Iraq when the truck he was escorting, owned and operated by KBR and Halliburton, overturned in a ravine in Iraq); (2) suits brought by contractor employees (an example here would be the suit brought against Haliburton for deploying convoy as a decoy in an area the contractor allegedly knew to be under attack); (3) suits by third parties who’ve been injured by contractors (an example here would be the pair of cases brought by Abu Ghraib victims against CACI, Inc. and Titan Inc., the firms that provided interrogators and translators at the prison), see Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (2005); Saleh v. Titan Corp.,436 F. Supp. 2d 55 (D.D.C. 2006).
For each, the threshold issue is whether courts will even agree to hear the cases, or instead dismiss them either on political question or immunity grounds. I address each of these grounds in turn.
First, courts may refuse to hear contractor suits by invoking the idea that such suits implicate fundamentally political choices that courts should refrain from reviewing. Yet, although courts have in fact dismissed suits against contractors on this ground, see, e.g.,Whitaker v. Kellogg, Brown & Root, Inc., 444 F. Supp. 2d 1277 (M.D. Ga. 2006); Fisher v. Halliburton, 454 F. Supp. 2d 637 (S.D. Tex. 2005), it seems to me to be a clearly inappropriate use of the political question idea. After all, the doctrine is only meant to exclude from judicial review “those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Assoc. v. American Cetacean Society, 478 U.S. 221, 230 (1986). As one court held in refusing to dismiss a case against a contractor on political question grounds, “Controversies stemming from war are not automatically deemed political questions merely because militaristic activities are within the province of the Executive… Tort suits are within the province of the judiciary, and that conclusion is not automatically negated simply because the claim arises in a military context, or because it bears tangentially on the powers of the executive and legislative branches.” McMahon v. Presidential Airways, Inc., 460 F. Supp. 2d 1315, 1320-21 (M.D. Fla. 2006); see also Ibrahim. The 11th Circuit in McMahon affirmed this rationale for rejecting a political question defense just this past Friday, 2007 WL 2891086, and I expect other courts will follow this logic, given that the political question doctrine is such a dubious rationale for dismissing tort suits against contractors.
A more serious, though not insurmountable, obstacle is the doctrine of contractor immunity, which bars some suits against government contractors who commit torts. This is a bit complicated, however, so it requires some explanation. With regard to the government, there is a doctrine known as sovereign immunity, which generally prevents tort suits against federal governmental actors. The Federal Tort Claims Act, however, waives this immunity in certain instances, while preserving the immunity for certain specified classes of cases. Two that are relevant here are immunity for governmental actors undertaking discretionary decision-making, and immunity for governmental actors engaging in combatant activities. Thus, for example, troops can’t sue the Secretary of Defense, say, for injuries they suffer on the battlefield. (Indeed, in Feres v. United States, 340 U.S. 135 (1950), the Supreme Court articulated a specific immunity doctrine for soldiers suing the government for such injuries).
The question with regard to contractors, however, is whether these governmental immunities extend to them also. In this regard, the leading US Supreme Court case is Boylev. United Technologies, 487 U.S. 500 (1988). Here, the Court indicated that the immunity could apply to contractors when they were undertaking the nondiscretionary provision of a product ordered by the government (in Boyle it was a Sikorsky helicopter). The Court reasoned that when the government sets the precise specifications and the contractor is merely carrying out the order, it is the government that is exercising discretion, not the contractor, and therefore the contractor cannot be sued for a decision the government made.
In the case of military contractors, however, the contractor is providing a service, rather than a product, and is usually acting with far more discretion than Sikorsky was in Boyle. Thus, I think it is fair to say that Boyle does not resolve the immunity question in this context, and three district courts have refused to grant immunity in private contractor cases, at least at the motion to dismiss stage, see Ibrahim, supra; McMahon, supra; Carmichael v. Kellogg, Brown & Root Services, Inc., 450 F. Supp. 2d 1373 (N.D. Ga. 2006), though other cases go the other way, see, e.g., Fisher v. Halliburton, 454 F. Supp. 2d 637 (S.D. Tex. 2005). Certainly, there is a huge difference between the facts of Boyle and the one presented by incidents like the one involving Blackwater. And though one might go so far as to say that negligence cases involving battlefield contractors implicate the combatant activities immunity, claims of intentional torts seem to me to be a far different matter. Moreover, at least one court has suggested that contractors can never invoke immunity of any sort to shield themselves from human rights claims, see In re Agent Orange Prod. Liab. Litig.,373 F. Supp. 2d 7, 85-90 (EDNY 2005), and I would certainly agree with that position, though it should be noted that, as a matter of international and comparative law, the precise scope of immunity for governmental actors accused of violating human rights or humanitarian law is unsettled. Compare, e.g., Ex Parte Pinochet(No. 3),  1 A.C. 147, 204-05 (H.L. 1999), with Democratic Republic of the Congo v. Belgium, ICJ Reports 2002, p. 3 and Jones v. Ministry of the Interior,  UKHL 26.
Significantly, if these two procedural obstacles (political question and immunity) can be overcome, then contractors committing abuses are actually more amenable to civil suit than similarly situated government actors, whose claims to immunity are far stronger. Thus, the use of domestic tort claims to vindicate values of international human rights and humanitarian law appears to be an under-explored mechanism for holding contractors accountable, at least in extreme cases of abuse. Posted
by Laura Dickinson [link]
We do not want to open this Pandora's Box.
Robert Novak has a timely column on this subject and the real world facts do not commend exposing those who serve on our battlefields to the US tort money chase.
I would also recommend Jack Goldsmith's book Terror President for its discussion of how the enemy is abusing western legal systems as an asymmetrical war fighting tool to attack our leaders and troops.
A question for Laura Dickinson, more related to a previous post, for a clarification. I believe you stated that Blackwater might be liable under Iraqi law even pursuant toe CPA Order no. 17 as acting beyond the scope of the terms and conditions of their contract. CPA Order no. 17 also specifies that the Sending State may certify "that its Contractor acted pursuant to the terms and conditions of the Contract [which] shall in any Iraqi legal process, be conclusive evidence of the facts so certified." Do you read this as meaning that, if the Bush administration certified that Blackwater's actions were within the terms and conditions of its contract, this would definitively preclude any legal action by the Iraqi government?
Thus, the use of domestic tort claims to vindicate values of international human rights and humanitarian law appears to be an under-explored mechanism for holding contractors accountable, at least in extreme cases of abuse
In our mercenary legal system, there are very few opportunities to make a hefty contingency fee which remain unexplored for long.
The Washington Post is reporting that the US lawyers have already signed up the alleged victims of the Black water incident earlier this month and filed suit in Federal court.
I had a good belly laugh when I read:
Susan Burke, one of the lawyers who filed the lawsuit, said the families approached legal representatives in Baghdad in the hope of obtaining some sort of accountability for the shootings.
Yup, these American attorneys just happened to be in Baghdad on other business when these Iraqi families found them by accident.
Translation: Our attorneys got on the first airplane to Baghdad before the bodies were cold and directly solicited the families in probable violation of multiple ethical and bar rules.
Burke appears to be a partner in the class action firm of Burke O'Neil and has been developing this new line of business since 2004.
BAGHDAD, Iraq (CNN) -- U.S. soldiers investigating a shooting by Blackwater guards that left 17 Iraqis dead found no evidence the security contractors were fired upon, a source familiar with a preliminary U.S. military report said Friday.