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Fourth Circuit allows case to proceed against private military contractors for torture at Abu Ghraib

On Friday, May 11, 2012, the Fourth Circuit Court of Appeals, sitting in a rare 14-judge en banc panel, determined that claims can move forward in the Al-Shimari and Al-Quraishi cases against two private military contractors (L-3—formerally Titan—and CACI) alleged to have tortured and abused the plaintiffs at Abu Ghraib and other detention centers. In so doing, the Fourth Circuit nullified an earlier three-judge panel decision that both dismissed the cases and threatened to impose an expansive and dangerous limit on the ability of victims of abuses by military contractors to use state laws to seek a remedy for the harms they have suffered.

The Al-Shimari and Al-Quraishi cases stem from allegations of torture at notorious Iraqi prisons such as Abu Ghraib. The 76 plaintiffs alleged that the private military contractors, through their employees, agents, and government co-conspirators, deprived the prisoners of basic necessities, beat them, ran electric current through their bodies, subjected them to sexual abuse, humiliation, and traumatizing mock executions.

At the district court level, the contractors raised a number of different arguments to attempt to have the cases dismissed, including arguments that the contractors should be given the same immunities afforded the U.S. military, that the case raised nonjusticiable “political questions” meant for the executive branch alone, and that the state law tort claims were preempted under the doctrine of foreign affairs preemption for their interference with the federal government’s conduct of the war in Iraq. These types of arguments raised by the defendant contractors, if accepted, would dangerously limit the remedies available to victims of abuse by military contractors in the future.

While these arguments were rejected by the district courts in both cases, a divided three-judge panel of the Fourth Circuit accepted the appeal, and dismissed the cases for a variety of reasons, including through the application of a grossly expansive interpretation of the preemption doctrine.

We supported the plaintiffs by submitting amicus briefs both before the three-judge panel, and before the en banc court. As I mentioned in an earlier blog post, our amicus brief made clear that foreign affairs preemption simply does not apply to limit the ability of state courts to provide a remedy in tort for the abusive conduct of the private military contractors in these cases—and the expansive interpretation argued for by defendants or adopted by the three-judge panel was simply misguided and dangerous.

In last Friday's en banc decision, the Fourth Circuit at least temporarily corrected the error. The court dismissed the appeal on the separate and distinct ground that the court of appeals lacked the jurisdiction to hear the appeal at this early stage of the case. (For those of you Civ Pro geeks, the reason was because the district courts’ rejection of defendants’ motions to dismiss did not amount to a “final judgment” subject to an appeal, nor did the defenses raised by the defendants fall within the narrow exception carved out for interlocutory appeals under the “collateral order doctrine”). Thus, while the court did not directly address the applicability of the foreign affairs preemption doctrine, the decision still nullifies the three-judge panel’s dangerous precedent in that area.

For now, the en banc opinion is an important step for justice for the plaintiffs in this case, and for similarly situated victims of abusive treatment by private military contractors. The decision stands to put the victims of torture and degrading treatment one step closer to an opportunity to demand justice in the courtroom.