Professor Laura Dickinson

Over at Balkinization, Professor Laura Dickinson has an excellent post on the issue of tort liability for security contractors.  Drawing upon her forthcoming book, Outsourcing War and Peace, Dickinson notes:

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).

(And I might that if the third parties are "aliens," they potentially could bring suit under the Alien Tort Statute, claiming that they had suffered a "tort in violation of the law of nations.")

Dickinson then goes on to discuss potential bars to courts reaching the merits on such suits: the political question doctrine and contractor immunity. On the political question doctrine, she explains:

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.

I agree with Dickinson's assessment and go back to Justice Powell's concurrence in Goldwater v. Carter. In that case, Powell argued that the court needs to ask itself three questions to determine whether to apply the political question doctrine. If the answer to any of these question is "yes," the court should rule that the case presents a non-justiciable political question. The questions are:  1) Is this issue committed by the text of the Constitution to a coordinate branch of government? 2) Does the issue move the court beyond its area of judicial expertise (i.e. Is there a discoverable standard for the court to apply?) and 3) Does prudence counsel against judicial action? (In other words, would a court ruling likely embarrass the political branches?)  The first two questions-- as Dickinson suggests-- don't seem to pose a problem. I suspect a court could also use the "prudence" argument to duck the cases, but I don't really see how ruling on the behavior of private contractors would produce the type of embarrassment envisioned by Justice Powell.

On the issue of contractor immunity, Dickinson elaborates:

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 Boyle v. 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), [2000] 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, [2006] UKHL 26.

I am not very familiar with these cases, but Dickinson makes a good case that court may, in fact, refuse to grant immunity-- at least in some cases.

In the end, with all the publicity that Blackwater and other contractors are now receiving, i suspect we will begin to see a whole host of civil suits-- in addition, of course,  to any criminal charges that may be brought by the Iraqi or US governments.