Laura Dickinson on Civil Liability for Security Contractors
Oct-8-07 02:01 pm
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.(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).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.
About the editor:
Commentary and analysis at the intersection of international law and politics.
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