Suhail Al Shimari v. CACI Premier Technology, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1831
SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID;
SALAH HASAN NUSAIF AL-EJAILI; ASA’AD HAMZA HANFOOSH AL-
ZUBA’E,
Plaintiffs - Appellants,
and
SA’AD HAMZA HANTOOSH AL-ZUBA’E,
Plaintiff,
v.
CACI PREMIER TECHNOLOGY, INC.,
Defendant – Appellee,
and
TIMOTHY DUGAN; CACI INTERNATIONAL, INC.; L-3 SERVICES, INC.,
Defendants.
-----------------------------------
PROFESSORS OF CONSTITUTIONAL LAW AND FEDERAL COURTS; JUAN E.
MENDEZ, U.N. SPECIAL RAPPORTEUR ON TORTURE; RETIRED MILITARY
OFFICERS; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMNESTY
INTERNATIONAL, AND HUMAN RIGHTS WATCH; ALBERTO MORA, FORMER
GENERAL COUNSEL, U.S. DEPARTMENT OF THE NAVY; ABUKAR HASSAN
AHMED, DR. JUAN ROMAGOZA ARCE, ZITA CABELLO, AZIZ MOHAMED
DERIA, CARLOS MAURICIO, GLORIA REYES, OSCAR REYES, CECILIA
SANTOS MORAN, ZENAIDA VELASQUEZ, AND BASHE ABDI YOUSUF,
Amici Supporting Appellants,
PROFESSIONAL SERVICES COUNCIL - THE VOICE OF THE GOVERNMENT
SERVICES INDUSTRY; COALITION FOR GOVERNMENT PROCUREMENT;
KBR, INC.,
Amici Supporting Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00827-GBL-JFA)
Argued: May 12, 2016 Decided: October 21, 2016
Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge Keenan wrote
the opinion, in which Judge Floyd and Judge Thacker joined.
Judge Floyd wrote a separate concurring opinion.
ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York,
New York, for Appellants. John Frederick O’Connor, Jr., STEPTOE
& JOHNSON, LLP, Washington, D.C., for Appellee. ON BRIEF:
Katherine Gallagher, CENTER FOR CONSTITUTIONAL RIGHTS, New York,
New York; Robert P. LoBue, PATTERSON BELKNAP WEBB & TYLER LLP,
New York, New York; Shereef Hadi Akeel, AKEEL & VALENTINE, P.C.,
Troy, Michigan; Jeena Shah, CONSTITUTIONAL RIGHTS &
INTERNATIONAL HUMAN RIGHTS CLINIC, Newark, New Jersey, for
Appellants. Stephen I. Vladeck, Washington, D.C.; Charles S.
Barquist, Los Angeles, California, Betre M. Gizaw, MORRISON &
FOERSTER LLP, Washington, D.C., for Amici Professors of
Constitutional Law and Federal Courts. Eric L. Lewis, A.
Katherine Toomey, James P. Davenport, Waleed Nassar, LEWIS BAACH
PLLC, Washington, D.C.; Melissa Hooper, HUMAN RIGHTS FIRST, New
York, New York, for Amici Retired Military Officers. Dror
Ladin, Hina Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
New York, New York, for Amici American Civil Liberties Union
Foundation, Amnesty International, and Human Rights Watch.
George M. Clarke, III, BAKER & MCKENZIE LLP, Washington, D.C.;
Alberto Mora, Carr Center For Human Rights Policy, HARVARD
KENNEDY SCHOOL, Cambridge, Massachusetts, for Amicus Alberto
Mora. William J. Aceves, CALIFORNIA WESTERN SCHOOL OF LAW, San
Diego, California; Deena R. Hurwitz, International Human Rights
2
Law Clinic, AMERICAN UNIVERSITY, Washington, D.C., for Amicus
Juan E. Mendez. L. Kathleen Roberts, Nushin Sarkarati, THE
CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California;
Michael E. Tigar, Oriental, North Carolina; Ali A. Beydoun,
UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Washington, D.C.,
for Amici Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita
Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes,
Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe
Abdi Yousuf. Lawrence S. Ebner, Lisa N. Himes, Tami Lyn
Azorsky, Jessica C. Abrahams, DENTONS US LLP, Washington, D.C.,
for Amici Professional Services Council-The Voice of the
Government Services Industry, and Coalition for Government
Procurement. Raymond B. Biagini, Daniel L. Russell Jr., Herbert
L. Fenster, COVINGTON & BURLING LLP, Washington, D.C., for
Amicus KBR, Incorporated.
3
BARBARA MILANO KEENAN, Circuit Judge:
Suhail Al Shimari, Taha Rashid, Salah Al-Ejaili, and Asa’ad
Al-Zuba’e (the plaintiffs), four Iraqi nationals, alleged that
they were abused while detained in the custody of the United
States Army at Abu Ghraib prison, located near Baghdad, Iraq, in
2003 and 2004. They were detained beginning in the fall of
2003, and ultimately were released without being charged with a
crime. In 2008, they filed this civil action against CACI
Premier Technology, Inc. (CACI), which provided contract
interrogation services for the military at the time of the
alleged mistreatment.
In their third amended complaint, the plaintiffs alleged
pursuant to the Alien Tort Statute (ATS), 28 U.S.C. § 1350, that
CACI employees committed acts involving torture and war crimes,
and cruel, inhuman, or degrading treatment. The plaintiffs also
asserted various tort claims under the common law, including
assault and battery, sexual assault and battery, and intentional
infliction of emotional distress.
This case is before this Court for the fourth time. In our
most recent decision, we remanded the case to the district court
to conduct jurisdictional discovery on the issue whether the
political question doctrine barred the plaintiffs’ claims. On
remand, after reopening discovery, the district court dismissed
the plaintiffs’ complaint on the ground that it presented a non-
4
justiciable political question. The court based its decision on
three grounds: (1) that the military exercised direct control
over interrogation operations at Abu Ghraib; (2) that
adjudication of the plaintiffs’ claims would require the court
improperly to question sensitive military judgments; and (3)
that the court lacked any judicially manageable standards to
resolve the plaintiffs’ claims.
The plaintiffs once again appeal. Upon our review, we
conclude that the district court erred in its analysis by
failing to determine whether the military exercised actual
control over any of CACI’s alleged conduct. We hold that
conduct by CACI employees that was unlawful when committed is
justiciable, irrespective whether that conduct occurred under
the actual control of the military. We further hold that acts
committed by CACI employees are shielded from judicial review
under the political question doctrine if they were not unlawful
when committed and occurred under the actual control of the
military or involved sensitive military judgments.
We therefore vacate the district court’s judgment. We
remand the case for the district court to re-examine its subject
matter jurisdiction under the political question doctrine in
accordance with the above holdings.
5
I.
We recounted the circumstances underlying the plaintiffs’
complaint and the complicated procedural history of this case at
length in our previous opinion, Al Shimari v. CACI Premier
Tech., Inc., 758 F.3d 516 (4th Cir. 2014) (Al Shimari III). We
will review here only the facts relevant to the present appeal.
Following the invasion of Iraq in 2003, the United States
took control of Abu Ghraib prison (Abu Ghraib), a facility
located near Baghdad, Iraq that previously was under the control
of Saddam Hussein. Upon assuming control of the facility, the
United States military used the prison to detain criminals,
enemies of the provisional government, and other persons held
for interrogation related to intelligence gathering. Due to a
shortage of military interrogators, the United States government
entered into a contract with CACI to provide additional
interrogation services at Abu Ghraib.
As documented in a later investigation conducted by the
United States Department of Defense, “numerous incidents of
sadistic, blatant, and wanton criminal abuses were inflicted on
several detainees” at Abu Ghraib between October and December
2003. Al Shimari III, 758 F.3d at 521 (citing Maj. Gen. Antonio
M. Taguba, Article 15-6 Investigation of the 800th Military
Police Brigade 16 (2004) (Taguba Report)). Department of
Defense investigators concluded that CACI interrogators as well
6
as military personnel engaged in such abusive conduct. Id.
(citing Taguba Report at 48 and Maj. Gen. George R. Fay, Article
15-6 Investigation of the Abu Ghraib Detention Facility and
205th Military Intelligence Brigade 7-8, 84, 86-87, 89, 116-17,
132-35 (2004)). Numerous service members were disciplined
administratively or punished under military law by court martial
for conduct related to these acts. Some service members
received significant terms of imprisonment for their role in
these offenses.
The plaintiffs alleged in their complaint that CACI
interrogators entered into a conspiracy with low-ranking
military police officials to commit abusive acts on the
plaintiffs, in order to “soften up” the detainees so that they
would be more responsive during later interrogations. The
plaintiffs further alleged that they were victims of a wide
range of mistreatment, including being beaten, choked,
“subjected to electric shocks,” “repeatedly shot in the head
with a taser gun,” “forcibly subjected to sexual acts,”
subjected to sensory deprivation, placed in stress positions for
extended periods of time, deprived of food, water, and sleep,
threatened with unleashed dogs and death, and forced to wear
women’s underwear.
Additionally, the plaintiffs alleged that CACI
interrogators “instigated, directed, participated in,
7
encouraged, and aided and abetted conduct towards detainees that
clearly violated the Geneva Conventions, the Army Field Manual,
and the laws of the United States.” According to the
plaintiffs, most of these acts of abuse occurred during the
nighttime shift at the prison, in order to reduce the likelihood
that nonparticipants would learn of this conduct. The
plaintiffs contend that these acts of abuse were possible
because of a “command vacuum” at Abu Ghraib, caused by the
failure of military leaders to exercise effective oversight over
CACI interrogators and military police.
CACI moved to dismiss the plaintiffs’ complaint on several
grounds, including the political question doctrine, federal
preemption, derivative sovereign immunity, and lack of subject
matter jurisdiction under the ATS. The district court denied
the defendants’ motion, holding in part that the plaintiffs’
claims did not present a political question. Nevertheless, the
court concluded that it lacked jurisdiction over the plaintiffs’
ATS claims, because CACI was a private party rather than a
governmental actor, and opined that those claims could only
proceed under diversity or federal question jurisdiction.
On appeal, a panel of this Court concluded that the
plaintiffs’ claims were preempted by federal law under the
Supreme Court’s decision in Boyle v. United Technologies Corp.,
487 U.S. 500 (1988). Al Shimari v. CACI Int’l, Inc., 658 F.3d
8
413 (4th Cir. 2011) (Al Shimari I), vacated, 679 F.3d 205 (4th
Cir. 2012) (en banc). On rehearing en banc, this Court vacated
the panel decision and dismissed CACI’s appeal as interlocutory.
Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en
banc) (Al Shimari II).
On remand from Al Shimari II, the district court reinstated
the plaintiffs’ ATS claims, but dismissed without prejudice the
plaintiffs’ claims alleging a conspiracy between CACI and the
military. 1 The district court dismissed as barred by the statute
of limitations the common law claims brought by all the
plaintiffs except Al Shimari. In response, the plaintiffs filed
a third amended complaint to supplement their allegations of
conspiracy, limit their common law claims to Al Shimari, and
name CACI as the only defendant. The third amended complaint
(the complaint) is the complaint at issue in this appeal.
In April 2013, shortly after the third amended complaint
was filed, the deadline for discovery on the merits of the
plaintiffs’ claims expired. The same week, the Supreme Court
issued its decision in Kiobel v. Royal Dutch Petroleum Co., 133
S. Ct. 1659 (2013), which imposed certain limitations on
extraterritorial application of the ATS. Relying on Kiobel, the
1The court also dismissed with prejudice the plaintiffs’
claims against the parent company of CACI, CACI International,
and the conspiracy claims against individual CACI employees.
9
district court dismissed the plaintiffs’ ATS claims, because the
underlying conduct occurred exclusively in Iraq. The district
court also dismissed Al Shimari’s common law tort claims under
Federal Rule of Civil Procedure 12(b)(6), holding that Iraqi law
did not permit imposition of liability on CACI.
On appeal from that decision, in Al Shimari III we
concluded that the district court had jurisdiction over the
plaintiffs’ ATS claims under the Supreme Court’s reasoning in
Kiobel. 758 F.3d 516 (4th Cir. 2014). Although CACI also
argued that the case should be dismissed pursuant to the
political question doctrine, we declined to decide the political
question issue based on the limited appellate record available
at the time. Instead, we vacated the district court’s order
dismissing the ATS and common law claims, and remanded the
entire case for the district court to develop the factual record
regarding the extent of the military’s control over CACI
interrogators and whether CACI’s intended defenses raised any
political issues. Id. at 536-37.
On remand from Al Shimari III, the district court reopened
the record for jurisdictional discovery on the issue of the
political question doctrine, although it appears that minimal,
10
if any, additional discovery was taken. 2 As noted above,
following the reopened discovery period, the district court
dismissed all the plaintiffs’ claims under Federal Rule of Civil
Procedure 12(b)(1) on the ground that they presented a non-
justiciable political question. The plaintiffs now appeal the
district court’s dismissal of their complaint on this ground.
II.
The plaintiffs contend that the district court erred in
dismissing their complaint as non-justiciable under the
political question doctrine. They first assert that the
district court erred in finding that the military had direct
control over formal interrogations at Abu Ghraib prison, and in
failing to evaluate whether the military actually exercised such
control during related activities that occurred outside the
formal interrogation process. In the plaintiffs’ view, we are
not presented with a political question, because a “command
vacuum” existed at Abu Ghraib in which the military did not
exercise actual control over the conduct of the military police
and the CACI interrogators.
2
Notably, after eight years of litigation, to date only one
of the plaintiffs has been deposed in this case, because the
United States government has not allowed the plaintiffs to enter
the United States.
11
The plaintiffs also argue that their claims would not
require the courts to evaluate sensitive military judgments
because the claims challenge the legality, rather than the
reasonableness, of CACI’s conduct. Separately, the plaintiffs
assert that the district court erred in concluding that it
lacked manageable standards for resolving their claims.
In response, CACI contends that the district court properly
concluded that this case presents a political question.
According to CACI, the district court’s finding that the
military exercised control over interrogation operations at Abu
Ghraib ends the issue of justiciability in this case. CACI also
maintains that the district court correctly held that the case
is non-justiciable because judicial review of the interrogation
tactics used would require a court to question sensitive
military judgments. Finally, CACI asserts that the district
court correctly concluded that it lacked manageable standards
for resolving the plaintiffs’ claims. We disagree with CACI’s
arguments.
III.
In reviewing a district court’s dismissal of a claim for
lack of jurisdiction under Federal Rule of Civil Procedure
12(b)(1), we review the court’s factual findings for clear error
and its legal conclusions de novo. In re KBR, Inc., Burn Pit
12
Litig., 744 F.3d 326, 333 (4th Cir. 2014). We may consider the
plaintiffs’ pleadings as “mere evidence” on the question of
jurisdiction, and may also consider evidence outside the
pleadings without converting the motion to dismiss into a motion
for summary judgment. Id.
The district court is authorized to resolve factual
disputes in evaluating its subject matter jurisdiction. United
States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir.
2009); Williams v. United States, 50 F.3d 299, 304 (4th Cir.
1995); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
However, “when the jurisdictional facts and the facts central to
a tort claim are inextricably intertwined,” the district court
ordinarily should withhold a determination regarding subject
matter jurisdiction and proceed to the merits of the case.
Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).
A.
The political question doctrine derives from the principle
of separation of powers, and deprives courts of jurisdiction
over “controversies which revolve around policy choices and
value determinations constitutionally committed” to Congress or,
as alleged in this case, to the executive branch. Japan Whaling
Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). This
doctrine is a “narrow exception” to the judiciary’s general
obligation to decide cases properly brought before the courts.
13
Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012). Although
most military decisions are committed exclusively to the
executive branch, a claim is not shielded from judicial review
merely because it arose from action taken under orders of the
military. Burn Pit, 744 F.3d at 334; see also Japan Whaling,
478 U.S. at 229-30 (“[I]t is error to suppose that every case or
controversy which touches foreign relations lies beyond judicial
cognizance.”) (quoting Baker v. Carr, 369 U.S. 186, 211 (1962))
(internal quotation marks omitted).
The Supreme Court established a six-factor test in Baker v.
Carr, 369 U.S. 186 (1962) (the Baker factors), to aid courts in
determining whether a case presents a political question. These
factors ask whether there is: “(1) a textually demonstrable
constitutional commitment of the issue to a coordinate political
department, (2) a lack of judicially discoverable and manageable
standards for resolving the issue, (3) the impossibility of
deciding the issue without an initial policy determination of a
kind clearly for nonjudicial discretion, (4) the impossibility
of a court’s undertaking independent resolution of the issue
without expressing lack of the respect due coordinate branches
of government, (5) an unusual need for unquestioning adherence
to a political decision already made, or (6) the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.” Burn Pit, 744 F.3d at 334 (citing
14
Baker, 369 U.S. at 217) (internal quotations and alterations
omitted).
In Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d
402 (4th Cir. 2011), we considered the proper application of the
Baker factors to cases involving the civil liability of a
government contractor in a negligence case. We distilled the
Baker factors into two questions for consideration in
determining whether a court has subject matter jurisdiction in a
suit against a government contractor. We first asked “whether
the government contractor was under the ‘plenary’ or ‘direct’
control of the military” (direct control). Al Shimari III, 758
F.3d at 533 (quoting Taylor, 658 F.3d at 411). Second, we asked
whether “national defense interests were ‘closely intertwined’
with military decisions governing the contractor’s conduct, such
that a decision on the merits of the claim ‘would require the
judiciary to question actual, sensitive judgments made by the
military.’” Id. at 533-34 (quoting Taylor, 658 F.3d at 411).
An affirmative response to either of the two Taylor factors,
namely, the fact of direct control or the need to question
sensitive military judgments, generally triggers application of
the political question doctrine. Id.
The plaintiff in Taylor, a Marine who suffered injuries
resulting from an electrical shock sustained on a military base
in Iraq, asserted a negligence claim against a government
15
contractor based on the contractor’s activation of a generator
while the plaintiff was performing work on a wiring box. 658
F.3d at 403-04. We concluded that because the contractor
intended to assert as a defense that the military was
contributorily negligent, the district court would be forced to
“question actual, sensitive judgments made by the military.”
Id. at 411-12 (internal quotation marks omitted). We therefore
held that the political question doctrine deprived the court of
jurisdiction to consider the plaintiff’s negligence claim. Id.
at 412.
Our holding in Taylor reflected our concern that when
national defense interests are at stake, courts must carefully
assess the extent to which these interests may be implicated in
any litigation of a plaintiff’s claims involving the conduct of
a military contractor. Taylor, 658 F.3d at 409-10. We give
this question particular attention because courts are ill-
equipped to evaluate discretionary operational decisions made
by, or at the direction of, the military on the battlefield.
See generally Carmichael v. Kellogg, Brown & Root Servs., Inc.,
572 F.3d 1271 (11th Cir. 2009).
B.
The present case requires us to examine the factors and
related considerations discussed in Taylor. However, because
Taylor was a negligence case and the present case involves
16
allegations of intentional acts, we frame our analysis in
accordance with that distinction.
i.
As stated above, the first Taylor factor asks whether the
acts occurred while the government contractor was under the
direct control of the military. Taylor, 658 F.3d at 411. In
Al Shimari III, we also described this factor in terms of “the
extent to which military personnel actually exercised control”
over the contractor’s acts. Al Shimari III, 758 F.3d at 535.
In the present case, after considering this first Taylor factor,
the district court credited the evidence that the military
maintained formal control over the interrogations, and concluded
that the case presented a political question depriving the court
of subject matter jurisdiction.
In the district court, the evidence regarding the
military’s control over the CACI interrogators proceeded on
parallel tracks, with evidence demonstrating formal military
control presented alongside evidence showing that the military
failed to exercise actual control over the interrogators. With
regard to formal control, the record shows that the military was
in charge of the official command structure at Abu Ghraib and
instituted procedures governing the interrogation process. For
example, in September and October 2003, military leadership
located in Baghdad issued two memoranda establishing the
17
particularized rules of engagement for interrogations (IROEs)
conducted at Abu Ghraib, which authorized the use of several,
specific interrogation techniques. 3 In addition, all
interrogators were required to submit interrogation plans to the
military chain of command for advance approval. These plans
specified the interrogation methods that the particular
interrogators intended to employ and included requests for
separate approval of more aggressive tactics, if necessary.
Other evidence in the record, however, indicated that the
military failed to exercise actual control over the work
conducted by the CACI interrogators. In one government report,
an investigator unequivocally concluded that military leaders at
Abu Ghraib “failed to supervise subordinates or provide direct
oversight” of the mission, and that the “lack of command
presence, particularly at night, was clear.” 4 Lt. Gen. Anthony
R. Jones, AR 15-6 Investigation of the Abu Ghraib Prison and
205th Military Intelligence Brigade 1137 (2004). The same
report emphasized that interrogation operations were “plagued by
3 We observe that the September 2003 IROE memorandum
authorized aggressive interrogation tactics to be used under
certain conditions, including the use of stress positions and
“sleep management.” The later, superseding memorandum removed
these tactics.
4 Generally, investigative government reports of this nature
are admissible as an exception to the rule against hearsay under
Federal Rule of Evidence 803(8)(A)(iii).
18
a lack of an organizational chain of command presence and by a
lack of proper actions to establish standards and training” by
senior leadership. Id. Additional evidence in the record also
indicates that CACI interrogators ordered low-level military
personnel to mistreat detainees. This evidence supported the
plaintiffs’ contention that the formal command authority held by
the military did not translate into actual control of day-to-day
interrogation operations.
The above evidence of a “command vacuum” raises the
question whether the military exercised actual control over any
interrogation-related activities during which the challenged
conduct occurred. Also, through operation of the Army Field
Manual 5 and IROEs, the military may have expressly prohibited the
5 The United States Department of the Army Field Manual 34-
52, Intelligence Interrogation (Sept. 28, 1992) (the Field
Manual or Manual), in effect at the time of the alleged events
in this case, states that interrogations must occur within the
“constraints” of the Uniform Code of Military Justice as well as
the Geneva Conventions. Id. preface at iv-v. The Manual
expressly prohibits “[p]hysical or mental torture and coercion,”
defining “torture” as “the infliction of intense pain to body or
mind to extract a confession or information, or for sadistic
pleasure.” Id. at 1-8. The Manual also lists examples of
prohibited practices, including some of the techniques
challenged in this case, such as electric shocks, food
deprivation, “[a]ny form of beating,” “[f]orcing an individual
to stand, sit, or kneel in abnormal positions for prolonged
periods of time,” mock executions, and “[a]bnormal sleep
deprivation.” Id. The Field Manual cautions that any “[s]uch
illegal acts are not authorized and will not be condoned” by the
military. Id.
19
use of certain interrogation methods, but failed to enforce
these prohibitions in practice.
Rather than addressing the issue of actual control, the
district court began and ended its analysis by drawing
conclusions based on the evidence of formal control. This
approach failed to address the full scope of review that the
district court needed to conduct on remand. We explained in Al
Shimari III that the record was inconclusive “regarding the
extent to which military personnel actually exercised control
over CACI employees in their performance of their interrogation
functions.” Al Shimari III, 758 F.3d at 535. We further
observed that we were “unable to determine the extent to which
the military controlled the conduct of the CACI interrogators
outside the context of required interrogations, which is
particularly concerning given the plaintiffs’ allegations that
‘[m]ost of the abuse’ occurred at night, and that the abuse was
intended to ‘soften up’ the detainees for later interrogations.”
Id. at 536.
We thus asked the district court to consider whether the
military actually controlled the CACI interrogators’ job
performance, including any activities that occurred outside the
formal interrogation process. The first Taylor factor is not
satisfied by merely examining the directives issued by the
military for conducting interrogation sessions, or by reviewing
20
any particular interrogation plans that the military command
approved in advance. Instead, the concept of direct control
encompasses not only the requirements that were set in place in
advance of the interrogations, but also what actually occurred
in practice during those interrogations and related activities.
In examining the issue of direct control, when a contractor
engages in a lawful action under the actual control of the
military, we will consider the contractor’s action to be a “de
facto military decision[]” shielded from judicial review under
the political question doctrine. Taylor, 658 F.3d at 410.
However, the military cannot lawfully exercise its authority by
directing a contractor to engage in unlawful activity. Thus,
when a contractor has engaged in unlawful conduct, irrespective
of the nature of control exercised by the military, the
contractor cannot claim protection under the political question
doctrine. The district court failed to draw this important
distinction. Accordingly, we conclude that a contractor’s acts
may be shielded from judicial review under the first prong of
Taylor only to the extent that those acts (1) were committed
under actual control of the military; and (2) were not unlawful.
ii.
We turn now to consider the district court’s treatment of
the second Taylor factor, which asks whether a decision on the
merits of the claim would require the court to “question actual,
21
sensitive judgments made by the military.” Al Shimari III, 758
F.3d at 533-34 (quoting Taylor, 658 F.3d at 411). The district
court concluded that the plaintiffs’ claims were non-justiciable
under this second Taylor factor. The court explained that it
was unequipped to evaluate whether the use of certain “extreme
interrogation measures in the theatre of war” was appropriate or
justified. In the court’s view, adjudicating the plaintiffs’
claims would impinge on the military’s authority to select
interrogation strategies and rules of engagement. Debates
existing within the executive branch at that time regarding the
propriety of certain aggressive interrogation tactics reinforced
the court’s conclusion.
We conclude that the above analysis that the district court
conducted was incomplete. In addressing the second Taylor
factor, the district court erred in failing to draw a
distinction between unlawful conduct and discretionary acts that
were not unlawful when committed.
The commission of unlawful acts is not based on “military
expertise and judgment,” and is not a function committed to a
coordinate branch of government. See Carmichael, 572 F.3d at
1282 (emphasis omitted). To the contrary, Congress has
established criminal penalties for commission of acts
constituting torture and war crimes. See 18 U.S.C. §§ 2340A,
2441. Therefore, to the extent that the plaintiffs’ claims rest
22
on allegations of unlawful conduct in violation of settled
international law or criminal law then applicable to the CACI
employees, those claims fall outside the protection of the
political question doctrine. On remand, the district court must
first segregate such justiciable claims in its analysis before
proceeding to determine whether any claims alleging conduct that
was not unlawful implicated sensitive military judgments under
the second prong of Taylor.
iii.
In reaching this conclusion, we emphasize the long-standing
principle that courts are competent to engage in the traditional
judicial exercise of determining whether particular conduct
complied with applicable law. See El-Shifa Pharm. Indus. Co. v.
United States, 607 F.3d 836, 842 (D.C. Cir. 2010) (en banc)
(majority opinion) (“[T]hat a case may involve the conduct of
the nation’s foreign affairs does not necessarily prevent a
court from determining whether the Executive has exceeded the
scope of prescribed statutory authority or failed to obey the
prohibition of a statute or treaty.”); cf. Gilligan v. Morgan,
413 U.S. 1, 11-12 (1973) (“[W]e neither hold nor imply that the
conduct of the National Guard is always beyond judicial review
or that there may not be accountability in a judicial forum for
violations of law for specific unlawful conduct by military
personnel.”) (emphasis added). Accordingly, when a military
23
contractor acts contrary to settled international law or
applicable criminal law, the separation of powers rationale
underlying the political question doctrine does not shield the
contractor’s actions from judicial review. See Baker, 369 U.S.
at 217.
For the same reasons, this principle generally renders
justiciable claims against a government contractor alleging a
statutory violation. See El-Shifa, 607 F.3d at 851 (Ginsburg,
J., concurring in the judgment). The adjudication of such a
claim requires a court only to engage in the traditional
judicial function of “say[ing] what the law is,” and of
determining how that law applies to the facts of a particular
case, rather than passing judgment on a discretionary policy
choice. Burn Pit, 744 F.3d at 334 (quoting Marbury v. Madison,
5 U.S. (1 Cranch) 137, 177 (1803)).
The Supreme Court likewise has explained that the political
question doctrine does not strip courts of their authority to
construe treaties and agreements entered into by the executive
branch, despite the potential political implications of judicial
review. Japan Whaling, 478 U.S. at 230. Courts thus retain the
ability to apply traditional rules of statutory interpretation
to the facts presented in a particular case. Id. Conducting a
“textual, structural, and historical” examination of a statute
or treaty “is what courts do” and typically is not barred by the
24
political question doctrine. Zivotofsky, 132 S. Ct. at 1427,
1430; see also El-Shifa, 607 F.3d at 856 (Kavanaugh, J.,
concurring in the judgment) (“The Supreme Court has never
applied the political question doctrine in a case involving
alleged statutory violations.”) (emphasis in original). 6
iv.
Applying the Taylor factors in accordance with the above-
stated principles, we hold that any conduct of the CACI
employees that occurred under the actual control of the military
or involved sensitive military judgments, and was not unlawful
when committed, constituted a protected exercise of discretion
under the political question doctrine. Conversely, any acts of
the CACI employees that were unlawful when committed,
irrespective whether they occurred under actual control of the
military, are subject to judicial review. Thus, the plaintiffs’
claims are justiciable to the extent that the challenged conduct
violated settled international law or the criminal law to which
the CACI employees were subject at the time the conduct
6Given the nature of the claims alleged in this case, we
are not presented at this stage of the litigation with “policy
choices and value determinations” embedded within a claim
alleging a violation of customary international law. See El-
Shifa, 607 F.3d at 843-44 (majority opinion) (citation omitted)
(holding non-justiciable a claim under the law of nations
requiring the court to determine whether a U.S. military attack
was “mistaken and not justified”).
25
occurred. 7 Cf. Japan Whaling, 478 U.S. at 230; Hamdi v.
Rumsfeld, 542 U.S. 507, 536 (2004) (explaining that “a state of
war is not a blank check for the President” with respect to
individual rights) (opinion of O’Connor, J.).
We remain mindful, however, that this dichotomy between
lawful discretionary acts and unlawful activity will not always
be clear when applied to particular conduct. Although alleged
conduct that on its face is aggravated and criminal in nature,
such as sexual assault and beatings, clearly will present a
subject for judicial review unaffected by the political question
doctrine, other conduct may not be capable of such clear
categorization. In instances in which the lawfulness of such
conduct was not settled at the time the conduct occurred, and
the conduct occurred under the actual control of the military or
involved sensitive military judgments, that conduct will not be
subject to judicial review. Cf. Viet. Ass’n for Victims of
Agent Orange v. Dow Chem. Co., 517 F.3d 104, 123 (2d Cir. 2008)
(dismissing claims under the ATS because the plaintiffs did not
“ground[] their claims arising under international law in a norm
7
We decline CACI’s invitation to rely on out-of-circuit
precedent cited in its letter submitted to the Court after oral
argument. These citations are not the proper subject of a
submission pursuant to Federal Rule of Appellate Procedure
28(j). And, in any event, these authorities only reinforce our
view that, when a plaintiff’s claim challenges a core foreign
policy decision made by the political branches of government,
the political question doctrine bars review.
26
that was universally accepted at the time of the events giving
rise to the injuries alleged”). The absence of clear norms of
international law or applicable criminal law regarding the
lawfulness of a particular mode of treatment will render that
“grey area” conduct non-justiciable under the political question
doctrine, as long as the conduct was committed under the actual
control of the military or implicated sensitive military
judgments.
Here, the plaintiffs alleged pursuant to the ATS that CACI
interrogators engaged in a wide spectrum of conduct amounting to
torture, war crimes, and/or cruel, inhuman, or degrading
treatment, as well as various torts under the common law. Among
other things, the plaintiffs alleged that they were subjected to
beatings, stress positions, forced nudity, sexual assault, and
death threats, in addition to the withholding of food, water,
and medical care, sensory deprivation, and exposure to extreme
temperatures. Counsel for CACI conceded at oral argument that
at least some of the most egregious conduct alleged, including
sexual assault and beatings, was clearly unlawful, even though
CACI maintains that the plaintiffs cannot show that CACI
interrogators perpetrated any of these abuses.
We decline to render in the first instance a comprehensive
determination of which acts alleged were unlawful when
committed, or whether the plaintiffs have stated claims to
27
relief that could survive a motion filed under Federal Rule of
Civil Procedure 12(b)(6). Nevertheless, as noted above, some of
the alleged acts plainly were unlawful at the time they were
committed and will not require extensive consideration by the
district court. Accordingly, on remand, the district court will
be required to determine which of the alleged acts, or
constellations of alleged acts, violated settled international
law and criminal law governing CACI’s conduct and, therefore,
are subject to judicial review. 8 The district court also will be
required to identify any “grey area” conduct that was committed
under the actual control of the military or involved sensitive
military judgments and, thus, is protected under the political
question doctrine.
8 As with the ATS claims, to the extent that conduct
underlying the common law claims was unlawful, those claims also
will be justiciable. We observe, however, that certain
allegations underlying the common law claims may involve conduct
that, although tortious under the common law, did not constitute
a violation of applicable criminal or international law. A
nonconsensual touching that might constitute battery, or conduct
that might amount to intentional infliction of emotional
distress, under the common law nevertheless may have been an
interrogation tactic that the military lawfully could have
authorized. Accordingly, we express no view on the
justiciability of common law claims alleging conduct that was
not unlawful at the time. We leave this determination to the
district court in the first instance.
In the event that the district court determines that any of
the common law claims are justiciable, the court nevertheless
may elect to reinstate its prior order dismissing those claims
under Rule 12(b)(6), which order this Court has not yet
reviewed.
28
This “discriminating analysis,” see Baker, 369 U.S. at 211,
will require the district court to examine the evidence
regarding the specific conduct to which the plaintiffs were
subjected and the source of any direction under which the acts
took place. If disputed facts are “inextricably intertwined”
with the facts underlying the merits of the plaintiffs’ claims,
the district court should resolve these disputed jurisdictional
facts along with the intertwined merits issues. See Kerns, 585
F.3d at 193.
C.
Distinct from its holding of non-justiciability under
Taylor, the district court separately concluded under the second
Baker factor that the case lacked manageable standards for
judicial resolution of the plaintiffs’ claims. The court
emphasized that its general lack of expertise in applying
international law, and the difficulty of determining the
constraints of such law, also rendered the case non-justiciable.
We disagree with the district court’s conclusion.
Unlike in negligence cases calling into question military
standards of conduct, the district court in the present case is
called upon to interpret statutory terms and established
international norms to resolve the issues presented by the ATS
claims. See Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995)
(“[U]niversally recognized norms of international law provide
29
judicially discoverable and manageable standards for
adjudicating suits brought under the Alien Tort Act.”). Compare
also Carmichael, 572 F.3d at 1287 (“[O]nly the military was in a
position to meaningfully balance [the] risks [of the mission] in
light of its broader strategies and objectives; and only the
military possessed the competence to make the many critical
tactical decisions concerning the safest and most efficacious
way to conduct the convoy.”), with Japan Whaling, 478 U.S. at
230 (noting courts’ competency to apply traditional rules of
statutory interpretation, even in cases presenting “political
overtones”).
With regard to the present case, the terms “torture” and
“war crimes” are defined at length in the United States Code and
in international agreements to which the United States
government has obligated itself. See, e.g., 18 U.S.C. §§ 2340-
2340A (implementing the United States’ obligations as a
signatory of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment); 18 U.S.C. § 2441
(prescribing criminal penalties under the United States Code for
“war crimes,” including “grave breaches” of the Geneva
Conventions). Courts also have undertaken the challenge of
evaluating whether particular conduct amounts to torture, war
crimes, or cruel, inhuman, or degrading treatment. See, e.g.,
United States v. Belfast, 611 F.3d 783, 828 (11th Cir. 2010)
30
(torture); Kadic, 70 F.3d at 243 (war crimes and torture);
Xuncax v. Gramajo, 886 F. Supp. 162, 187 (D. Mass. 1995)
(torture and cruel, inhuman, or degrading treatment). Likewise,
in his common law claims, Al Shimari has alleged familiar torts
based on long-standing common law principles.
Although the substantive law applicable to the present
claims may be unfamiliar and complicated in many respects, we
cannot conclude that we lack manageable standards for their
adjudication justifying invocation of the political question
doctrine. In reaching this conclusion, we agree with the
observation that courts may not “decline to resolve a
controversy within their traditional competence and proper
jurisdiction simply because the question is difficult, the
consequences weighty, or the potential real for conflict with
the policy preferences of the political branches.” Zivotofsky,
132 S. Ct. at 1432 (Sotomayor, J., concurring in part and
concurring in the judgment); cf. Hamdi, 542 U.S. at 536
(“Whatever power the United States Constitution envisions for
the Executive in its exchanges with other nations or with enemy
organizations in times of conflict, it most assuredly envisions
a role for all three branches when individual liberties are at
stake.”) (opinion of O’Connor, J.).
31
IV.
We recognize that the legal issues presented in this case
are indisputably complex, but we nevertheless cannot abdicate
our judicial role in such cases. Nor will we risk weakening
prohibitions under United States and international law against
torture and war crimes by questioning the justiciability of a
case merely because the case involves the need to define such
terms. The political question doctrine does not shield from
judicial review intentional acts by a government contractor that
were unlawful at the time they were committed.
Accordingly, we vacate the district court’s judgment, and
remand this case for further proceedings consistent with the
principles and instructions stated in this opinion.
VACATED AND REMANDED
32
FLOYD, Circuit Judge, concurring:
I am pleased to join in Judge Keenan’s fine opinion in this
case. I write separately to articulate my understanding of one
aspect of our holding. I agree that the “dichotomy between
lawful discretionary acts and unlawful activity will not always
be clear when applied to particular conduct.” Ante at 26. In
discussing this concept with the term “grey area,” ante at 26-
28, I do not understand the opinion to suggest that courts
cannot adjudicate close questions of lawfulness regarding
military affairs. Courts can adjudicate such questions without
offending the political question doctrine.
“The nonjusticiability of a political question is primarily
a function of the separation of powers” under our constitutional
scheme. Baker v. Carr, 369 U.S. 186, 210 (1962). That scheme
does not assign military decision making to the judiciary and,
as a consequence, questions of military policy are not for us to
resolve. But this does not mean that every case touching
military affairs is nonjusticiable. In separating the powers of
government, the Constitution assigns to the judiciary the power
to resolve “what the law is.” Marbury v. Madison, 5 U.S. 137,
177 (1803). Thus although the reasonableness of military
conduct may not be justiciable, the lawfulness of that conduct
assuredly is. Cf., e.g., Boumediene v. Bush, 553 U.S. 723
(2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
33
The precise contours of “what the law is” may be uncertain
until a court evaluates the lawfulness of specific conduct. For
example, despite repeated judicial application of torture laws,
see ante at 30, the precise legal scope of the prohibition on
torture is not perfectly defined. There is, in other words,
conduct for which the judiciary has yet to determine the
lawfulness: loosely, a grey area.
But this greyness does not render close torture cases
nonjusticiable merely because the alleged torturer was part of
the executive branch. While executive officers can declare the
military reasonableness of conduct amounting to torture, it is
beyond the power of even the President to declare such conduct
lawful. The same is true for any other applicable legal
prohibition. The fact that the President--let alone a
significantly inferior executive officer--opines that certain
conduct is lawful does not determine the actual lawfulness of
that conduct. The determination of specific violations of law
is constitutionally committed to the courts, even if that law
touches military affairs. Cf., e.g., Gilligan v. Morgan, 413
U.S. 1, 11-12 (1973).
Of course the fact that a claim is justiciable under the
political question doctrine says very little about that claim’s
procedural or substantive merits. Among other things, a claim
may be inadequately alleged, barred by other jurisdictional
34
doctrines, or ultimately not proven. “In instances in which
the lawfulness of . . . conduct was not settled at the time the
conduct occurred,” ante at 26, a defendant may be able to avoid
liability through the doctrine of qualified immunity, the ATS
requirement that conduct violate customary international law,
the requirement of Federal Rule of Civil Procedure 12 that a
claim be stated for which relief may be granted, or other
applicable law. See, e.g., Viet. Ass’n for Victims of Agent
Orange v. Dow Chem. Co., 517 F.3d 104, 123 (2d Cir. 2008)
(adjudicating and dismissing claims brought pursuant to the ATS
because the plaintiffs did not allege conduct proscribed by a
sufficiently universal customary international law norm).
However, the judiciary is well equipped to adjudicate such
issues without impermissibly answering political questions.
35