One of the stranger briefs filed by the Office of the Solicitor General during the Obama Administration was the brief filed in response to the Supreme Court’s request (“CVSG”) for the government’s views as to whether it should hear a tort suit arising out of allegations of torture at Abu Ghraib and other Iraqi detention facilities administered by U.S. contractors. In that case, Saleh v. Titan Corp., a divided panel of the D.C. Circuit had controversially held that state tort laws were “preempted” by the federal policy at the heart of the “combatant activities” exception to the Federal Tort Claims Act–even though that statute expressly exempts contractors from its scope. And although divided panels are nothing new for the D.C. Circuit, Judge Silberman’s majority opinion (joined by Judge Kavanaugh) produced an unusual (and unusually sharp) dissent from now-Chief Judge Garland. To make a long story short, the Obama Administration’s brief largely sided with Judge Garland, but nevertheless recommended a denial of certiorari because there was no circuit conflict, and because, in its view, other accountability mechanisms sufficed to hold private military contractors to the rule of law–albeit not in that case, hence the controversy surrounding the brief.
Today, just under three years after the Court took the SG’s advice and left the D.C. Circuit’s decision intact, it has once again called for the government to weigh in on whether it should hear a new pair of cases raising the question of whether private military contractors can be held liable for “battlefield” torts. In the process, it’s provided the Obama Administration with an unusual shot at redemption. Thus, although I wrote an exceedingly long post about these two cases (and why the Court should deny certiorari) last week over at Lawfare, the more interesting question now is whether the Obama Administration changes its tune.
In one sense, it shouldn’t: Just as was true in Saleh, there’s (still) no real circuit split on the question of whether/when contractors can be held liable. And unlike in Saleh, the underlying circuit-court decisions here are interlocutory (they both remanded to determine the extent of the government’s involvement in the challenged contractor decisionmaking), leaving any number of ways for the contractors to prevail on remand. And so it’s easy to think that the SG will once again recommend denial, albeit without taking too much of a position on the merits.
At the same time, a lot has happened since Saleh. Although the D.C. Circuit’s decision at the time was the first of its kind, there is now a bevy of case law applying various barriers to liability to preclude state tort litigation against private military contractors, in at least five circuits. One of those decisions goes so far as to apply the political question doctrine to categorically bar relief–apparently on the theory that all military judgments should be insulated from review. And even though the contractors lost in the Third and Fourth Circuits in the two cases in which the Court has now asked for the views of the SG, as I explained last week, there’s good reason to think that even those decisions are premised on–and otherwise reflect–unduly broad readings of these barriers to liability, originating with Saleh. And so if the Obama Administration continues to believe that Saleh was wrongly decided (as I hope it does), today’s CVSG provides it with an interesting opportunity to say so–and to support certiorari with an eye toward wiping the entire slate clean. (Of course, the Administration might also support certiorari in support of the contractors–but this strikes me as the least likely possibility, not just because of the timing and vehicle issues I noted last week, but also because of the potential inconsistencies that would create with respect to its position in Saleh. )
Don’t get me wrong–when the government finally responds to today’s request sometime late this year or early next, I suspect it will punt–and will fall back on the interlocutory nature of the appeal in counseling the Justices to deny review. That doesn’t mean the Justices will listen, or that they should. But whereas my post last week expressed my hope that the Justices would stay out of these cases out of a concern that they would validate a series of deeply flawed lower-court decisions (including the ones the contractors are now seeking to appeal), it’d be a different matter altogether if the government portrays them as an opportunity to correct a deeply problematic wrong-turn that it helped to facilitate in Saleh.