Although it will likely be overtaken by the news set to come out of the Supreme Court later this morning, the Fourth Circuit has handed down a very big decision in the ongoing litigation over the Abu Ghraib torture scandal: In a 48-page opinion for a unanimous three-judge panel, Judge Keenan reversed the district court‘s dismissal of the suit, and held that the plaintiffs’ claims against private military contractors (PMCs) under the Alien Tort Statute are not foreclosed by the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, because the claims sufficiently “touch and concern” the United States, and are therefore shielded from Kiobel‘s holding that the ATS doesn’t apply to wholly “extraterritorial” claims. [Full disclosure: I’ve been involved in some of the amicus briefs in this case.]
The Fourth Circuit didn’t reach the PMCs’ other argument–that, even if the ATS claims can go forward after Kiobel, they’re barred by the political question doctrine. Instead, the panel ordered a remand for further factual development as to the political question defense (much like what the Third and Fourth Circuits had ordered in the PMC cases I wrote about a few weeks ago). And so it’s possible that al-Shimari will now become a “trailer” behind those cases–in which the Court earlier this month asked for the views of the Solicitor General. But regardless of what happens going forward on the political question defense, the ATS holding (if left undisturbed) is a very big ruling for the plaintiffs–and for the ATS–going forward.