I’ve written extensively about the important and complex legal questions raised by state-law tort suits against private military contractors, many of which have arisen in the context of suits by victims of torture at Abu Ghraib. It’s against that backdrop that I was disappointed to read yesterday’s 28-page district court decision in al-Shimari v. CACI Premier Technology, Inc., which, on second remand from the Fourth Circuit, relied upon the political question doctrine to dismiss Abu Ghraib victims’ claims against the contractors allegedly responsible for their abuse. As I explain in the post that follows, there are two separate–but equally significant–flaws in Judge Gerald Bruce Lee’s opinion. And although one of those flaws is not remotely Judge Lee’s fault (but rather the result of the Fourth Circuit’s expansive approach to the political question doctrine in military contractor cases), I’m afraid that the second flaw is, and, if sustained on appeal, would dramatically expand the political question doctrine in ways that would be deeply troubling.

I.  The Background

The al-Shimari litigation has already weaved a tangled path through the federal courts. After the district court denied the defendants’ motion to dismiss in 2009, the Fourth Circuit initially reversed that denial in al-Shimari I, only to have the en banc Court of Appeals hold in al-Shimari II that there was no interlocutory appellate jurisdiction over the district court’s ruling. (Full disclosure: I helped draft, and signed, an amicus brief on the jurisdictional issue in al-Shimari II.) On remand, the district court held that the plaintiffs’ common-law claims were time-barred, and dismissed the plaintiffs’ Alien Tort Statute claims after and in light of the Supreme Court’s intervening decision in Kiobel v. Royal Dutch Petroleum, only to have the Fourth Circuit again reverse (in al-Shimari III), holding that, in light of the extent to which the claims ran against a U.S. corporation for torts allegedly committed on a U.S. military base, the plaintiffs’ claims were the rare example of a viable post-Kiobel extraterritorial ATS claim. Thus, the case was remanded to consider the remaining ground in the defendants’ motion to dismiss–that the suit is non-justiciable under the political question doctrine. (Yes, we’re still at the motion-to-dismiss stage.)

In yesterday’s ruling, Judge Lee again ruled that the suit should be dismissed, concluding that “Defendant was under the ‘plenary’ and ‘direct’ control of the military and that national defense interests are so ‘closely intertwined’ with the military decisions governing Defendant’s conduct, such that a decision on the merits would require this Court to question actual, sensitive judgments made by the military.” Thus, under the Fourth Circuit’s decision in Taylor v. KBR, the political question doctrine barred adjudication of the plaintiffs’ claims. And even if Taylor doesn’t govern, Judge Lee concluded, the plaintiffs’ claims “the Court would have to apply Iraqi law and to determine whether Plaintiffs were ‘innocent civilians,'” questions that lack judicially manageable standards.

II.  The Fourth Circuit’s Overbroad Political Question Jurisprudence

I’ve written before about Taylor‘s approach to the political question doctrine, which holds that a suit is non-justiciable if “the government contractor was under the ‘plenary’ or ‘direct’ control of the military;” and “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.'” In a nutshell, this application of the political question doctrine makes no sense. Here’s why:

  1. In general, the Supreme Court has repeatedly stressed (most recently in Zivotofsky I) that the political question doctrine is a narrow exception to the general responsibility of federal courts to resolve all disputes within their jurisdiction, and generally requires the presence of either a “textually demonstrable commitment” of the underlying question to a branch other than the judiciary or “judicially unmanageable standards” that prevent courts from resolving the dispute.
  2. As I wrote last year, “The notion that the Constitution’s text commits to the Executive Branch any and all decisions regarding military conduct is not only lacking for any textual support, but is utterly belied by the long litany of cases in which courts can and do review military conduct, including, e.g., military captures and detention.”
  3. To be sure, it is generally very difficult (if not impossible) to sue the military for torts arising out of military operations, but this is because of a series of statutory and doctrinal rules (such as the “combatant activities” exception to the Federal Tort Claims Act and the Supreme Court’s hostility to Bivens suits against the military), and not because the Constitution generally insulates military decisions from judicial review. Indeed, if Taylor is correct that the political question doctrine bars all suits that ask courts to second-guess the validity of military decisions, then none of these statutory and doctrinal rules would have been necessary–and the courts would lack the power to adjudicate the cases relating to military captures and detention cited above.

Of course, Judge Lee is a district judge who is bound to follow circuit precedent. And so the bulk of his analysis, which holds that the defendant was under the control of the military and that the underlying military decisions were intertwined with national security, seems, at least at first blush, to be driven by fealty to Taylor. It may be that there are grounds on which Taylor can still be distinguished, but the far larger problem is Taylor itself, and its completely wrongheaded understanding of the political question doctrine as applied to military decisions in general–and military contractors, in particular.

III.  Judge Lee’s Analysis of “Judicially Unmanageable Standards”

But Judge Lee went one step further, and held that “even were the Court to find jurisdiction on [Taylor] grounds, Plaintiffs’ claims could not be adjudicated because the case lacks judicially manageable standards.” It’s worth quoting each of Judge Lee’s explanations for why the plaintiffs’ torture, cruel, inhuman, or degrading treatment (CIDT), and war crimes claims are judicially unmanageable:

  1. Torture: “[T]he the lack of clarity as to the definition of torture during the relevant time period creates enough of [a] cloud of ambiguity to conclude that the court lacks judicially manageable standards to adjudicate the merits of Plaintiffs’ ATS torture claim.”
  2. CIDT: “Because Plaintiffs were alien detainees held abroad during a time when the Convention Against Torture did not apply to them, the Court finds that Plaintiffs are unable to state a claim for CIDT. Additionally, the definition of CIDT is so malleable that the Court would have a difficult time instructing a jury on the distinction between torture and CIDT. The Court’s doubt as to the lucidness of a CIDT claim supports a finding that there would be a lack of judicially manageable standards in adjudicating the merits of this case.”
  3. War Crimes: “While the elements of an ATS war crime claim may seem straightforward, deciding the issue of whether Plaintiffs were innocent civilians is anything but simple. A determination as to whether Plaintiffs were insurgents, innocent civilians, or even innocent insurgents would compel the Court to step into the shoes of the military and question its decisions. The Court cannot and does not wish to make this step. Accordingly, the Court finds that even Plaintiffs’ seemingly straightforward ATS war crime claim would force the Court to question sensitive military judgments and further lacks judicially manageable standards.”

I am a big fan of Judge Lee–who, in my experience, is the epitome of a thoughtful and fair-minded jurist. But even Homer nods. And I’m afraid that his analysis here simply jumps several sharks. On the torture claim, it does not follow that uncertainty concerning whether specific conduct was or was not torture makes a claim judicially unmanageable. Courts are confronted every day with difficult legal questions that can’t be clearly resolved by existing precedent or other interpretive tools. If those questions were judicially unmanageable, then we wouldn’t need courts at all–law could be handled by robots, since the only task of courts would be to choose which precedent applies.

And in this context, specifically, there are (and were, at the time of the events giving rise to this suit) specific statutory definitions of torture. Perhaps reasonable people can disagree over whether it was “clearly established” at the time of the Abu Ghraib abuses that specific conduct constituted “torture,” but that’s not remotely the same thing as holding, as Judge Lee does, that resolving whether specific conduct constituted “torture” is categorically beyond the ability of federal judges in all cases. That is to say, it may be that a lack of clarity means that the defendant ought to win on the merits, but that’s just not the same thing.

Unfortunately, Judge Lee’s analysis of the plaintiffs’ CIDT and war crimes claims makes even less sense. On CIDT, in addition to repeating the flawed analysis off the torture claim, Judge Lee concludes that it’s beyond the judicial power to decide whether specific conduct constituted CIDT immediately after holding (apparently within the judicial power) that the plaintiffs failed to state a CIDT claim.

And on the plaintiffs’ war crimes claim, Judge Lee’s conclusion–that “A determination as to whether Plaintiffs were insurgents, innocent civilians, or even innocent insurgents would compel the Court to step into the shoes of the military and question its decisions”–is baffling in two respects. First, Judge Lee never explains why the plaintiffs’ status matters–since many war crimes are defined without regard to whether the victims are enemy soldiers, civilians, or something in between (indeed, that’s the whole point of Common Article 3 of the Geneva Conventions). Thus, it’s not as if it’s legal to torture insurgents, but not civilians. Second, and in any event, even if the plaintiffs’ status does matter (which, for some war crimes–like attacking civilian targets–it would), there’s a rather long line of cases over the past decade (see, e.g.Hamdi and the D.C. Circuit’s entire post-Boumediene jurisprudence) in which federal courts have routinely adjudicated the status of military detainees, even though such adjudication often requires the court to “step into the shoes of the military and question its decisions.” Once again, I just don’t see how it is beyond judicial competence to ask whether a specific individual was an enemy combatant or a civilian.

That’s not to say that there’s no such thing as a legal question lacking a “judicially manageable standard.” The Supreme Court’s classic holding in this regard, Luther v. Borden, focuses on the difficulty of asking courts to assess when a state possesses a “Republican form of government” sufficient to satisfy Article IV. And other examples abound. But the notion that courts lack the ability to decide whether specific conduct rises to the level of three sets of offenses that are expressly codified in both domestic and international law constitutes an unjustifiably expansive (and analytically indefensible) application of the political question doctrine–and, again, one that is exceedingly difficult to reconcile with, among other Supreme Court decisions, Zivotofsky I.

IV.  What Happens Now?

It stands to reason that the plaintiffs will now head back to the Fourth Circuit. And since Judge Lee’s analysis was in the alternative, they’ll need to argue that both holdings were incorrect in order to keep the suit going. Given Taylor, that may require en banc review by the Fourth Circuit, or, failing that, taking the first part of Judge Lee’s political question analysis to the Supreme Court.

But one way or the other, (1) here’s hoping that the Fourth Circuit at the very least sees the flaws in Judge Lee’s reliance upon “judicially unmanageable standards”; and (2) it may only a matter of time before the Justices themselves are forced to confront the lower courts’ increasingly expansive use of the political question doctrine to insulate military contractors from tort liability. Hopefully, al-Shimari presents an opportunity for that reassessment to take place, not so that the plaintiffs can win, necessarily, but so that their underlying tort claims can be resolved on the merits.