Tomorrow morning, an (as-yet-unannounced) panel of the US Court of Appeals for the Fourth Circuit will hear the (third!) appeal in Al Shimari v. CACI Premier Technology, Inc., the one remaining lawsuit arising out of the torture of US detainees at Abu Ghraib.
In case you’ve lost track (but see the Center for Constitutional Rights’ helpful webpage), the first time the Fourth Circuit heard Al Shimari (on appeal from the district court’s denial of the defendants’ motion to dismiss), a three-judge panel held that the plaintiffs’ state-law tort claims against private military contractors for their role in the abuses were displaced by the controversial federal common law “battlefield preemption” doctrine, only to have the Court of Appeals go en banc to hold that there was no interlocutory appellate jurisdiction to reach that conclusion. On remand, the district court granted the defendants’ amended motion to dismiss after and in light of the Supreme Court’s holding in Kiobel, reasoned that the alleged torts did not sufficiently “touch and concern” the United States. The Fourth Circuit then reversed that holding, concluding that, even after Kiobel, the Alien Tort Statute does encompass claims against US military contractors for torts committed on US military bases overseas. Finally, last June, the district court granted the defendants’ motion to dismiss based upon two different prongs of the political question doctrine — via analysis that I sharply criticized at the time as a “perversion” of that doctrine (and that an amicus brief I co-authored in the Fourth Circuit suggests, “would … turn the political question doctrine on its head”).
I won’t rehash the criticisms of Judge Lee’s ruling here. But I do think it’s worth noting that, if the Court of Appeals affirms the district court — and holds that the political question doctrine categorically precludes these kinds of tort claims — I have to think such a ruling will be either en banc-worthy, cert.-worthy, or both. Suffice it to say, I very much doubt that this is the last time this case will be before the Fourth Circuit…