Suhail Al Shimari v. CACI Premier Technology, Inc.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cv-00827-GBL-JFA. [999952102]. [15-1831]
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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 ALZUBA’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,
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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
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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.
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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
Premier
Technology,
interrogation
2008,
they
services
filed
Inc.
for
this
(CACI),
the
civil
action
which
military
against
provided
at
the
time
CACI
contract
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 non4
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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
conclude
plaintiffs
that
failing
to
control
over
the
once
district
determine
any
again
of
court
whether
CACI’s
appeal.
Upon
the
erred
in
military
alleged
our
we
analysis
its
review,
by
exercised
conduct.
We
actual
hold
that
conduct by CACI employees that was unlawful when committed is
justiciable,
irrespective
whether
the actual control of the military.
that
conduct
occurred
under
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
accordance with the above holdings.
5
question
doctrine
in
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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.
United
States
Upon assuming control of the facility, the
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.
M.
Al Shimari III, 758 F.3d at 521 (citing Maj. Gen. Antonio
Taguba,
Police
Article
Brigade
16
15-6
(2004)
Investigation
(Taguba
of
the
Report)).
800th
Military
Department
of
Defense investigators concluded that CACI interrogators as well
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military
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personnel
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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
interrogators
military
alleged
entered
police
into
in
their
officials
a
complaint
conspiracy
to
commit
with
abusive
that
CACI
low-ranking
acts
on
the
plaintiffs, in order to “soften up” the detainees so that they
would
be
more
plaintiffs
range
of
responsive
further
during
alleged
mistreatment,
that
later
they
including
interrogations.
were
being
victims
of
beaten,
The
a
wide
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,
interrogators
the
plaintiffs
“instigated,
directed,
7
alleged
that
participated
CACI
in,
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encouraged, and aided and abetted conduct towards detainees that
clearly violated the Geneva Conventions, the Army Field Manual,
and
the
laws
plaintiffs,
of
most
the
of
United
these
States.”
acts
of
According
abuse
occurred
to
during
the
the
nighttime shift at the prison, in order to reduce the likelihood
that
nonparticipants
plaintiffs
contend
because
a
of
would
that
“command
learn
these
of
acts
vacuum”
at
this
of
Abu
conduct.
abuse
Ghraib,
were
The
possible
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,
governmental
because
actor,
CACI
and
was
a
opined
private
that
party
those
rather
claims
than
could
a
only
proceed under diversity or federal question jurisdiction.
On
appeal,
plaintiffs’
a
claims
panel
were
of
this
preempted
Court
by
concluded
federal
law
that
the
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
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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
of
The district court dismissed as barred by the statute
limitations
the
common
plaintiffs except Al Shimari.
law
claims
brought
by
all
the
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
plaintiffs’ claims expired.
discovery
on
the
merits
of
the
The same week, the Supreme Court
issued its decision in Kiobel v. Royal Dutch Petroleum Co., 133
S.
Ct.
1659
(2013),
which
imposed
extraterritorial application of the ATS.
1
certain
limitations
on
Relying on Kiobel, the
The court also dismissed with prejudice the plaintiffs’
claims against the parent company of CACI, CACI International,
and the conspiracy claims against individual CACI employees.
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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
concluded
that
from
the
that
decision,
district
court
in
had
Al
Shimari
jurisdiction
III
over
we
the
plaintiffs’ ATS claims under the Supreme Court’s reasoning in
Kiobel.
argued
758 F.3d 516 (4th Cir. 2014).
that
the
case
should
be
Although CACI also
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.
dismissing
the
Instead, we vacated the district court’s order
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,
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additional
following
the
discovery
reopened
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was
discovery
taken. 2
period,
As
the
noted
above,
district
court
dismissed all the plaintiffs’ claims under Federal Rule of Civil
Procedure
12(b)(1)
on
the
ground
justiciable political question.
that
they
presented
a
non-
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
political
question
complaint
as
doctrine.
non-justiciable
They
first
under
assert
that
the
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
formal interrogation process.
not
presented
with
a
that
occurred
outside
the
In the plaintiffs’ view, we are
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.
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The
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plaintiffs
also
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argue
require
the
courts
to
because
the
claims
challenge
that
evaluate
sensitive
the
that
the
district
court
claims
would
military
legality,
reasonableness, of CACI’s conduct.
assert
their
rather
not
judgments
than
the
Separately, the plaintiffs
erred
in
concluding
that
it
lacked manageable standards for resolving their claims.
In response, CACI contends that the district court properly
concluded
that
According
to
this
CACI,
case
the
presents
district
a
political
court’s
finding
question.
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
military judgments.
require
a
court
to
question
sensitive
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.
12
In re KBR, Inc., Burn Pit
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Litig., 744 F.3d 326, 333 (4th Cir. 2014).
plaintiffs’
pleadings
jurisdiction,
and
as
may
“mere
also
evidence”
consider
We may consider the
on
the
evidence
question
outside
of
the
pleadings without converting the motion to dismiss into a motion
for summary judgment.
The
district
Id.
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
matter
should
withhold
jurisdiction
and
a
determination
proceed
to
the
regarding
merits
of
subject
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).
doctrine
is
a
“narrow
exception”
to
the
judiciary’s
This
general
obligation to decide cases properly brought before the courts.
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Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012).
most
military
decisions
are
committed
exclusively
Although
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.
factors
ask
whether
there
is:
“(1)
a
textually
These
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
departments on one question.”
pronouncements
by
various
Burn Pit, 744 F.3d at 334 (citing
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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
government contractor in a negligence case.
Baker
factors
into
two
questions
liability
of
a
We distilled the
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
15
claim
against
a
government
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contractor based on the contractor’s activation of a generator
while the plaintiff was performing work on a wiring box.
F.3d
at
intended
403-04.
to
We
concluded
assert
as
a
that
defense
because
that
the
the
658
contractor
military
was
contributorily negligent, the district court would be forced to
“question
actual,
sensitive
judgments
made
by
the
Id. at 411-12 (internal quotation marks omitted).
military.”
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.
this
question
equipped
to
Taylor, 658 F.3d at 409-10.
particular
evaluate
attention
discretionary
because
courts
operational
We give
are
ill-
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.
Taylor
was
a
negligence
case
and
16
the
However, because
present
case
involves
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allegations
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of
intentional
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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
direct control of the military.
contractor
was
under
the
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
military’s
parallel
district
control
tracks,
court,
over
with
the
the
CACI
evidence
evidence
regarding
interrogators
demonstrating
the
proceeded
formal
on
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.
example,
located
in
in
September
Baghdad
and
October
issued
two
17
2003,
military
memoranda
For
leadership
establishing
the
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particularized
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rules
of
Pg: 18 of 35
engagement
for
interrogations
(IROEs)
conducted at Abu Ghraib, which authorized the use of several,
specific
techniques. 3
interrogation
In
addition,
all
interrogators were required to submit interrogation plans to the
military chain of command for advance approval.
specified
the
interrogators
interrogation
intended
to
methods
employ
and
that
These plans
the
included
particular
requests
for
separate approval of more aggressive tactics, if necessary.
Other evidence in the record, however, indicated that the
military
failed
to
exercise
actual
conducted by the CACI interrogators.
control
over
the
work
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
presence, particularly at night, was clear.” 4
of
command
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).
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a lack of an organizational chain of command presence and by a
lack of proper actions to establish standards and training” by
senior leadership.
indicates
that
Id.
CACI
Additional evidence in the record also
interrogators
personnel to mistreat detainees.
ordered
low-level
military
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
conduct occurred.
activities
during
which
the
challenged
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 3452, 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.
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of
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certain
interrogation
Pg: 20 of 35
methods,
but
failed
to
enforce
these prohibitions in practice.
Rather than addressing the issue of actual control, the
district
court
conclusions
began
based
on
and
the
ended
its
evidence
of
analysis
formal
by
drawing
control.
This
approach failed to address the full scope of review that the
district court needed to conduct on remand.
Shimari
III
that
the
record
was
We explained in Al
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.
satisfied
by
merely
The first Taylor factor is not
examining
the
directives
issued
by
the
military for conducting interrogation sessions, or by reviewing
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particular
interrogation
approved in advance.
Pg: 21 of 35
plans
that
the
military
command
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.
distinction.
The
district
court
failed
to
draw
this
important
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,
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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.
claims
In the court’s view, adjudicating the plaintiffs’
would
interrogation
impinge
on
military’s
and
strategies
the
rules
of
authority
to
engagement.
select
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
factor,
was
the
incomplete.
district
court
In
addressing
erred
in
the
second
failing
to
Taylor
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.
1282
(emphasis
established
omitted).
criminal
To
penalties
See Carmichael, 572 F.3d at
the
for
constituting torture and war crimes.
2441.
contrary,
Congress
commission
of
has
acts
See 18 U.S.C. §§ 2340A,
Therefore, to the extent that the plaintiffs’ claims rest
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allegations
of
unlawful
Pg: 23 of 35
conduct
in
violation
of
settled
international law or criminal law then applicable to the CACI
employees,
those
claims
fall
political question doctrine.
outside
the
protection
of
the
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
complied with applicable law.
whether
particular
conduct
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
personnel.”)
law
for
(emphasis
specific
added).
unlawful
conduct
Accordingly,
23
when
by
military
a
military
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contractor
acts
contrary
applicable
criminal
law,
to
the
Pg: 24 of 35
settled
international
separation
of
powers
law
or
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
engage
requires
judicial
a
function
court
of
only
to
“say[ing]
what
in
the
the
law
traditional
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
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political question doctrine.
1430;
see
also
concurring
applied
in
the
El-Shifa,
the
Zivotofsky, 132 S. Ct. at 1427,
607
judgment)
political
Pg: 25 of 35
F.3d
(“The
question
at
856
Supreme
doctrine
in
(Kavanaugh,
Court
a
has
case
J.,
never
involving
alleged statutory violations.”) (emphasis in original). 6
iv.
Applying the Taylor factors in accordance with the abovestated
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.
the
CACI
employees
that
were
Conversely, any acts of
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
6
at
the
time
the
conduct
Given 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 ElShifa, 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
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occurred. 7
Filed: 10/21/2016
Cf.
Japan
Pg: 26 of 35
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
categorization.
conduct
may
not
be
capable
of
such
clear
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.
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that was universally accepted at the time of the events giving
rise to the injuries alleged”).
international
law
or
The absence of clear norms of
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
committed,
whether
or
which
the
acts
alleged
plaintiffs
27
were
have
unlawful
stated
when
claims
to
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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.
be
required
Accordingly, on remand, the district court will
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.
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This “discriminating analysis,” see Baker, 369 U.S. at 211,
will
require
regarding
the
the
district
specific
court
conduct
to
to
examine
which
the
the
evidence
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
judicial
that
the
case
of
the
resolution
emphasized
that
international
its
law,
general
and
the
lacked
manageable
plaintiffs’
lack
of
standards
claims.
expertise
difficulty
of
The
in
for
court
applying
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
29
of
international
law
provide
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judicially
Filed: 10/21/2016
discoverable
Pg: 30 of 35
and
manageable
standards
adjudicating suits brought under the Alien Tort Act.”).
for
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
government has obligated itself.
2340A
(implementing
the
United
which
the
United
States
See, e.g., 18 U.S.C. §§ 2340States’
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,”
Conventions).
including
Courts
also
“grave
have
breaches”
undertaken
of
the
the
Geneva
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
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(torture);
Kadic,
Xuncax
Gramajo,
v.
70
F.3d
886
at
F.
Pg: 31 of 35
243
(war
crimes
Supp.
162,
187
and
(D.
torture);
Mass.
(torture and cruel, inhuman, or degrading treatment).
1995)
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
adjudication
doctrine.
that
justifying
In
lack
that
controversy
within
courts
simply
manageable
invocation
reaching
observation
jurisdiction
we
their
this
of
the
conclusion,
may
not
the
we
agree
to
competence
question
for
political
“decline
traditional
because
standards
is
their
question
with
resolve
and
the
a
proper
difficult,
the
consequences weighty, or the potential real for conflict with
the policy preferences of the political branches.”
132
S.
Ct.
concurring
at
in
1432
the
(Sotomayor,
judgment);
J.,
cf.
concurring
Hamdi,
542
Zivotofsky,
in
U.S.
part
and
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
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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
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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 2628,
I
do
cannot
not
understand
adjudicate
military affairs.
the
close
opinion
questions
to
of
suggest
that
lawfulness
courts
regarding
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
military affairs is nonjusticiable.
that
every
case
touching
In separating the powers of
government, the Constitution assigns to the judiciary the power
to resolve “what the law is.”
177
(1803).
Thus
although
Marbury v. Madison, 5 U.S. 137,
the
reasonableness
of
military
conduct may not be justiciable, the lawfulness of that conduct
assuredly
is.
Cf.,
e.g.,
Boumediene
v.
Bush,
(2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
33
553
U.S.
723
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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.
conduct
for
lawfulness:
which
But
the
judiciary
There is, in other words,
has
yet
to
determine
the
loosely, a grey area.
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
prohibition.
significantly
same
The
is
true
fact
inferior
for
that
executive
any
the
other
applicable
President--let
officer--opines
that
legal
alone
a
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.
may
be
inadequately
alleged,
Among other things, a claim
barred
34
by
other
jurisdictional
Appeal: 15-1831
Doc: 98
Filed: 10/21/2016
Pg: 35 of 35
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
applicable law.
Orange
v.
Dow
for
which
relief
may
be
granted,
or
other
See, e.g., Viet. Ass’n for Victims of Agent
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
However,
judiciary
the
customary
is
well
international
equipped
to
law
adjudicate
issues without impermissibly answering political questions.
35
norm).
such
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