Al Shimari v. Dugan et al

Filing 94

MEMORANDUM ORDER that Defts' 34 Motion to Dismiss Pltfs' Amended Complaint is GRANTED IN PART AND DENIED IN PART. Defts' Motion to Dismiss is GRANTED only to the extent that Pltfs' claims rely on ATS jurisdiction (see Order for details). Signed by District Judge Gerald Bruce Lee on 03/18/09. (pmil)

Al Shimari v. Dugan et al

Doc. 94

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION Suhail Najim Abdullah Al Shimari, et al.,

CACI Premier Technology, Inc. and CACI International, Inc.,

Dockets.Justia.com

therefore Statute original

preempted.

The fourth issue is whether

the Alien Tort

("ATS") provides jurisdiction civilian allege

a basis for this Court to exercise government

over tort claims against interrogators.

contractor Plaintiffs' against

The fifth issue is whether their claims superior. The

sufficient under

facts to support

Defendants

the theory of respondeat sufficiently

sixth issue is whether conspiratorial the individuals whether

Plaintiffs'

allege identify issue is

liability involved

where they fail to specifically in the conspiracy. sufficient The seventh

Plaintiffs'

have alleged

facts to show that

Defendants'

employees

caused Plaintiffs' Motion

injuries. to Dismiss on all that

The Court denies Defendant's grounds except the Court grants

the Motion

to the extent

Plaintiffs'

claims

rely upon ATS jurisdiction. because

The Court holds Defendants private are actors

that Plaintiffs' private

claims are justiciable

corporations

and civil tort claims against with the separation and the judiciary. are not entitled

for damages between

do not interfere branch

of powers Second, the at the both

the executive

Court finds that Defendants dismissal stage because

to immunity

discovery

is necessary

to determine with

the extent of Defendants' detainees Defendants Plaintiffs'

discretion

in interaction

and to weigh the costs and benefits immunity in this case. Third,

of granting

the Court holds that activities

claims are not preempted

by the combatant

exception discovery "combatant Fourth,

at this stage because to determine activities" whether within

the parties

must conduct here constitute

the interrogations the meaning

of the exception. claims are dismissed because tort to

the Court finds that Plaintiffs'

the extent

that they rely upon ATS jurisdiction government contractor

claims against

interrogators

are too recent

and too novel to satisfy jurisdiction. sufficiently the Amended Fifth, allege

the Sosa requirements

for ATS

the Court holds that Plaintiffs vicarious liability employees the because engaged

facts supporting

Complaint

states that Defendants'

in foreseeable interrogations. sufficiently alleging treatment

tortious Sixth,

conduct when conducting

the Court holds that Plaintiffs liability because facts abusive Seventh, alleges

allege

conspiratorial

the use of code words and efforts plausibly suggest conspiratorial Complaint

to conceal activity.

the Court holds that the Amended the direct Plaintiffs' employees involvement injuries

sufficiently

of Defendants'

employees

in causing

because a direct

Plaintiffs

point to specific and

who played

role in supervising conduct.

participating in turn below.

in the alleged

These issues are addressed

1

Much of the following information is pulled from Supreme Court and Fourth Circuit cases in order to provide a historical context for the present case. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280 (2008). It was later determined September 11 attacks.
2

that Saddam

Hussein

was not responsible

for the

Device

("lED"), led to the death of over 4000 coalition

troops

and counting. In addition the liberation oppressive to the hunt for WMDs, the invasion also sought

of the Iraqi people infamous

from Saddam Hussein's political dissidents. was

regime,

for imprisoning

One singularly

imposing

locus of this legendary located near Baghdad.

oppression Saddam

the Abu Ghraib prison, Hussein's prisons. subjected weapons

During

regime Abu Ghraib was one of the world's Some detainees to testing were held without charge

most notorious for decades and

in experimental

chemical

and biological into

programs.

As many as 40 detainees

were squeezed

cells measuring acre city within exception. conditions

approximately

170 square feet each.

In this 280-

a city, torture was the rule and not the occurred weekly, and vile living who

Executions

made life miserable

for the tens of thousands

lived and died there. Just before Iraqi regime, released the 2003 coalition invasion, the then-existing forces,

aiming

to create havoc for coalition held at Abu Ghraib prison the United

the detainees After

and other took

facilities.

the invasion The military

States military

over Abu Ghraib. prisoners: or suspected Provisional

used it to detain (2) security against

three types of accused

(1) common criminals, of committing Authority, and offenses

detainees

the Coalition detainees who might

(3) "high value"

possess

useful

intelligence

(insurgency

leaders,

for example) .

As it had in the past, the post-invasion population police included women and juveniles.

Abu Ghraib prison A U.S. Army military brigade were assigned suffered the U.S.

brigade

and a military

intelligence operation

to the prison.

The intelligence

at the prison prompting

from a severe shortage government civilian included to contract

of military with private

personnel,

corporations

to provide

interrogators L-3 Services

and interpreters.

These contractors and CACI

(formerly Titan Corporation)

International. Abu Ghraib prison time in late April modern Abu Ghraib sickening again received negative publicity, this

2004, when CBS aired an extended on 60 Minutes evidence II. The broadcast

report on the showed and

photographic

of U.S. soldiers

abusing

humiliating

Iraqi detainees stacked

at Abu Ghraib. in a pyramid; positioned

It showed photographs of two

of naked detainees naked and hooded performing

a photograph

detainees,

as though one was of a naked to his showed wires

oral sex on the other; and a photograph with a female U.S. soldier pointing sign. Another

male detainee genitalia a hooded attached

and giving a thumbs-up detainee standing

photograph

on a narrow box with electrical

to his hands.

A final photograph U.S. soldiers

showed a dead detainee were in several of the The abuses stunned

who had been badly beaten. photographs, laughing,

posing,

and gesturing.

the U.S. military, large.

public

officials

in general,

and the public

at

This case arises out of the detention, alleged abuse of four Iraqi citizens at Abu Ghraib between corresponding

interrogation as suspected

and enemy

detained

combatants

September

22, 2003, and November abuse Taha

1, 2003, a period scandal.

to the Abu Ghraib prison

Plaintiffs

are Suhail Najim Abdullah Sa'ad Hamza Hantoosh Between

Al Shimari,

Yaseen Arraq Rashid,

AI-Zuba'e

and Salah

Hasan Usaif Jasim AI-Ejaili. Plaintiffs were released

2004 and 2008, all four ever being

from Abu Ghraib without (Am. Compl.

charged with any crime.

~~ 25, 44, 53, and 63.)

On June 30, 2008, Plaintiffs Defendants CACI International, in Arlington,

filed this action against corporation with

Inc., a Delaware Virginia,

its headquarters Technology, Arlington,

and CACI Premier located in

Inc., its wholly-owned Virginia. services Defendants

subsidiary

are corporations

that provided in

interrogation question. civilian brigade

at Abu Ghraib during

the period

Beginning interrogators

in September

2003, Defendants

provided intelligence allege food

for the U.S. Army's military

assigned

to the Abu Ghraib prison. committed various

Plaintiffs

that Defendants deprivation, extreme

acts of abuse,

including

beatings,

electric

shocks,

sensory deprivation, shooting and mock

temperatures,

death threats,

oxygen deprivation, bones,

prisoners

in the head with taser guns, breaking

5) 6)

Conspiracy to treat Plaintiffs inhuman or degrading manner; Aiding and abetting Treatment; cruel,

in a cruel,

inhuman and degrading

15)

Aiding and abetting batteries;

sexual assaults

and

emotional 19) 20) Defendants Negligent Negligent

distress; hiring and supervision; of emotional and distress.

infliction

now move for dismissal

of all claims.

A.

Standard ~

of Review Questions Under Rule 12(b) (1) of an issue before jurisdiction See Republican (4th Cir. 1992). question under Party Where it a

Nonjusticiable

A party challenging court questions

the justiciability subject matter 12(b) (1).

that court's

Federal Rule of Civil Procedure of N.C. v. Martin, a court determines must dismiss not accept to dismiss 12(b) (1). 1986)

980 F.2d 943, 949 n.13 that a nonjusticiable

is presented

the action.

FED. R. Cry. P. 12(h) (3). as true for purposes jurisdiction

A court need of a motion under (4th Cir.

factual

allegations

for lack of subject matter Thigpen v. United States, to its treatment

800 F.2d 393, 396 of disputed

("In contrast

issues of fact

when considering

a Rule 12(b) (6) motion, may resolve

a court asked to dismiss to

for lack of jurisdiction determine the proper

factual disputes

disposition

of the motion.").

The plaintiff

bears the burden challenges Pres. Ass'n 453, 459

of persuasion

when a motion

to dismiss See Piney Run

a court's v. County

subject matter

jurisdiction.

Comm'rs of Carroll

County, MD, 523 F.3d

(4th Cir. 2008).

~

Failure

to State a Claim Under Rule 12(b) (6) 12(b) (6) motion should be by in the

A Federal Rule of Civil Procedure granted showing unless an adequately

stated claim is "supported with the allegations

any set of facts consistent Bell Atlantic

complaint.H 1969

Corp. v. Twombly,

127 S. Ct. 1955, a Rule

(2007); see FED. R. Crv. P. 12(b) (6). the Court must construe to the plaintiff,

In considering the complaint

12(b) (6) motion,

in the as a

light most favorable whole,

read the complaint as true.

and take the facts asserted 7 F.3d 1130, 1134

therein

Mylan Lab., In addition

Inc. v. Matkari, to the complaint, incorporated

(4th Cir. 1993).

the court may also examine by reference, notice.H

"documents and matters of

into the complaint

which a court may take jUdicial

Tellabs,

Inc. v. Makor

allegations

regarding

the legal effect of the facts allegedH v. Havel, 43 F.3d 918, 921 of the complaint (4th Cir. is to

need

not be accepted. 1995). provide Because

Labram

the central purpose

the defendant

"fair notice of what the plaintiff's the plaintiff's

claim legal to

is and the grounds allegations

upon which it rests,H

must be supported to prepare

by some factual basis a fair response.

sufficient

allow the defendant Gibson,

Conley v.

355 U.S. 41, 47

(1957).

1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; 2) a lack of judicially standards for resolving 3) the impossibility policy determination discretion; discoverable it; and manageable

of deciding without an initial of a kind clearly for non-judicial

4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; 5) an unusual need for unquestioning political decision already made; or adherence to a

6)the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

a.

Constitutional commitment political branch

to a coordinate

could not be carried personnel subjected because

out by on-site military

and contracted were

it is quite unlikely

that these personnel supervision

to the persistent suggests.

and pervasive

that CACI accept

necessarily its premise monitored

CACI would have the Court blindly

that the activities

at Abu Ghraib were so heavily and approval of high-

that, but for the involvement officials,

level government occurred. prison result,

the atrocities

could not have is that Abu Ghraib As a

The problem

with CACI's premise miles

sits over six thousand it is very unlikely

from the Pentagon.

that the President and government

of the United had the type that

States or his top military of regular Defendants insight suggest.

officials

into the daily activities Likewise, the military

at Abu Ghraib commanders

in theater in

were, and still are, focused on conducting both Iraq and Afghanistan. Court to presume resources

military

operations for this

It would be unrealistic commanders

that theater

had the time or at the in

to stay a vigilant fighting

eye on the day to day activities Consequently, engaged

Abu Ghraib while

a war on two fronts.

Court finds it plausible conduct that higher-ups

that the on site personnel were wholly unaware of.

If that be the that a out

case, it is completely conspiracy

within

the realm of possibility complain

of the type Plaintiffs

of was carried

3

Because this premise forms the foundation of CACI's constitutional commitment argument, its failure thereby destroys CACI's argument that follows because, as noted by this Court, it is entirely possible that a conspiracy of this type could be carried out by low level officials. As such, this Court could analyze this low-level conspiracy without once calling the executive's However, for the sake of completeness, interrogation policies into question. the Court will proceed to evaluate CACI's position in its entirety.

idea of holding

the United alleged

States

liable in tort, finding

that

"[t]he negligence question

in this case necessarily most important Id. at 275. procedures

calls into and plans for

the government's

the defense of powers Circuit

of the country."

Revealing

separation

concerns

as the reason

for its decision,

the Fourth resolution

held that the claim was nonjusticiable in the court security hostile

because

of the claim would result into the realm of national with respect to potentially

"interjecting

tort law judgments

and second-guessing aircraft

that are properly Id.

left to the other constituent The present two reasons. the government identifying

branches

of government."

case is clearly

distinguishable

from Tiffany for party, not

First,

the defendant

here is a private

itself, which

is a key distinction

when in both is

separation

of powers problems. the political

As the courts doctrine

Baker and Tiffany noted, rooted at 217 in separation

question

of powers principles.

See Baker,

369 U.S. to

("several formulations

which vary slightly

according a

the settings political identify Tiffany,

in which the questions although

arise may describe

question,

each has one or more elements of separation of powers

which

it as essentially 931 F.2d at 276

a function ("Separation

of powers."); to

is a doctrine

which the courts must adhere even in the absence statutory command. between That doctrine the judiciary requires

of an explicit the of

that we examine

relationship

and the coordinate

branches

the federal power.") potential

government

cognizant

of the limits upon judicial At no time is the more apparent Here, than

(internal citations for a separation

omitted).

of powers problem

when the federal government however, Plaintiffs' engaged action

is the named defendant. is against

CACI, a private merely for self in a case the

corporation profit.

in interrogating separation

prisoners

Certainly,

of powers party's

is a concern

like Tiffany, government conducted present

where a private

action

is against

and its allegation its affairs.

is that the government

improperly

But the government Complaint

is not a party to the

case.

The Amended

does not attack government that a private corporation

policies. conducted

Instead,

Plaintiffs'

allege

its business

in derogation

of United

States and justiciable.

international Second, separation

law, an allegation the conduct

that is entirely

complained

of in Tiffany triggered the conduct as fighter context. was intercepts There, the are

of powers

problems

because

inextricable non-existent plaintiff

from the executive outside

branch,

of the governmental

argued

that the United

States was negligent aircraft.

in the way The

in which it intercepted conduct the plaintiff

Mr. Tiffany's

Id. at 275. trained and

complained

of was created,

regulated defense evaluate

only in order to serve the government's As a result, because

national

function.

there was no way to independently

the conduct

the conduct did not exist

independent such a claim procedures 275.

of the government.

As noted by the Fourth Circuit, the government's most important Id. at

"calls into question

and plans

for the defense

of the country."

Here, however, allege

torture has an existence

all its own.

Plaintiffs' stripped extreme 11-63.)

that they were, among other things, beaten, of food, water and sleep, subjected and shocked. (Am. Compl. ~~ to

naked,

deprived

temperatures, Unlike

threatened

the fighter

intercept

in Tiffany,

this conduct private

does not depend on the government actors can and do commit similar of powers

for its existence; acts on a regular

basis. is

Separation already

is not implicated

where the conduct

separate

and distinct

from the government. involves behalf conducting courts

The fact that CACI's business interrogations on the government's

is incidental; government

can and do entertain for the manner

civil suits against

contractors See

in which they carry out government

business.

Boyle v. United Tech. co~p, 487 U.S. 500 wrongful death claim against government

(1988) (estate's helicopter manufacturer

justiciable);

see also Ibrahim

v. Titan Corp., 391 F. Supp. 2d 10

(D.D.C. 2005) and Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006) interrogators (Iraqis' civil suits against and interpreters "no merit government contractor where

posed no political

question

the court found defense. .").

in the defendants' is regularly

political entrusted

question with the

The judiciary

responsibility

of resolving

this type of dispute. of powers concerns

Hence,

the

Court finds that separation by the Court's evaluation

are not triggered

of CACI's

conduct

in this case. claims are injuries CACI

Alternatively, nonjusticiable

Defendants

argue that Plaintiffs'

because

the issue of recovery

for wartime branches.

is constitutionally insists present

committed

to the political

that this Court lacks the authority action because reparations

to resolve

the barred agreement

claims are generally or a diplomatic

absent an express with a provision

reparations expressly

agreement

allowing

such claims.

CACI cites no Four of the cited from the claims

cases that square with the facts of this case. cases involve plaintiffs offending against government seeking recovery

directly

and the fifth involves City.

equitable

the State of the Vatican recovery

The only case CACI cites party is over two hundred

that involves

from a private a preemption debt.

years old, is actually addresses 199, 230 recovery

case, and only tangentially See Ware v. Hylton, subject to collect 3 U.S.

of pre-war

(1796) (allowing a British citizen because

a pre-war

debt from an American debts to the British providing

despite

a state law discharging of a peace ignores treaty the long

of the supremacy

for debt recovery).

CACI conveniently

line of cases where private actions 677 for wartime

plaintiffs

were allowed

to bring tort 175 U.S. during

injuries.

See The Paquete Habana,

(1900) (damages imposed

for seizure of fishing vessels

b.

Judicially discoverable and manageable standards for resolution

4

CACI seems to suggest that the Court should feel comfortable dismissing Plaintiffs' claims on political question grounds because, after all, Plaintiffs may still have administrative remedies available to them. However, as the Supreme Court stressed in Baker, "courts cannot reject as 'no law suit' a bona fide controversy. . 369 U.S. at 217. Hence, this Court will refrain from doing so here.

most notably,

CACI itself brought

a civil suit involving In CACI Premier

most of

the same facts present Inc. v. Rhodes

in this case.

Technology, against a

& Piquant, LLC, CACI alleged defamation
for statements she made blaming

radio personality atrocities

CACI for the (E.D. Va.

at Abu Ghraib. 536 F.3d 280 summary

2006 U.S. Dist. LEXIS 96057 (4th Cir. 2008).

2006), aff'd, Court granted

In that case, this but

judgment examining

in favor of the defendant, the briefs, Id. exhibits, and

only after carefully affidavits submitted

by both parties.

The Court finds it

ironic that CACI argues

that this case is clouded by the "fog of discovery

war," yet CACI saw only clear skies when it conducted to develop its defamation case.

Second, other courts

this Court also finds instructive that have entertained similar

the number

of

cases and conducted facts. In Ibrahim v.

some level of discovery Titan Corporation, in considering manageability government to dismiss anticipation

on these or similar

391 F. Supp. 2d 10 (D.D.C. 2005), the court, to dismiss, noted the potential for

a motion problems

in the future but concluded . and

that "[t]he

is not a party otherwise

[the court is] not prepared

valid claims at this early stage in that mayor may not arise." Id. at 14.

of obstacles

The court went on to allow discovery the defendants the plaintiffs' were "essentially

as to the issue of whether in all but name" and See id. at 18-19.

soldiers

claims

consequently

preempted.

Likewise,

in Saleh v. Titan Corporation,

a case "virtually claims, for

indistinguishable" the court permitted the plaintiffs' the plaintiffs information

from Ibrahim but for added conspiracy discovery as to the evidentiary

support

claims,

and the exact nature of the information claims "upon

relied upon where they asserted

and belief."

436 F. Supp. 2d 55, 59 (D.D.C. 2006) in these cases case the

The completion

of at least some level of discovery the position

leads the Court to reject implicates political manageability question

that the present to trigger

issues severe enough

doctrine. witnesses of

Third, have already

the Court finds that many of the potential testified about their actions

and the actions

others during involved

the courts martial

of several military Several

personnel

in the events at Abu Ghraib. in the atrocities Plaintiffs expressly by military

of the soldiers of

who participated their crimes. testimony

were tried and convicted

refer to "post conviction co-conspirators" suggesting Johnson

and statements

that "CACI employees directed

Steven Stefanowicz.

. and Daniel

and caused

some of the most egregious ~ 1.)

torture and of

abuse at Abu Ghraib." eyewitness testimony

(Am. Compl.

This availability

further hurts CACI's position. made clear to this Court that they do not Intelligence Agency's "Ghost for

Fourth,

Plaintiffs

intend to delve into the Central Detainee" program.

Given that assurance,

there is no reason

the Court to suspect program

that classified

documents

regarding case.

that Due to

will be sought or necessary

to Plaintiffs'

the number of cases, both criminal been brought assurance program, challenging

and civil, that have already and Plaintiffs'

the events at Abu Ghraib

that they do not plan to challenge the Court rejects involves classified CACI's argument

the "Ghost Detainee"

that this case documents The The of CACI. that

necessarily are either government government

the evaluation or unavailable

of numerous

to the Court. in this case.

has not sought to intervene has not asserted

any state secret on behalf whether

If and when the time comes to consider information is necessary

classified and the

in this case, the government

Court will address

that issue. standards governing this

The Court finds that the judicial case are both manageable many of the documents action have already courts. contract

and discoverable.

As mentioned

above,

likely to form the basis of the present and evaluated by this and other

been obtained

In addition,

the Court finds that CACI's government instructive in evaluating whether with

is likely to be highly the appropriate

CACI exercised Abu Ghraib details outlines

level of care in its dealings that the contract

detainees.

The Court suspects

CACI's

responsibilities

in conducting

the interrogations, are

the applicable

laws and rules that CACI personnel

bound by, and sets further restrictions

on the type of conduct

c.

Lack of respect government

due coordinate

branches

of

d.

Impossibility of deciding policy determination

without non-judicial

What sets us apart from our enemies in this fight is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with the dignity and respect. While we are warriors, we are also all human beings.

e.

Need for adherence already made

to a political

decision

f.

Potential for embarrassment pronouncements

from multifarious

branches

of government. it is true that the events at Abu Ghraib pose an to this country, surrounding it is the misconduct that misconduct alleged and the

While

embarrassment

not the litigation embarrassment. embarrassment on political

that creates for

This Court finds that the only potential would be if the Court declined question grounds. Consequently,

to hear these claims the Court holds and are

that Plaintiffs' therefore ~

claims pose no political

question

justiciable. Derivative absolute official immunity question doctrine does

Having not deprive address absolute

established

that the political

this Court of jurisdiction, of whether

the Court must now of derivative claims. Defendants

the question official

the doctrine

immunity

bars Plaintiffs'

argue that they are immune for two reasons. argue they are immune because function within they performed

First, Defendants a discretionary contract. Second, of

the scope of their government

Defendants immunity ignoring

argue they are immune because interrogators

the public benefit the cost of claims go

for contractor a potential

outweighs

injustice

should Plaintiffs'

unremedied because

and unaddressed.

The Court rejects both arguments the scope of Defendants' it afforded

the Court cannot determine contract, in dealing

government Defendants

the amount of discretion with detainees,

or the costs and benefits

of recognizing

immunity

in this case without has taken place. Defendants

examining

a complete

record after discovery address function

The Court will first performed a discretionary followed in

the issue of whether within

the scope of their government of the costs and benefits

contract,

by an analysis this case.

of granting

immunity

The law of governmental developed

absolute

immunity

has largely

as a part of the federal common government distraction functions

law to protect

discretionary debilitating

from the potentially private lawsuits. See, by

of defending

e.g., Westfall 28 U.S.C.

v. Erwin, 484 U.S. 292, 295 (2006); Barr v. Matteo,

(1988), superseded

§ 2679

360 U.S. 564, 569-73 principles is "to serve [are] not public Another is by Butz v.

(1959) (plurality opinion). underlying the public deterred service." to protect the doctrine

There are various

of immunity.

One principle

good or to ensure

that talented

candidates

by the threat of damages

suits for entering (1992).

Wyatt v. Cole, 504 U.S. 158, 167 the public from the timidity exercise

of public

officials

"encouraging v. Economou, Forsyth,

the vigorous

of official

authority."

438 U.S. 478, 506

(1978); see also Mitchell of

472 U.S. 511, 526 of discretionary

(1985) (listing prevention action) . the Supreme

inhibition

In Barr and Westfall, immunity

Court recognized

absolute

from state tort liability

for federal officials

exercising employment.

discretion

while acting within

the scope of their of actors

The Supreme

Court made clear that the purpose upon government

such immunity

was not to bestow a benefit gain, but instead

for their private interest

to protect without

the government's the threatened

in conducting

its operations

disruption

of civil litigation.

See Barr, 360 U.S. at 572-73 of exalted office,

("The privilege

is not a badge or emolument of a policy designed

but an expression functioning

to aid in the effective of whether to

of government."). is closely

Thus, the question

grant immunity

connected

to the policies

that would be

served by doing so. The Fourth Circuit immunity to government extended the doctrine in Mangold of absolute v. Analytic

contractors

granted

derivative

immunity

to a government

contractor

for

statements

it made in response regarding

to the inquiries practices

of Air Force

investigators Id. at 1450. discussed protecting

improper

by Air Force officers.

The Court found that the Westfall principles combined with the same interest that justifies

above,

witnesses

in government-sponsored

investigations,

Mangold

means

that in some circumstances, while performing

government

contractors

are immune from liability contracts. Id.

their government

But courts recognize absolute immunity

that protecting costs.

government Immunity

actors with a

is not without

undermines

core belief

of American

jurisdprudence,

that individuals See Westfall, accountable

must be 484 U.S. while

held accountable at 295.

for their wrongful in holding functions

acts.

This interest governmental

individuals

protecting lawsuits extent

from distracting

private "only to the immunity

led to a balancing

test, affording obtained

immunity

that the public [the] costs."

benefits Mangold,

by granting

outweigh Westfall, government

77 F.3d at 1447

(citing ("Protecting has its costs,

484 U.S. at 296 n.3); see id. at 1446-47 actors with absolute immunity, however,

since illegal and even offensive a. Discretionary function

conduct may go unredressed."). and scope of contract their the

Defendants interrogations

first argue that they are immune because constituted a discretionary contract. function

within

scope of their government Westfall test, "immunity

Under the first prong of the [attaches]

from state law tort liability discretion Mangold,

for federal officials

exercising

while acting within

the scope of their employment." (emphasis supplied).

77 F.3d at 1446 information had at

The Court has insufficient to conclude

this stage in the litigation either the authority

that Defendants

to exercise

discretion

in how they conducted

interrogations government

or that they did so within The Court addresses

the scope of their each element in turn

contract.

i. Defendants question

discretionary

function the

argue that the Court need not even address because Mangold held a contractor

of discretion

immune

from suit even though the function performed-responding discretionary. broader Mangold

that the contractor investigation-was however, misses not the When

to a government

Defendants'

assertion,

rule to which Mangold extended government

represents

an exception.

employee

immunity reference

to government to the test

contractors, established

it did so with explicit in Barr and Westfall.

Mangold,

77 F.3d at 1448 immunity should

(couching the issue as whether be extended).

Barr and Westfall clearly

Barr and Westfall function

looked to the presence the propriety of a

of a discretionary extending narrow immunity.

to determine

Id. at 1446.

Mangold

then addressed immunity

issue:

"[w]hether

Barr and Westfall

also extends contractors

to persons

in the private in official Id. at 1447.

sector who are government investigations By answering repudiate

participating contracts." Mangold

of government in the affirmative, function

did not generally

the discretionary

requirement

of Barr and Westfall

in the contractor

context but

instead recognized immunity

a limited expansion

of the rule, extending and

"only insofar as necessary

to shield statements

5 Defendants argue in the alternative that the FTCA's combatant activities exception, 28 U.S.C. § 2860(j), creates an alternate basis for granting derivative absolute official immunity. The Court is unpersuaded because Defendants offer no precedent supporting this assertion. Moreover, the question of whether the combatant activities exception to the FTCA supports finding of immunity is distinct from the question of whether it supports a The Court addresses this second question in Section finding of preemption. below.

a 3,

their contract.

Although

the Court agrees with Defendants

that strip

the mere allegation Defendants entitled, proceedings Defendants absolute

of serious abuse does not automatically to which they might otherwise be

of any immunity

the Court is unpersuaded

at this early stage of the factual record that

and in light of a very limited performed a discretionary

function

entitling

them to

immunity. however, that Defendants will fall within for

The Court doubts, the discretionary discovery because

function

category

even after a chance

the facts of this case are wholly facts. The wartime from the investigations

distinguishable interrogations referenced of whether

from the Mangold

in this case are different because

in Mangold

in that case, there was no question techniques used by the Air Force the contractor's responses to

the investigative

were lawful; responses

the only question

was whether

were protected.

Id. at 1448. whether

Moreover, an officer

Air Force inquiries inappropriately

surrounding

pressured

a private

engineering

and analysis to

firm

to hire a family friend are not immediately Defendants' allegedly abusive interrogations

analogous

of detainees a question

at Abu

Ghraib prison. the government performing

Indeed, actually

this case presents delegated

of whether

to Defendants

the task of based is

allegedly record

abusive

conduct. before

For these reasons, the Court, Mangold

on the limited

currently

entirely

distinguishable

from this case. may have were

Furthermore, problems

the Court finds that Defendants showing

after discovery

that their actions allegations

discretionary violated

in light of Plaintiffs'

that Defendants contract. a

laws, regulations contractor function

and Defendants'

government perform

A government discretionary contractor.

does not automatically simply by virtue

of being a government 499

See United States

v. Gaubert,

u.s.

315, 322 are not

(1991) (observing discretionary specifically follow,' adhere

that a federal employee's

actions

"if a 'federal statute, prescribes

regulation,

or policy to

a course of action

for an employee

because

'the employee

has no rightful

option but to

to the directive.'") (citations omitted) i see also Perkins 55 F.3d 910, 914 (4th Cir. 1995) a mandatory function ("Obviously,

v. United States, failure to perform

is not a discretionary (4th Cir.

function") i Baum v. united States, 1993) ("[I]f the plaintiff to a mandatory

986 F.2d 716, 720

can show that the actor in fact failed standard then the claim does not fall Here Plaintiffs

to so adhere within allege

the discretionary that Defendants which

function violated

exception.").

laws and their government that Defendants failed to that

contract, adhere

is the same as claiming standard.

to a mandatory

The Court finds it doubtful

discovery

will show that Defendants' allegations

actions were discretionary of legal and contractual

in light of Plaintiffs'

violations. ii. Defendants conduct scope of government contract claims arise out of

argue that Plaintiffs' occurred

that allegedly

in the course of Defendants' The Court is expect the Court to is not

interrogation completely accept before

duties at Abu Ghraib prison. as to how Defendants argument

bewildered

this scope of contract

when the contract

the Court on this motion. will answer before the Court can to immunity. will shed

There are many ways in which discovery unresolved reasonably questions determine that must be answered whether Defendants

are entitled

For example,

Defendants'

contract

with the government limitations

much light on the responsibilities, that Defendants In addition,

and expectations contractors. with

were bound to honor as government of Defendants'

consideration

course of dealing

the government occurred

may reveal whether

deviations

from the contract or ratified.

and, if so, whether

they were tolerated

The scope of Defendants' requires discovery.

contract

is thus an open issue that

Furthermore, Defendants

if Plaintiffs'

allegations

are true, then if their actions violated United

are not entitled Plaintiffs

to absolute allege

immunity

were wrongful.

that Defendants policies

states and international

law, military

and procedures,

94, 108.) entitled because

If these allegations to dismissal

are true, then Defendants absolute immunity

are not

on derivative

grounds

Defendants'

alleged

abuse of Plaintiffs See Mangold,

was not within

the scope of their contract. (noting that Barr and Westfall officials "acting within

77 F.3d at 1446 to federal

grant immunity

the scope of their employment.") and on this limited record, that the conduct function the Court

For these reasons,

lacks a basis for finding arises

in the Complaint the scope of

out of a discretionary government

within

Defendants' contract

contract.

Discovery

as to Defendants' is necessary

and course of dealings whether Defendants benefit

with the government

to determine b.

meet these requirements. of immunity alleged abuse of function within

Cost v. public arguendo,

Assuming, Plaintiffs

that Defendants'

constituted

a discretionary contract,

government

the scope of Defendants' whether costs. the public Defendants interest activities

the Court must now determine immunity outweigh and to perform of the

benefits

of granting

argue that the public in enabling

has an urgent contractors

compelling combatant tort law. available interest

government

in a war zone free from the interference record currently

The Court finds that the limited does not support outweighs the conclusion

that the public immunity in this case.

the costs of granting

As discussed holding individual

above,

the Court must balance accountable

the interest

in in

wrongdoers

against

the interest

protecting

the government

from distracting

litigation.

Mangold,

77 F.3d at 1447. the Supreme approach Westfall, warranted

From this Court's perspective,

it is clear that

Court expected

courts to adopt a case-by-case As the Supreme Court explained immunity is to which in

to this analysis. "the inquiry

into whether

absolute

in a particular function

context depends

on the degree

the official prospective supplied). contractors government immunity authority

would suffer under the threat of Westfall, 484 U.S. at 296 n.3 (emphasis

litigation." Here Defendants

ask this Court to do for government Court was unwilling to do for of

what the Supreme officials:

adopt a per se rule that the benefits outweigh the costs. Indeed, Defendants cite no

necessarily

for this proposition. the costs,

if the public

benefits would

always outweighed be meaningless. public interest

the balancing

test requirement to weigh the against

The Court finds it appropriate in granting immunity

to Defendants

the

costs of doing so. Defendants absolute urge that the public interest in recognizing in enabling in a war

immunity

here is the "compelling to perform

interest

government

contractors

combatant

activities

contractor Further,

interrogations

are in fact combatant activities the public's

activities. activities, in

even if Defendants' whether

are combatant interest

the Court questions recognizing immunity

is stronger

for these types of activities The public

or in allowing the

suits like this to go forward. abuse of detainees Photographs leading magazine

outcry against

at Abu Ghraib was strong and compelling. abuse scarred of numerous the national conscience, and

of detainee

to the publication articles

books, newspaper

and at least one congressional currently before

investigation.

On the limited

record

the Court, the Court interest in recognizing

cannot say that the public immunity Discovery

has a stronger

than it does in allowing is needed to address

Plaintiffs'

suit to proceed. contract,

the scope of Defendants' statutes and

their actual regulations. the public

conduct, Absent

and the applicable this information,

the Court cannot outweighs

say that

interest

in granting

immunity

the costs. even for cite in which a

Defendants

also argue that immunity conduct.

is available

illegal and offensive Medina

For example,

Defendants

v. United states,

259 F.3d 220

(4th Cir. 2001),

former diplomat agents

sued Immigration battery

and Naturalization

Service out of his

for assault,

and other torts arising

agency was immune exception

from suit under the discretionary the case implicated

function public policy.

to the FTCA because

Id. at 229. F.3d 910 worker

Defendants

also cite Perkins

v. United States, in which a

55

(4th Cir. 1995), a wrongful

death action

suffocated

in a mine attempting Revenue Service

to remove equipment order.

to 55 the

satisfy an Internal F.3d at 912. There,

("IRS") seizure

the court held that immunity

protected

IRS agents because tortious, 915.

the acts they committed, to the assessment

even if illegal or Id. at it

were related

of a tax debt.

The Court does not disagree shield. But Medina

that where immunity and Perkins because

applies,

is a powerful

do not support a

finding of immunity FTCA suits against contractors.

for Defendants United

those cases involved officials, not

States government

Medina,

259 F.3d at 220; Perkins,

55 F.3d at 910. here by the

A public benefits because

analysis

under the FTCA is inapposite suit against the government;

the FTCA authorizes

contrast, presumption

in cases where only private is that public policy of conflicts

parties

are involved, access

favors granting through

to the

courts and resolution system.

the adversarial

Even if the policies the context

in Medina

and Perkins

are evaluated The is

in

of this case, they do not help Defendants. allowing FTCA suits against See Dalehite government

policy behind essentially

actors

accountability.

v. United States,
by Indian

246

U.S. 15, 27 (1953), rev'd in part on other grounds Towing Co. v. United States, 350 U.S. 61 (1955).

On the other

hand, Defendants' immunity

strongest

policy

arguments

for granting Here, the

in this case are efficiency

and flexibility.

immense pubic outcry illustrates

in the wake of the Abu Ghraib strong interest

scandal even

the public's

in accountability valued.

though efficiency Defendants

and flexibility

are otherwise

argue that allowing and government decisions

suits such as Plaintiffs' officials to justify and

will require military explain their wartime

in court.

As addressed whether a private or to the

throughout

this Order, however,

the question

actor exceeded otherwise judiciary. manageable the federal Gordon

the scope of its contractual the law is a question

obligations

violated

soundly

committed

"Damage actions

are particularly of monetary

judicially relief will not draw branch." (internal

The granting courts into conflict

with the executive (5th Cir. 1998)

v. Texas, 153 F.3d 190, 195 and formatting Defendants omitted) . caution

citations

Finally, derivative commanders essential augment

that without

a finding of

absolute would

official

immunity

in this case, military environment whenever deemed they decide to

forfeit

the tort-free

to effective

combat operations with civilian

military

personnel

contractors.

But even by

if the Court were to find that the interrogation civilians decision necessarily to employ constitutes

of detainees the

"combat operations,"

civilian

contractors

instead of military

~

Preemption the FTCA

under the Combatant

Activities

Exception

to

preempts combatant

Plaintiffs' activities

claims because that present

wartime

interrogations federal

are

a uniquely

interest

that significantly doubt as to whether activities

conflicts

with state law. actions

The Court expresses combatant claims

Defendants'

constituted

and holds that, even if they did, Plaintiffs' because they do not present uniquely

are not preempted interests, law.

federal

nor do they pose a significant

conflict

with state

Under the FTCA, the united immunity

States waives suit against

its sovereign the federal
§

for torts and authorizes subject to certain

government 1346(b)

exceptions.

See 28 U.S.C.

(2005).

One of these is the discretionary immunity

function the

exception, government

which reserves

for claims against of a discretionary Another

based on the performance function. Id.
§

governmental

2680(a).

exception, activities

which

is the one raised exception. immunity

in this case, is the combatant activities exception

The combatant

reserves

sovereign of

for "[a]ny claim arising

out of combatant

activities

the military of war." a.

or naval forces, or of the Coast Guard, during

time

Id. § 2680(j). Combatant activities because Defendants argue that activities

As an initial matter, Plaintiffs' exception

claims are preempted

under the combatant

to the FTCA, the Court addresses

the issue of whether

Defendants'

conduct

constituted

a combatant

activity.

Defendants

argue that they indisputably because they interrogated facility

performed

combatant

activities zone

Iraqis detained

at a combat

detention

in support of the U.S. Army. to determine whether

The Court finds

that discovery services engaging available

is needed

Defendants' unlike contact detainees in soldiers

qualify

as combatant combat,

activities

because,

in actual

the amount of physical against

to civilian

interrogators is largely

captive

a secure prison allegedly,

facility

limited by law and,

by contract. urge the Court to adopt a "battlefield" others theory

Defendants and conclude is certainly

that "[a]iding a combatant

to swing the sword of battle (Defs.' Mem. at 32) omitted). activities While the Court are important does not in combatant merely a of of being

activity."

(internal formatting agrees

and citations

that "arrest and detention of war,"

incidents resolve

(Id.), this broad generalization of whether of Defendants
§

the question within

engaged

activities

the meaning

2680(j) because

an "important combatant military

incident

of war" does not make something the mass production

activity. uniforms

For instance,

at a private

mill is an important activity.

incident

war, but it is certainly Defendants combatant

not a combatant

argue that their employees

indisputably

performed

activities,

but the Court cannot draw this conclusion

If it had been intended that all activities. . in . preparation for war were to be included[,] the words 'war activities,' it seems, would have been more appropriate, but instead, the exception or exemption from liability for torts was restricted to 'combat activities,' which as indicated means the actual engaging in the exercise of physical force.

6From the briefs, both parties appear to accept that the Boyle analysis, initially developed in the context of the discretionary function exception to the FTCA, applies equally in the context of the combatant activities exception. That being the case, the Court will assume without deciding that Boyle applies when evaluating whether Plaintiffs' conduct falls within the combatant activities exception.

reasons

to follow,

the Court finds that Plaintiffs'

claims

are

not preempted

here under the Boyle analysis. Corporation, the framework 487 U.S. 500 under which require The the

In Boyle v. united Technologies (1988), the Supreme exceptions preemption Court explained

to the FTCA's waiver of sovereign of tort claims against the Court was whether government

immunity

contractors.

issue before exception at 511.

the discretionary

function Id.

of the FTCA preempted Boyle involved

the plaintiff's

tort claims.

a wrongful

death claim by the father of a to escape from his

Navy lieutenant crashed

who drowned

when he was unable

helicopter.

Id. at 500.

The father alleged because against it opened

that the out instead helicopter

escape hatch design was defective of in, allowing to prevent the water pressure

a submerged

its operation.

Id. at 503.

The Supreme

Court found

that the FTCA preempted

state tort claims.

Id. at 512. test, holding (1) (2)

In doing so, the Court announced that state law is displaced "uniquely federal interests" by federal

a two-part

law only when

are at stake; id. at 504-07, and a "significant Id. at 507-13.

the application conflict" Applying function product

of state tort law would produce or interests.

with federal policies

this test, the Boyle Court found that the discretionary exception defect conflicted with, and thereby preempted, a government approved contractor supplying

claims against

goods where the federal government

and the contractor

complied

with reasonably

precise

product

specifications,

and

where the contractor Id. at 512. United Finding

warned

the government

of any known defects. of equipment by the

that the procurement federal

States was a uniquely

interest,

id. at 507, the because the

Court held that the plaintiff's state-imposed mechanisms exactly duty of care

claims were preempted

(to manufacture

escape-hatch was

of the sort that plaintiff to the government mechanisms

claimed was necessary) duty (to

contrary

contract-imposed

manufacture Id. at 509.

escape-hatch

shown by the specifications).

Defendants because

argue that Plaintiffs'

claims are preempted federal interest state tort

the prosecution

of war is a uniquely frustrated

that would be significantly causes of action against limited record available

by interposing

CACI.

The Court finds, based on the that in and

at this stage in the litigation, because the interests

Plaintiffs'

claims are not preempted

this case are shared between Plaintiffs' federal analysis

federal and state governments conflict

claims do not significantly The Court addresses

with uniquely

interests.

each part of the Boyle

in turn below. i. uniquely federal interests claims implicate a

Defendants uniquely federal

argue that Plaintiffs' interest because

the prosecution

of war is a

power constitutionally

vested

solely in the federal government.

Although prosecute implicate

it recognizes

the federal government's

sole authority claims

to

war, the Court disagrees a uniquely federal

that Plaintiffs' for three

interest

(3) reasons. argument to a of that

First, the Court is unpersuaded subjecting damages a war. entity; a private, for-profit

by Defendants'

civilian

corporation

suit will interrupt Plaintiffs

or interfere

with the prosecution or any government Additionally,

are not suing soldiers

they are suing civilian

corporations.

as

far as the Court can discern, much of the evidence pursuing

the military

has already

collected

it may be asked to provide proceedings against

in this case in co-

courts martial

CACI's alleged burden

conspirators. government

Accordingly,

the source-collecting

on the it

in this case will be minimal of a war.

and will not distract rejects to

from the prosecution Defendants' discovery war. Second, against argument

The Court therefore

that allowing

this suit to go forward prosecution

will interfere

with the government's

of a

this Court finds that permitting advances

this litigation federal interests

CACI to go forward actually

(and state interests, liability in service creates

as well) because

the threat of tort contractors engaged

incentives

for government

contracts

at all levels of government to screen,

to comply with

their contractual

obligations

train and manage

("Competitive too aggressive threatening

pressures

mean.

. that a firm whose guards are that raise costs, thereby

will face damages

its replacement.") the Supreme to prison Court declined to extend prison

In Richardson, qualified management 412. immunity

guards employed

by a private

firm in a constitutional

tort action.

521 U.S. at of

The Court reasoned immunity

that the history

and purpose

qualified because

did not support an extension to extend immunity

in that case the with Id. at 409.

declining

would motivate compliant norms.

contractor government

to provide requirements

service

in a manner

and constitutional permitting

Like in Richardson,

Plaintiffs'

claims against in low cost, of their Id. at

CACI to go forward will advance high quality replacement ability 409. contractors

the federal

interest

by forcing CACI to "face threats that demonstrate job."

by other firms with records

to do both a safer and a more effective in this suit therefore here. concerns advance

The claims

any federal

interests

that may be involved

Third, Defendants' both federal enforcement that opposes

federalism

are misplaced interest

because in the

and state governments of laws against preemption
§

have a strong evincing

torture,

a shared policy e.g., Antitorture) ; war

in this case. 2340A
§

Compare,

Torture Act, 18 U.S.C.

(2006) (criminalizing

War Crimes Act, 18 U.S.C.

2441

(2006) (criminalizing

crimes);

and Military

Commission

Act, 10 U.S.C.

§

948a(1) (A)

(2006) (defining of Maryland, permitting (LexisNexis consideration Health

"unlawful

enemy combatant"),

with Constitution laws

Decl. of Rights, Art. 16 (prohibiting pains);

cruel and unusual 2008)

VA. CODE ANN. § 19.2-264.2 is a

(providing that the use of torture sentencing); 2008)

in death penalty
§

and MD. CODE ANN., (forbidding designed the sale for

- General

24-302

(LexisNexis

of toys depicting torture).

or resembling regarding

an instrument

Concerns

torture are both state and federal federal concern. federal For all these interests"

and are therefore reasons,

not a uniquely

the Court concludes

that "uniquely

are not at stake in this case. ii. Assuming, federal significant arguendo, conflict with federal policies claims invoke uniquely Plaintiffs'

that Plaintiffs'

interests,

the Court must now address conflict

whether

state tort claims pose a significant interests. federal because Anything

with federal between state and

less than a total conflict

interests preemption

is insufficient only applies

to cause preemption

under Boyle

if the contractor

cannot possibly imposed

comply with its contractual duties at the same time. Preemption

duties and the state-law

See Boyle,

487 U.S. at 508-09. situation, is not in

does not apply even in "an intermediate

which the duty sought to be imposed on the contractor identical to one assumed under the contract,

but is also not

contrary

to any assumed."

Id. at 509.

As long as "[t]he obligations and

contractor

could comply with both its contractual duty of care,"

the state prescribed be preempted. Asbestos

state law will not generally

Id.; see also In re Joint E. & S. Dist. New York 897 F.2d 626, 632 the military (2d Cir. 1990) defense ("Stripped under Boyle v. Martinto is

Litig.,

its essentials, to claim, Marietta

contractor's

'The Government

made me do it.'"); Barron

Corp., 868 F. Supp. 1203, 1207 conflict exits

(N.D. Cal. 1994) cannot

("[R]equisite

[sic] only where a contractor

at the same time comply with duties under state law and duties under a federal Defendants contract."). raise several arguments as to why the application conflict with the exception.

of state tort law would create a significant federal interests underlying the combatant

activities

Upon careful arguments

consideration,

the Court finds that Defendants' that Plaintiffs' interests, claims pose a below.

do not justify conflict

finding

significant

with federal

as discussed

Defendants 1337

cite Koohi v. United States, for the proposition

976 F.2d 1328, 1333,

(9th Cir. 1992),

that no tort duty force is directed to judicial and

should extend

to those against

whom combatant

in times of war because second-guessing.

it would subject

commanders

In Koohi, heirs of the deceased aircraft

passengers States

crew of an Iraqi civilian warship

sued after a United

shot down the aircraft

during

the "tanker war" between

Iraq and Iran. the united

976 F.2d at 1329-30.

The plaintiffs

sued both

States and the civilian

manufacturers

of the weapons the Supreme the to

systems used by the warship. Court's formulation

Id. at 1330.

Citing

of the preemption

framework

in Boyle,

Ninth Circuit

found that the combatant

activities

exception

the FTCA "shield [ed] from liability to fighting based vessels

those who supply ammunition Id. at 1336. The court

in a combat area."

its holding

partially

on the rationale

that "during wartime

encounters

no duty of reasonable

care is owed to those against military

whom force is directed action." Id. at 1337.

as a result of authorized

As an initial matter, Circuit precedent. argument, however,

this Court is not bound by Ninth the substance of Defendants' that Plaintiffs threat and force. at

Addressing Defendants

fail to consider

the time of their interrogation therefore were not properly on the limited

posed no combatant

the recipients

of combatant before

Accordingly,

record currently

the Court, the of complex

the Court cannot distinction

say that no duty was owed. the Koohi contractor as government

Moreover,

between

as a supplier

goods and Defendants suggests Supplying nuanced experts.

contractor

service providers level. implicates

Koohi is distinguishable complex military

on a fundamental inevitably

technologies

discretion

and sophisticated 487 U.S. at 511.

judgments

by military

See Boyle,

It was therefore

appropriate

to absolve

Koohi's

government

contractor

of of the here

responsibility civilian Airbus

for the government's as an enemy target.

misidentification In contrast,

Plaintiffs

do not allege or otherwise, elsewhere, Defendants'

that Defendants to the United

supplied

any equipment,

defective

States military, judgment

and as discussed on the scope of Defendants' contract.

the Court must withhold discretion until

it can examine

For these reasons, entitle Defendants Again

the Court concludes to dismissal

that Koohi does not

in this case. counter that removing it ensures equal

citing Koohi, Defendants tort duties"

"battlefield treatment Defendants compensation

is beneficial in war.

because

of those injured tell the Court, a few

"It would make little sense,"

"to single out for special of harmful conduct] of our of . on

[innocent victims

the basis that they have suffered military forces" rather

from the negligence

than from the intentional

infliction

Defendants' deserving

argument innocent

is that it is worse to compensate

a few it to

victims

than none at all, the Court rejects favoring access

as inconsistent the courts.

with the strong public policy

More important, that they suffered

however,

is that Plaintiffs

do not allege forces. solely

from the negligence

of U.S. military

While indeed they may have, the case at bar is captioned

against

private

government

contractors. speaking, unless

Defendants

fail to are not

appreciate entitled

that, generally

private

contractors

to sovereign

immunity

classified Airways,

as government Inc., 460 F. of sovereign

employees.

See McMahon

v. Presidential

Supp. 2d 1315, 1330 immunity

(M.D. Fla. 2006)

("The doctrine

may not be extended no matter

to cover the fault of a private its connection with the

corporation, government.") 867, 874

how intimate

(citing Foster

v. Day & Zimmerman, Defendants

Inc., 502 F.2d that they do of the States

(8th Cir. 1974)). as government

acknowledge

not qualify FTCA.

employees

within

the meaning

(See Defs.' Mem. at 26 ("The immunity

of the United assert their

and its employees claims

is the reason why Plaintiffs contractors

solely against

with which they had little or The Court

no contact.").) therefore

Immunity

is a shield, not a blanket.

concludes

that the limited record does not indicate claims to go forward would create a

that allowing

Plaintiffs'

duty of care on the battlefield. The Court also rejects Defendants' private citizens argument that haling alleged on

into federal court to defend against contract

violations

of a government

and other law infringes

separation

of powers

concerns

are not implicated judicially

here because

" [d]amage actions The granting

are particularly

manageable. courts

of monetary

relief will not draw the federal

7rf and when it should become relevant, the Court will present the parties with the opportunity to address the choice of law issue at a later date.

In sum, the Court doubts constituted combatant

that Defendants' and therefore

activities doubts that the that to

activities

FTCA is relevant conclusion interrogate

because

the limited

record does not support contractors assigned

where Defendants incapacitated

are civilian

detainees.

Even if it did, however, under

the Court holds that Plaintiffs' Boyle because conflict Plaintiffs'

claims are not preempted

claims do not present federal interest.

a significant

with a uniquely motion

The Court therefore of

denies Defendants' preemption. ~

to dismiss

on the grounds

Alien Tort Statute established that Plaintiffs' claims are not preempted the question original of

Having by federal whether

law, the Court must now address

the Alien Tort Statute

("ATS") confers

jurisdiction government sustained Plaintiffs

upon this Court over alien tort claims against contractor civilian interrogators prison for injuries interrogations.

by detainees

during military

argue that their ATS claims 542 U.S. 692

survive under Sosa v. the Court need not

Alvarez-Machain, recognize

(2004), because

any new claims here and because condemned on the grounds

war crimes are

universally reprehensible individually

that they are so them must be held

that anyone who commits responsible. jurisdiction

The Court holds that the ATS does not over civil causes of action against

confer original

government

contractors

under international and therefore

law because

such definite

claims are fairly modern among the community The ATS, passed confers original

not sufficiently under Bosa.

of nations,

as required

as part of the Judiciary upon district

Act of 1798, to hear "any

jurisdiction

courts

civil action by an alien for a tort only, committed of the law of nations U.S.C.
§

in violation 28

or a treaty of the United

States."

1350

(2006).

Courts need not rely on express civil claims based on ATS jurisdiction.

legislation

to entertain

jurisdiction, very limited recognized

courts have only the ability category defined law."

"to hear claims and

in a

by the law of nations

at common

Id. at 712. Court further defined jurisdiction the "law of

In Bosa, the Supreme nations" violations

that trigger

under the ATS by types of is The

first generally violations. historically

identifying

the two different

Id. at 714-15. comprised

The term "law of nations" spheres.

of two distinct

Id. at 715.

first concerns and the second domestic savor."

how states conduct involves

themselves

among each other, "outside

the conduct of individuals carrying

boundaries Id.

and consequently

an international

At the intersection "hybrid international

of these two spheres

lies a class of jurisdiction

norms"

and the ATS confers

1)

the current view of common law as made or created law creates the potential that district courts will exercise too much discretion in recognizing torts; it is customary to look for legislative guidance exercising innovative authority over substantive "before law";

2)

4) 5)

potential adverse foreign policy consequences from the recognition of additional causes of action; and Congress has not asked the judiciary this area. to expand the law in

obligatory

violations

that are actionable

under the ATS."

(See

PIs.' Opp'n at 23 (internal formatting The Court grants Defendants' ATS claims because of action against Motion

and citations

omitted).)

to Dismiss

as to Plaintiffs' that civil causes qualify

the Court is not convinced government contractors for two

in this context (2) reasons.

under Sosa for ATS jurisdiction First, the Court doubts the present

that the content and acceptance definite

of

claims are sufficiently interrogators

under Sosa because novel practice. allegations on the grounds

the use of contractor Plaintiffs within contend

is a modern, Plaintiffs'

that Sosa brings

the scope of this Court's ATS jurisdiction treatment violations

that war crimes and other degrading specific, nations. universal, Plaintiffs and obligatory

constitute of the law of because

draw this conclusion, Filartiga

they explain,

Sosa cited with approval 887

v. Pena-Irala,

630 F.2d 876, 726 why

(2d Cir. 1980), and Tel-Oren (D.C. Cir. 1984). the Sosa Cour