By Kelsey Mellan
On October 21, 2016, the Fourth Circuit issued a published opinion in Al Shimari v. CACI Premier Tech., Inc., a civil case involving four Iraqi nationals who were allegedly abused while detained at Abu Gharib prison, located near Baghdad, Iraq, in 2003 and 2004. While the plaintiffs in this action were held by the United States Army, CACI Premier Technology (“CACI”), a corporation headquartered in Virginia, provided contract interrogation services for the military at the time of the alleged abuse. This case is on appeal before the Fourth Circuit for the fourth time. The current issue before the court is whether the district court erred in dismissing plaintiffs’ complaint on the ground that it presented a non-justiciable political question. The Fourth Circuit vacated the district court’s judgment and remanded this case for further proceedings consistent with the instructions discussed in this opinion.
Facts & Procedural History
In 2003, the US took control of Abu Gharib prison (“Abu Gharib”), a prison located near Baghdad, Iraq that was previously under Saddam Hussein’s control. Upon assuming control of the Abu Gharib, the US military used the facilities to hold individuals for interrogation related to intelligence gathering. Due to a shortage of military interrogators, the US contracted CACI to provide additional interrogation services at Abu Gharib. In a later investigation of Abu Gharib, the United States Department of Defense (“DoD”) determined that prisoners were tortured at the prison between October and December 2003. The DoD investigation confirmed that both CACI interrogators and military personnel engaged in the allegedly abusive conduct. The US military disciplined multiple service members who were involved by either court martial or imprisonment. It is unclear as to whether any CACI interrogators where punished either administratively or criminally.
In their complaint, filed in June 2008, the plaintiffs alleged that CACI interrogators conspired with low-ranking military police officials to abuse the plaintiffs to make them “more responsive” during later interrogations. The plaintiffs further allege that CACI interrogators “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees” in clear violation of the Geneva Conventions, the Army Field Manual, and the laws of the United States. Furthermore, the plaintiffs allege the acts of abuse were possible because of a “command vacuum” at Abu Gharib, caused by the failure of military leaders to exercise effective oversight of CACI interrogators. CACI moved to dismiss the plaintiff’s complaint on several grounds, including the political question doctrine. However, the district court determined that it lacked subject matter jurisdiction over this case, as CACI is a private party rather than a governmental actor, and both parties failed to demonstrate either diversity or federal question jurisdiction.
After several subsequent remands and rehearings in this case, the district court decided in Al Shimari v. CACI Premier Tech., Inc. (4th Cir. 2014) (Al Shimari III) that the plaintiffs’ claim presented a non-justiciable political question and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). In this appeal, the plaintiffs contend that the district court erred in dismissing their complaint as non-justiciable under the political question doctrine.
Explanation of Political Question Doctrine
The Supreme Court defined the political question doctrine in Japan Whaling Association v. American Cetacean Society as the limitation of courts’ jurisdiction over “controversies which revolved around policy choices and value determinations constitutionally committed” to either the executive or legislative branch. This is a narrow exception to the judiciary’s general obligation to decide cases properly brought before the courts. This rule is justified by the concern that courts are ill-equipped to evaluate discretional military decisions. Despite the general presumption that military decisions are committed exclusively to the executive branch, a claim is not shielded from judicial review just because it arose in a military setting.
The Supreme Court established a six-factor test in Baker v. Carr to aid courts in determining whether a case presents a political question. In Taylor v. Kellogg Brown & Root Services, Inc., the Fourth Circuit further distilled these factors into two questions for consideration in determining whether a court has subject matter jurisdiction in a negligence suit against a government contractor, such as CACI. The first inquiry is whether the government contractor was under the direct control of the military. The second inquiry is whether national defense interests were so intertwined with military decisions governing the contractor’s conduct that a decision on the merits of the claim would require the court to question military judgments. An affirmative answer to either question generally triggers the application of the political question doctrine.
Application of the Political Question Doctrine
In the instant case, the Fourth Circuit determined that there was some evidence that shows the military was in direct control of CACI interrogators, including the fact that the military was in charge of the official command structure at Abu Gharib. However, overwhelming evidence in the record indicated that the military failed to exercise actual control over the CACI interrogators. Moreover, additional evidence suggested that CACI interrogators actually ordered low-level military personnel to mistreat the detainees.
In total, the record demonstrated that the military’s formal command authority did not translate into actual day-to-day control of CACI interrogators. While the district court’s analysis focused on this formal control by the military, the Fourth Circuit decided that the concept of dire control encompasses not only the requirements set in place before the interrogations, but also what actually occurred during the interrogations. Furthermore, this court clarified that the military cannot lawfully exercise its authority by directing a contractor to engage in unlawful activity, and therefore if a contractor does engage in unlawful activity, the contractor cannot claim protection under the political question doctrine.
In terms of the second Taylor factor, the district court concluded that the plaintiffs’ claims were non-justiciable because adjudicating the plaintiffs’ claims would impinge on the military’s authority to select interrogation strategies. However, the district court failed to draw a distinction between unlawful conduct and discretionary acts that were not unlawful when committed. Unlawful acts fall outside the protection of the political question doctrine. Therefore, the lower court must distinguish between unlawful acts and discretionary acts (that were, at the time, lawful).
When a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale of the political question doctrine does not preclude judicial review. The adjudication of a claim involving an unlawful act simply requires a court to engage in the traditional judicial function of “saying what the law is.” The Supreme Court has explained that the political question doctrine does not strip courts of the ability to apply traditional rules of statutory interpretation to the facts in a particular case. Therefore, any conduct of CACI employees that occurred under direct military control or involving sensitive military judgments, and was not unlawful when committed, constituted is shielded from judicial review under the political question doctrine. However, any unlawful acts committed by CACI employees are subject to judicial review, as they fall outside of the political question doctrine’s purview.
The Fourth Circuit acknowledged that some conduct is not clearly lawful or unlawful, and deemed this as “grey area” conduct. Accordingly, this court vacated the district court’s decision and remanded the case. The Fourth Circuit instructed the district court to determine which of the alleged acts were unlawful by examining the evidence regarding the specific conduct to which the plaintiffs were subjected and the source of any direction under which the acts took place. Judge Floyd authored a concurrence in this case, in which he agreed with the majority’s holding, but questioned the definition of “grey area” conduct and whether this greyness renders close cases justiciable.
The Fourth Circuit concluded the political question doctrine does not shield unlawful acts committed by government contractors from judicial review and thus vacated the district court’s judgment and remanded this case for further proceedings.