Shields Of War: Defining Military Contractors’ Liability For Torture

INTRODUCTIONThe United States' military actions in Iraq and Afghanistan have been heavily dependent on civilian contractors.1 The reliance on personnel not under the direct control and management of the United States military2 and the presence of contractors in foreign battle zones raise significant questions about how military contractors can be held responsible for their actions abroad. Abuses perpetrated by military contractors abroad are exemplified by several contractors' participation-or complicity-in the torture and abuse of Iraqi detainees at the Abu Ghraib prison and other locations in Iraq.3In September of 2011, a panel of the United States Court of Appeals for the Fourth Circuit decided two related cases addressing the ability of federal courts to review U.S. government contractors' misbehavior in war zones. Al-Quraishi v. L-3 Services, Inc.4 and Al Shimari v. CACI International, Inc.5 directly addressed the ability of foreign citizens to sue government contractors for their actions abroad.6 The panel reached two conclusions in these cases. First, the court held that it had appellate jurisdiction under the collateral order doctrine.7 Second, it held that state tort actions against military contractors are preempted by important federal interests.8 Rehearing the cases en banc, the Fourth Circuit dismissed both appeals, holding that the collateral order doctrine did not confer appellate jurisdiction.9 This Note will argue that the Fourth Circuit panel decisions missed an opportunity to clarify the precise nature of the defense available to military contractors and failed to determine whether contractors can be held liable at all for their actions overseas. The en banc decision correctly clarified that contractor defenses do not rise to the level of immunity from suit, but it did not further define the nature of contractor defenses.10Part I of this Note will present the facts and holdings of L-3 Services and CACI and briefly describe the underlying law. Part II will critique the panel's holdings, argue that the panel conflated the doctrines of sovereign immunity and federal preemption, and detail the procedural and practical consequences of the panel's conflation. Part II will then conclude that preemption analysis is the most appropriate approach to both protecting the federal interests inherent in military actions abroad and the ability of foreign citizens to hold military contractors accountable for their actions.I. BACKGROUNDA. The Cases: Al-Quraishi v. L-3 Services, Inc. and Al Shimari v. CACI International, Inc.Both L-3 Services and CACI were suits filed by Iraqi citizens against American military contractors.11 The plaintiffs in both cases claimed that they were detained by the United States military in Iraq.12 The United States government had hired contractors to provide interrogation and translation services at military detention sites.13 While the Fourth Circuit panel noted in CACI that the contractors were required to comply with U.S. Department of Defense (DOD) interrogation policies and practices,14 the plaintiffs in both L-3 Services facilities involved dangerous stress positions; beatings; assaults; sensory deprivation; food, water, and sleep deprivation; and other abuses that were in direct contravention of DOD policies.15 Despite the factual similarities between these cases, the panel addressed two different legal questions.1. Al-Quraishi v. L-3 Services, Inc. and the court's appellate jurisdiction over appeal from a denied motion to dismissIn L-3 Services, the Fourth Circuit panel addressed whether it had appellate jurisdiction over the district court's denial of the defendant's motion to dismiss.16 Seventy-two Iraqis initiated the litigation in L-3 Services after being detained by the United States in Iraq.17 The plaintiffs alleged that federal government contractors tortured them and other detainees rather than simply providing translation services during interrogations. …