By ANNIE YOUDERIAN
Defense contractors Titan and CACI narrowly avoided liability over claims that their agents abused detainees at the Abu Ghraib prison in Iraq. The D.C. Circuit ruled 2-1 that the contractors, as wartime agents of the U.S. military, can’t be sued under state tort laws.
The ruling affirms dismissal of claims against Titan, but reverses a decision to allow Iraqi detainees and their relatives to sue CACI.
Titan provided interpreter services for the military, while CACI’s agents helped interrogate Abu Ghraib detainees.
In the majority opinion, Judge Laurence Silberman noted that the government never prosecuted either contractor, and that most claims were limited to “abuse” or “harm” — not war crimes or torture.
But dissenting Judge Merrick Garland found the claims much more alarming: “The plaintiffs in these cases allege they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison.”
In the lower court, U.S. District Judge James Robertson applied a test of first impression to decide if federal law preempted the state tort claims. If the contractors’ employees were “under the direct command and exclusive operational control of the military chain of command,” Robertson said they were protected by the preemption defense.
Titan qualified for protection, the judge ruled, because its employees were “fully integrated into their military units.” He said CACI’s employees were similarly integrated, but cited the company’s “dual chain of command” and its power to give employees “advice and feedback” as reasons for allowing the case against CACI to proceed.
The federal appeals court rejected portions of the test, particularly the “exclusive” terminology, and ruled that federal law trumped the state tort claims in both cases.
“As CACI argues, that a contractor has exerted some limited influence over an operation does not undermine the federal interest in immunizing the operation from suit,” Judge Silberman wrote.
“We think the following formulation better secures the federal interests concerned: During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted.”
In a sharp dissent, Judge Garland argued that the contractors are liable for their alleged abuses, which he notes have been “repeatedly and vociferously condemned” by the current and previous administrations.
“No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors – who were neither soldiers nor civilian government employees,” Garland wrote.
“Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the Executive’s ability to wage war.
“To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability.”
Posted at Courthouse News.