Feral Jundi

     First off, I am not posting this to say that contractors are above the law or that we should not be held accountable.  I want us to be held accountable and to serve honorably. But does that mean that all of our rights and legal protections should be thrown out with the bath water?  I don’t think so, nor will I support that.

     I also think that being covered by the UCMJ is appropriate, just as long as the military exercises that right to use UCMJ for matters concerning contractors.  We are also accountable to the various SOFA’s out there, so to say that we are above the law is just not true.

     But in this case, when it comes to people filing torte claims against the military and contractors during a time of war, I will not support it.  And once we cross the line of setting precedents that it is ‘ok’ to file torte claims against contractors and the military during a time of war, then what does that mean and where does it stop?  Could an enemy combatant or civilian sue the defense contractor, that made the ammunition that was fired out of the soldier’s rifle because it was too lethal?  Or how about suing the company that built the tank, because the soldier fired an anti-tank round at a house that killed some civilians? The examples I brought up are extreme, but once we go down that road, that is the kind of things that will be brought up as fair game because of that little thing called ‘precedent’.

    It could be extremely expensive for the government and for contractors, and it could be used as a tool by the enemy for propaganda purposes and certainly hinder the war effort and any future battlefield endeavors.  Do we want battlefield commanders to be focused on protecting himself from lawsuits, or defeating the enemy by destroying their will to fight (which requires killing and destroying–key components of war)? Do we want that kind of added complexity, in an already extremely complex and chaotic matter such as war fighting?

     There are a number of precedents brought up in the statements below, that I think are worth bringing up when we talk about the potential pitfalls with battlefield torte claims. (Johnson vs. US, Koohi vs. US, Boyle vs UTC, etc.) I would like to hear from any of the legal eagles reading the blog, or even the new readership coming from other blogs on this matter, because I am genuinely interested in the arguments for or against.  To me, I am glad this court rendered this decision, and it makes sense for this specific case.

     But let me be very clear, I do not believe contractors are above the law, and nor do I want to give that impression here. I want accountability, and the industry wants accountability.  But we do not wish to have our legal rights stomped into the ground like some sacrificial political bug.

     Below, the panel of the federal Court of Appeals in Washington DC rendered its decision, and these are a few of the things Judge Laurence Silberman had to say. (go to the PDF below to read the whole thing) Of course on Scahill’s site, and in Harper’s article on the ruling, they gave very little in regards to what Silberman actually had to say, and mostly highlighted what Judge Garland had to say in his dissent.  That’s fine, but that really isn’t being honest or balanced now, is it? So please allow me to highlight what the ‘winning 2-1 ruling’ had to say on the matter. –Matt

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As we were told, a number of American servicemen have

already been subjected to criminal court-martial proceedings in relation to the events at Abu Ghraib and have been convicted for their respective roles.  While the federal government has jurisdiction to pursue criminal charges against the contractors should it deem such action appropriate, see 18 U.S.C. §§ 2340A, 2441, 3261, and although extensive investigations were pursued by the Department of Justice upon referral from the military investigator, no criminal charges eventuated against the contract employees.  (Iraqi contract employees are also subject to criminal suit in Iraqi court.)  Nor did the government pursue any contractual remedies against either contractor.  The U.S. Army Claims Service has confirmed that it will compensate detainees who establish legitimate claims for relief under the Foreign

Claims Act, 10 U.S.C. § 2734.  Saleh pursued such a route,

succeeding in obtaining $5,000 in compensation, despite the fact that the Army’s investigation indicated that Saleh was never actually interrogated or abused.

While the terms “torture” and “war crimes” are mentioned

throughout plaintiffs’ appellate briefs and were used

sporadically at oral argument, the factual allegations in the

plaintiffs’ briefs are in virtually all instances limited to claims of  “abuse” or “harm.”  To be sure, as the dissent emphasizes,

certain allegations in the complaints are a good deal more

dramatic.  But after discovery and the summary judgment

proceeding, for whatever reason, plaintiffs did not refer to those allegations in their briefs on appeal.  Indeed, no accusation of “torture” or specific “war crimes” is made  against Titan interpreters in the briefs before us.  We are entitled, therefore to take the plaintiffs’ cases as they present them to us.

*****

In our case, the relevant exception to the FTCA’s waiver of sovereign immunity is the provision excepting “any claim arising out of the combatant activities of the military or armed forces, or the Coast Guard, during time of

war.”  28 U.S.C. § 2680(j).3  We note that this exception is even broader than the discretionary function exception.  In the latter situation, to find a conflict, one must discover a discrete

discretionary governmental decision, which precludes suits

based on that decision, but the former is more like a field

preemption, see, e.g., Clearfield Trust Co. v. United States, 318

U.S. 363, 366-67 (1943), because it casts an immunity net over

any claim that arises out of combat activities.  The arising-out-

of test is a familiar one used in workmen’s compensation

statutes to denote any causal connection between the term of

employment and the injury.4

The parties do not seriously dispute the proposition that

uniquely federal interests are implicated in these cases, nor do

the plaintiffs contend that the detention of enemy combatants is not included within the phrase “combat activities.”  Moreover, although the parties dispute the degree to which the contract employees were integrated into the military’s operational activities, there is no dispute that they were in fact integrated and performing a common mission with the military under ultimate military command.  They were subject to military direction, even if not subject to normal military discipline. Instead, the plaintiffs argue that there is not a significant conflict in applying state or Iraqi tort law to the behavior of both contractors’ employees because the U.S. government itself openly condemned the behavior of those responsible for abusing detainees at Abu Ghraib–at least the Army personnel involved.

In order to determine whether a significant conflict exists

between the federal interests and D.C. tort law, it is necessary to consider the reasons for the combat activities exception.  The legislative history of the combatant activities exception is

“singularly barren,” but it is plain enough that Congress sought

to exempt combatant activities because such activities “by their very nature should be free from the hindrance of a possible damage suit.”  Johnson v. U.S., 170 F.2d 767, 769 (9th Cir. 1948).  As the Ninth Circuit has explained, the combatant

activities exception was designed “to recognize that during

wartime encounters[,] no duty of reasonable care is owed to

those against whom force is directed as a result of authorized

military action.”  Koohi v. U.S., 976 F.2d 1328, 1337 (9th Cir.

1992) (holding preempted claims against a defense contractor

implicated in the Navy’s accidental shoot-down of an Iranian

commercial airliner); see also Ibrahim, 391 F. Supp. 2d at 18

(“war is an inherently ugly business”).

PDF for ruling.