Saleh v. Titan: Political Divisions in Determining Accountability of Private Military Contractors

On February 10, 2009, the Court of Appeals for the District of Columbia Circuit heard oral argument in Saleh v. Titan, a case in which 250 Iraqi plaintiffs are attempting to hold accountable CACI International, Incorporated and L-3 Communications (formerly Titan Corporation) for allegedly committing torture, as well as other state law tort violations, in their provision of interrogation and translation services at Abu Ghraib and other prisons in Iraq. The case raises the familiar issue of accountability of private military contractors (PMCs) in the so-called war on terror. (For a good summary of the factual and procedural history of the case, see the following link from the Center for Constitutional Rights.) The panel, consisting of Judges Brett M. Kavanaugh (appointed by George W. Bush), Merrick B. Garland (appointed by Bill Clinton), and Laurence H. Silberman (appointed by Ronald Reagan), was unsurprisingly divided on ideological grounds.

On November 6, 2007, District Judge James Robertson issued a Memorandum Order granting Titan's motion for summary judgment, thereby dismissing the case against Titan, but denying CACI's motion for summary judgment and ordering a jury trial. Judge Robertson analyzed the level of control exercised by the U.S. government over the PMCs to determine whether the claims were preempted by the federal contractor defense. He concluded, "The critical differences between the ways that contract translators and contract interrogators were managed and supervised lead to different outcomes. Because the facts on the ground show that Titan linguists performed their duties under the exclusive operational control of the military, the remaining state law claims against Titan are preempted and must be dismissed. Because a reasonable trier of fact could conclude that CACI retained significant authority to manage its employees, however, I am unable to conclude at this summary judgment stage that the federal interest underlying the combatant activities exception requires the preemption of state tort claims against CACI. This does not mean that CACI may not successfully prove this affirmative defense at trial, but the task of sorting through the disputed facts regarding the military’s command and control of CACI's employees will be for the jury."

At argument before the Circuit Court, the judges questioned heavily both parties on the combatant activities exception under the Federal Tort Claims Act (FTCA), which divests district court jurisdiction over civil actions for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Judge Silberman emphasized that the exception applies to claims "arising out of" combatant activities of the U.S. military and not "claims against" the U.S. military, and therefore could include combatant activities engaged in by non-U.S. military personnel. Judge Garland countered that the FTCA is a liability statute and therefore the exceptions should be read narrowly. Judge Kavanaugh noted congressional silence about whether federal preemption applies in this context but stated that war time activity likely falls within the scope of implied preemption.

Ultimately, the decision whether to preempt liability based on the federal contractor defense depends on how the judges interpret congressional silence on the issue. Judges Silberman and Kavanaugh appear to subscribe to the idea that congressional silence supports the conclusion that preemption applies, especially in light of the Executive's primacy in war-related matters. Judge Garland, on the other hand, appears to support the conclusion that if Congress had intended to preclude liability for non-U.S. military personnel, it would have done so explicitly. As commonly transpires on the Court of Appeals for the D.C. Circuit, the outcome will likely be driven by each judge's political persuasions.