Iraqi citizens who claim that they were abused by civilian government contractor employees who helped the US military interrogate detainees at Abu Ghraib prison following the US invasion in 2003 are appealing a federal district court’s dismissal of their damages suit. On June 24, 2015, after eight years of litigation—including two prior appeals to the US Court of Appeals for the Fourth Circuit (the first of which involved the court’s en banc review)—Judge Gerald Bruce Lee of the US District Court for the Eastern District of Virginia entered judgment dismissing the suit on the ground that it is nonjusticiable under the political question doctrine. Al Shimari v. CACI Premier Tech., Inc., No. 1:08-cv-00827-GBL-JFA, 2015 WL 4740217 (E.D. Va. June 18, 2015). The Fourth Circuit docketed the current appeal, No. 15-1831, on July 28, 2015.

“The political question doctrine is a ‘function of the separation of powers,’ and prevents federal courts from deciding issues that the Constitution assigns to the political branches, or that the judiciary is ill-equipped to address.” Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 531 (4th Cir. 2014) (quotingBaker v. Carr, 369 U.S. 186, 217 (1962)). It is a threshold, jurisdictional defense, which government contractors that provided a wide variety of combat-zone services to the US military in Iraq and Afghanistan have raised with mixed success when seeking pretrial dismissal of wrongful death, personal injury, and other types of private-party tort suits that sovereign immunity precludes if brought against the United States. Early in 2015, the Supreme Court declined to review three appeals that squarely raised the political question issue in the context of “battlefield contractor” litigation. See In re KBR, Inc., Burn Pit Litig., 744 F.3d 326 (4th Cir. 2014); cert. denied sub nom. Metzgar v. Kellogg Brown & Root Servs., Inc., 135 S. Ct. 1153 (2015); Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458 (3d Cir. 2013), cert. denied, 135 S. Ct. 1152 (2015); McManaway v. Kellogg Brown & Root Servs., Inc., 554 F. App’x 347 (5th Cir. 2014), cert. denied, 135 S. Ct. 1153 (2015).

In Al Shimari, the district court, before any discovery was conducted, initially declined to dismiss the suit on political question grounds. A three-judge Fourth Circuit panel reversed, but on rehearing, a divided en banc Fourth Circuit refused, for lack of appellate jurisdiction, to hear CACI’s interlocutory appeal of the district court’s ruling. See Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc). The district court then dismissed the suit, holding that it had no jurisdiction to consider the plaintiffs’ Alien Tort Statute claims, and that provisional Iraqi law precluded the plaintiffs’ common-law tort claims. On appeal, the Fourth Circuit held that Alien Tort Statute jurisdiction was not precluded, but that depending on further factual development, the political question doctrine might bar the litigation. See Al Shimari v. CACI Premier Tech., Inc., 758 F.3d at 530-31, 536.

Referring to its own political question precedent in the battlefield contractor context, the court of appeals explained that the political question doctrine would apply if either of two tests apply: (i) “whether the government contractor was under the ‘plenary’ or ‘direct’ control of the military,” or (ii) “whether national defense interests were ‘closely intertwined’ with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim ‘would require the judiciary to question actual, sensitive judgments made by the military.’” Id. at 533-34 (quoting Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 411 (4th Cir. 2011)). The court further indicated that “the critical issue with respect to the question of ‘plenary’ or ‘direct’ control is not whether the military ‘exercised some level of oversight’ over a contractor’s activities [but] whether the military clearly ‘chose how to carry out these tasks,’ rather than giving the contractor discretion to determine the manner in which the contractual duties would be performed.” Id. at 534 (quoting Burn Pit Litig., 744 F.3d at 339).

On remand, the district court, based on military depositions and contractual documents, found that “the military maintained control over all relevant aspects of Abu Ghraib, including the manner in which interrogations were carried out . . . . The military clearly chose how to carry out tasks related to the interrogation mission, while CACI had no discretion in any operational matters." Al Shimari v. CACI Premier Tech., Inc., 2015 WL 4740217, at *9. Thus, the district court held that under the first test described above, the political question doctrine bars the litigation in its entirety. In addition, the district court held that the second test applies because adjudicating the suit “would involve questioning sensitive military judgments”—specifically, the “debate within the Executive Branch about what were morally appropriate [interrogation] techniques and what could be justified by military necessity." Id. at *10 (internal quotation marks omitted).

Now the Fourth Circuit will have the opportunity to review the district court’s application of the political question doctrine in the war-zone contractor context. The political question doctrine and other threshold defenses available to government contractors that are subjected to tort suits arising out of the services that they provide to the U.S. military both abroad and domestically (e.g., combatant activities preemption; derivative sovereign immunity) are still being refined by federal appellate and trial courts in cases that warrant government contractors’ scrutiny.