On October 29, 2015, Dentons filed an amicus brief with the Fourth Circuit Court of Appeals on behalf of its clients, the Professional Services Council—The Voice of the Government Services Industry and the Coalition for Government Procurement, in Al Shimari v. CACI Premier Technology, Inc., No. 15-1831. The brief discusses the circumstances under which the political question doctrine—and other pretrial legal defenses, such as federal preemption and derivative sovereign immunity—bar private-party damages suits arising out of the many types of services that government contractors perform for the US military, both abroad and domestically. The brief emphasizes that vital federal interests are at stake and need to be protected in these types of private-party damages suits.
The Al Shimari plaintiffs are Iraqi nationals who were detained and interrogated by the US military at Abu Ghraib prison during the opening months of Operation Iraqi Freedom in 2003. They allege that the defendant contractor’s employees, who assisted the US military with interrogations, conspired with low-level uniformed personnel to utilize harsh interrogation techniques. After considering declarations and other jurisdictional evidence provided by the military, a Virginia federal district court found that the political question doctrine bars the suit because the contractor’s employees functioned under the military’s “plenary and direct control,” and therefore, their alleged tortious conduct cannot be evaluated without second-guessing combat-related military policies and judgments.
The amicus brief explains that the district court closely adhered to the political question doctrine test that the Fourth Circuit has previously established for military contractor cases. Under that doctrine, which is based on the constitutional separation of powers, federal courts cannot second-guess “actual, sensitive, military judgments,” particularly military decisions made in connection with combat-related circumstances. The brief also argues that “combatant activities” preemption and derivative sovereign immunity are additional grounds for affirmance.