Saleh v. Titan Corp.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2009 Decided September 11, 2009

No. 08-7008

HAIDAR MUHSIN SALEH, ET AL.,

APPELLANTS

v.

TITAN CORPORATION,

APPELLEE

CACI INTERNATIONAL INC. AND CACI PREMIER

TECHNOLOGY, INC.,

INTERVENORS

Consolidated with 08-7009

Appeals from the United States District Court

for the District of Columbia

(No. 05cv01165)

Susan L. Burke argued the cause for appellants. With her

on the briefs were Katherine Gallagher, Shereef Hadi Akeel, and

L. Palmer Foret.

Ari S. Zymelman argued the cause for appellee. With him

on the brief were F. Whitten Peters, Kannon K. Shanmugam,

and F. Greg Bowman.

2

J. William Koegel Jr. argued the cause for intervenors

CACI International Inc. and CACI Premier Technology, Inc.

With him on the brief was John F. O'Connor.

Before: GARLAND and KAVANAUGH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

Dissenting opinion filed by Circuit Judge GARLAND.

SILBERMAN, Senior Circuit Judge: Plaintiff Iraqi nationals

brought separate suits against two private military contractors

that provided services to the U.S. government at the Abu Ghraib

military prison during the war in Iraq. The district court granted

summary judgment in behalf of one of the contractors, Titan

Corp., on grounds that the plaintiffs’ state tort claims were

federally preempted. But the court denied summary judgment

on those grounds to the other contractor, CACI International Inc.

The court also dismissed claims both sets of plaintiffs made

under the Alien Tort Statute (which is appealed only by the

Titan plaintiffs) and reserved for further proceedings in the

CACI case that contractor’s immunity defense. We have

jurisdiction over this interlocutory appeal under 28 USC §§

1291 and 1292(b). We affirm the district court’s judgment in

behalf of Titan, but reverse as to CACI.

3

I

Defendants CACI and Titan contracted to provide in Iraq

interrogation and interpretation services, respectively, to the

U.S. military, which lacked sufficient numbers of trained

personnel to undertake these critical wartime tasks. The

contractors’ employees were combined with military personnel

for the purpose of performing the interrogations, and the military

retained control over the tactical and strategic parameters of the

mission. Two separate groups of plaintiffs, represented by the

named plaintiffs Haidar Muhsin Saleh and Ilham Nassir

Ibrahim, brought suit alleging that they or their relatives had

been abused by employees of the two contractors during their

detention and interrogation by the U.S. military at the Abu

Ghraib prison complex. While the allegations in the two cases

are similar, the Saleh plaintiffs also allege a broad conspiracy

between and among CACI, Titan, various civilian officials

(including the Secretary and two Undersecretaries of Defense),

and a number of military personnel, whereas the Ibrahim

plaintiffs allege only that CACI and Titan conspired in the

abuse.

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

4

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. And

although, for purpose of this appeal, we must credit plaintiffs’

allegations of detainee abuse, defendants point out–and it is

undisputed–that government investigations into the activities of

the apparently relevant Titan employees John Israel and Adel

Nakhla suggest that these individuals were not involved in

detainee abuse at all. Other linguists mentioned in plaintiffs’

briefs–“Iraqi Mike,” Etaf Mheisen, and Hamza Elsherbiny–are

not alleged to have engaged in abuse involving the plaintiffs.

Steven Stefanowicz, alleged in one set of complaints to have

been an employee of Titan, was in fact an employee of CACI.

And only one specified instance of activity that would arguably

fit the definition of torture (or possibly war crimes) is alleged

5

with respect to the actions of a CACI employee. Titan J.A. 567-

570.1

Plaintiffs brought a panoply of claims, including under the

Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et

seq., government contracting laws, various international laws

and agreements, and common law tort. In a thoughtful opinion,

District Judge Robertson dismissed all of the Ibrahim plaintiffs’

claims except those for assault and battery, wrongful death and

survival, intentional infliction of emotional distress, and

negligence. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C.

2005). Following our decisions in Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774 (D.C. Cir. 1984) (Edwards, J.,

concurring), and Sanchez-Espinoza v. Reagan, 770 F.2d 202

(D.C. Cir. 1985), the district court held that because there is no

consensus that private acts of torture violate the law of nations,

1

The Torture Victim Protection Act, § 3(b)(1), 28 U.S.C. § 1350,

defines “torture” as “any act, directed against an individual in the

offender’s custody or physical control, by which severe pain or

suffering (other than pain or suffering arising only from or inherent in,

or incidental to, lawful sanctions), whether physical or mental, is

intentionally inflicted on that individual for such purposes as

obtaining from that individual or a third person information or a

confession, punishing that individual for an act that individual or a

third person has committed or is suspected of having committed,

intimidating or coercing that individual or a third person, or for any

reason based on discrimination of any kind.” (emphasis added) See

Price v. Socialist People’s Libyan Arab Jamalhiriya, 294 F.3d 82, 91-

94 (D.C. Cir. 2002). There is an allegation that one of CACI’s

employees observed and encouraged the beating of a detainee’s soles

with a rubber hose, which could well constitute torture or a war crime.

6

such acts are not actionable under the ATS’s grant of

jurisdiction. Ibrahim, 391 F. Supp. 2d at 14-15.2

As for the remaining claims, the district court found that

there was, as yet, insufficient factual support to sustain the

application of the preemption defense, which the defendants had

asserted. The judge ordered limited discovery regarding the

military’s supervision of the contract employees as well as the

degree to which such employees were integrated into the

military chain of command. Id. at 19. A year later, the district

court dismissed the federal claims of the Saleh plaintiffs. Saleh

v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006). The two sets

of cases were consolidated for discovery purposes.

Following discovery, the contractors filed for summary

judgment, again asserting that all remaining claims against them

should be preempted as claims against civilian contractors

providing services to the military in a combat context. In the

absence of controlling authority, the district judge fashioned a

test of first impression, according to which this preemption

defense attaches only where contract employees are “under the

direct command and exclusive operational control of the military

chain of command.” Ibrahim v. Titan Corp., 556 F. Supp. 2d 1,

5 (D.D.C. 2007) (emphasis added). He concluded that Titan’s

employees were “fully integrated into [their] military units,” id.

at 10, essentially functioning “as soldiers in all but name,” id. at

3. Although CACI employees were also integrated with military

personnel and were within the chain of command, they were

nevertheless found to be subject to a “dual chain of command”

because the company retained the power to give “advice and

2

The ATS reads, in its entirety, “the district courts shall have

original jurisdiction of any civil action by an alien for a tort only,

committed in violation of the law of nations or a treaty of the United

States.” 28 U.S.C. § 1350.

7

feedback” to its employees and because interrogators were

instructed to report abuses up both the company and military

chains of command. Id. The CACI site manager, moreover,

said that he had authority to prohibit interrogations inconsistent

with the company ethics policy, which the district court deemed

to be evidence of “dual oversight.” Id. Thus, the remaining tort

claims were held preempted as to Titan but not as to CACI. Id.

The losing party in each case appealed, and we heard their

arguments jointly. We thus have before us two sets of appeals.

The first consists of the Iraqi plaintiffs’ appeals from the district

court’s decision in favor of Titan on both the preemption and

ATS issues. The second features CACI’s appeals from the

district court’s denial of its motion for summary judgment on

the basis of preemption. We have jurisdiction pursuant to 28

U.S.C. § 1291 over the former. As to the latter, the district court

has certified its denial of summary judgment for immediate

interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The

plaintiffs only half-heartedly object to the district judge’s

exercise of discretion under § 1292(b). Even if we were

inclined to withdraw this permission to appeal–which we are

not–we would still be required to rule on the appropriate test for

combatant activities preemption in the plaintiffs’ appeals against

the judgment for Titan. We also have jurisdiction over the

district judge’s dismissal of the ATS claim in the Titan case, but

not his corollary dismissal of the ATS claim in the CACI case;

the plaintiffs did not cross-appeal that decision.

We think the district judge properly focused on the chain of

command and the degree of integration that, in fact, existed

between the military and both contractors’ employees rather

than the contract terms–and affirm his findings in that regard.

We disagree, however, somewhat with the district court’s legal

test: “exclusive” operational control. That CACI’s employees

were expected to report to their civilian supervisors, as well as

8

the military chain of command, any abuses they observed and

that the company retained the power to give advice and feedback

to its employees, does not, in our view, detract meaningfully

from the military’s operational control, nor the degree of

integration with which CACI’s employees were melded into a

military mission. We also agree with the district court’s

disposition of the ATS claim against Titan.

II

We conclude that plaintiffs’ D.C. tort law claims are

preempted for either of two alternative reasons: (a) the Supreme

Court’s decision in Boyle; and (b) the Court’s other preemption

precedents in the national security and foreign policy field.

***

Although both defendants assert that they meet the district

court’s “direct command and exclusive operational control” test

for application of the preemption defense, CACI disputes the

appropriateness of that test, arguing that it does not adequately

protect the federal interest implicated by combatant activities.

In CACI’s view, the wartime interests of the federal government

are as frustrated when a contractor within the chain of command

exercises some level of operational control over combatant

activities as would be true if all possible operational influence

is exclusively in the hands of the military. For their part, the

Iraqi plaintiffs agree with the district court’s finding that CACI

exerted sufficient operational control over its employees as to

have been able to prevent the alleged prisoner abuse and thus

that the company should be subject to suit. As to Titan,

plaintiffs argue that the district court overlooked critical material

facts, including allegations that Titan breached its contract and

that the military lacked the authority to discipline Titan

employees.

9

As noted, both defendants asserted a defense based on

sovereign immunity, which the district court has reserved.

Presumably, they would argue that, notwithstanding the

exclusion of “contractors with the United States” from the

definition of “Federal agency” in the Federal Tort Claims Act

(“FTCA”)–which, of course, waives sovereign immunity–when

a contractor’s individual employees under a service contract are

integrated into a military operational mission, the contractor

should be regarded as an extension of the military for immunity

purposes. The Supreme Court in Boyle v. United Technologies

Corp., 487 U.S. 500 (1992), the primary case on which

defendants rely for their preemption claim, reserved the question

whether sovereign immunity could be extended to non-

governmental employees, id. at 505 n.1, even in a case where

the contractor provided a discrete product to the military.

We agree with the defendants (and the district judge) that

plaintiffs’ common law tort claims are controlled by Boyle.

There, a lawsuit under Virginia tort law was brought in federal

district court in behalf of a Marine pilot who was killed when his

helicopter crashed into the water and he was unable to open the

escape hatch (which opened out rather than in). The defendant

that manufactured the helicopter alleged that the door was

provided in accordance with Department of Defense

specifications and, therefore, Virginia tort law was preempted.

The Supreme Court agreed; it reasoned that first “uniquely

federal interests” were implicated in the procurement of military

equipment by the United States, and once that was recognized,

a conflict with state law need not be as acute as would be true if

the federal government was legislating in an area traditionally

occupied by the states.

Nevertheless, the court acknowledged that a significant

conflict must exist for state law to be preempted. In Boyle, the

court observed that the contractor could not satisfy both the

10

government’s procurement design and the state’s prescribed

duty of care. It looked to the FTCA’s exemption to the waiver

of sovereign immunity for claims “based upon the exercise or

performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or employee of

the Government, whether or not the discretion involved be

abused,” 28 U.S.C. § 2680(a), to find a statutory provision that

articulated the “outlines” of the significant conflict between

federal interests and state law. Boyle, 487 U.S. at 511. Since

the selection of the appropriate design of military equipment

was obviously a governmental discretionary function and a

lawsuit against a contractor that conformed to that design would

impose the same costs on the government indirectly that the

governmental immunity would avoid, the conflict is created.

The crucial point is that the court looked to the FTCA

exceptions to the waiver of sovereign immunity to determine

that the conflict was significant and to measure the boundaries

of the conflict. Our dissenting colleague contends repeatedly

that the FTCA is irrelevant because it specifically excludes

government contractors. See Dissent Op. at 8, 15-16, 19. But,

in that regard, our colleague is not just dissenting from our

opinion, he is quarreling with Boyle where it was similarly

argued that the FTCA could not be a basis for preemption of a

suit against contractors. See Supplemental Brief of Petitioner at

10-11, 1988 WL 1026235; see also 487 U.S. at 526-27

(Brennan, J., dissenting). 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

3

Although the combatant activities exception was the only FTCA

exception briefed, it was suggested at oral argument that other

provisions could conceivably conflict with the plaintiffs’ claims,

11

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

potentially including 28 U.S.C. § 2680(k) (exempting from the

immunity waiver “any claim arising in a foreign country”). Of course,

since that issue has not been properly raised, we do not reach it.

4

See, e.g., O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504,

507 (1951); U.S. Industries/Federal Sheet Metal, Inc. v. Director,

OWCP, 455 U.S. 608, 615 (1982). In the District of Columbia, scope

of employment law is expansive enough “to embrace any intentional

tort arising out of a dispute that was originally undertaken on the

employer’s behalf.” Council on American Islamic Relations v.

Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (quoting Johnson v.

Weinberg, 434 A.2d 404, 409 (D.C. 1982)).

12

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”).

To be sure, to say that tort duties of reasonable care do not

apply on the battlefield is not to say that soldiers are not under

any legal restraint. Warmaking is subject to numerous

proscriptions under federal law and the laws of war. Yet, it is

clear that all of the traditional rationales for tort law–deterrence

of risk-taking behavior, compensation of victims, and

punishment of tortfeasors–are singularly out of place in combat

situations, where risk-taking is the rule. Koohi, 976 F.2d at

1334-35; see also, Bentzlin v. Hughes Aircraft Co., 833 F. Supp.

1486, 1493 (C.D. Cal. 1993). In short, the policy embodied by

the combatant activities exception is simply the elimination of

tort from the battlefield, both to preempt state or foreign

13

regulation of federal wartime conduct and to free military

commanders from the doubts and uncertainty inherent in

potential subjection to civil suit. And the policies of the

combatant activities exception are equally implicated whether

the alleged tortfeasor is a soldier or a contractor engaging in

combatant activities at the behest of the military and under the

military’s control. Indeed, these cases are really indirect

challenges to the actions of the U.S. military (direct challenges

obviously are precluded by sovereign immunity).

The nature of the conflict in this case is somewhat different

from that in Boyle–a sharp example of discrete conflict in which

satisfying both state and federal duties (i.e., by designing a

helicopter hatch that opens both inward and outward) was

impossible. In the context of the combatant activities exception,

the relevant question is not so much whether the substance of

the federal duty is inconsistent with a hypothetical duty imposed

by the state or foreign sovereign. Rather, it is the imposition

per se of the state or foreign tort law that conflicts with the

FTCA’s policy of eliminating tort concepts from the battlefield.

The very purposes of tort law are in conflict with the pursuit of

warfare. Thus, the instant case presents us with a more general

conflict preemption, to coin a term, “battle-field preemption”:

the federal government occupies the field when it comes to

warfare, and its interest in combat is always “precisely contrary”

to the imposition of a non-federal tort duty. Boyle, 487 U.S. at

500.

Be that as it may, there are specific conflicts created if tort

suits are permitted. Of course, the costs of imposing tort

liability on government contractors is passed through to the

American taxpayer, as was recognized in Boyle. More

important, whether the defendant is the military itself or its

contractor, the prospect of military personnel being haled into

lengthy and distracting court or deposition proceedings is the

14

same where, as here, contract employees are so inextricably

embedded in the military structure. Such proceedings, no doubt,

will as often as not devolve into an exercise in finger-pointing

between the defendant contractor and the military, requiring

extensive judicial probing of the government’s wartime policies.

Allowance of such suits will surely hamper military flexibility

and cost-effectiveness, as contractors may prove reluctant to

expose their employees to litigation-prone combat situations.5

Further, given the numerous criminal and contractual

enforcement options available to the government in responding

to the alleged contractor misconduct–which options the

government evidently has foregone–allowance of these claims

will potentially interfere with the federal government’s authority

to punish and deter misconduct by its own contractors. See, e.g.,

Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 350-53

(2001). And as noted above, the Army Claims Service has

confirmed that plaintiffs will not be totally bereft of all remedies

for injuries sustained at Abu Ghraib, as they will still retain

rights under the Foreign Claims Act. Thus, in light of these

alternative remedies, it is simply not accurate to say, as the

dissent does, that our decision today leaves the field without any

law at all, Dissent Op. at 30-31.

Just as in Boyle, however, the “scope of displacement” of

the preempted non-federal substantive law must be carefully

tailored so as to coincide with the bounds of the federal interest

being protected. In that case, the Supreme Court promulgated

a three-part test to determine when preemption is required in the

design defects context: “Liability for design defects in military

equipment cannot be imposed, pursuant to state law, when (1)

5

The dissent asserts that such conflicts can be ameliorated

through a deus ex machina of litigation management. Dissent Op. at

25-26. We think that is an illusion.

15

the United States approved reasonably precise specifications; (2)

the equipment conformed to these specifications; and (3) the

supplier warned the United States about the dangers in the use

of the equipment that were known to the supplier but not to the

United States.” Boyle, 487 U.S. at 512. This test served to

ensure that a “discretionary function” of the government was

truly at stake and to eliminate any perverse incentive for a

manufacturer to fail to disclose knowledge of potential risks. Id.

at 512-13. Here, the district court concluded that the federal

interest in shielding the military from battlefield damage suits is

sufficiently protected if claims against contract employees

“under the direct command and exclusive operational control of

the military chain of command such that they are functionally

serving as soldiers” are preempted. Ibrahim, 556 F. Supp. 2d at

5.

We agree with CACI that this “exclusive operational

control” test does not protect the full measure of the federal

interest embodied in the combatant activities exception. Surely,

unique and significant federal interests are implicated in

situations where operational control falls short of exclusive. 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. Indeed, a

parallel argument drawn from the Eleventh Circuit for a rule that

would preclude suit “only if . . . the contractor did not

participate, or participated only minimally, in the design of the

defective equipment” was rejected by the Supreme Court in

Boyle as “not a rule designed to protect the federal interest

embodied in the ‘discretionary function’ exemption.” Whether

or not the contractors participated in the design of the helicopter

door, the government official made the policy judgment, and it

is that judgment that is protected by preemption. 487 U.S. at

513.

16

The district court’s test as applied to CACI and Titan,

moreover, creates a powerful (and perverse) economic incentive

for contractors, who would obviously be deterred from

reporting abuse to military authorities if such reporting alone is

taken to be evidence of retained operational control. That

would be quite anomalous since even uniformed military

personnel are obliged to refuse manifestly unlawful orders, see

United States v. Calley, 22 U.S.C.M.A. 534, 544 (1973), and,

moreover, are encouraged to report such outside of the chain of

command to inspector generals, see, e.g., 10 U.S.C. § 1034.

Again we see an analogy to Boyle. As noted, the Eleventh

Circuit would have allowed the contractor a preemption defense

only if the contractors did not participate at all in the design of

the helicopter door. The Supreme Court pointed out that that

test would create an analogous perverse incentive, discouraging

contractors from participating in design features where their

expertise would help to better the product. Boyle, 487 U.S. at

512-13.

We think that 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. We recognize that a service contractor

might be supplying services in such a discrete manner–perhaps

even in a battlefield context–that those services could be judged

separate and apart from combat activities of the U.S. military.6

6

Plaintiffs contend that government contractor preemption should

be limited to procurement contracts (as in Boyle or Koohi) and should

not extend to service contracts, as here. While some lower courts have

limited preemption in this manner, see, e.g., McMahon v. Presidential

airways Inc., 460 F. Supp. 2d. 1315, 1331 (M.D. Fla. 2006); Fisher v.

Halliburton, 390 F. Supp. 2d 610, 615 (S.D. Tex. 2005), we agree

17

That would be analogous to the court’s recognition in Boyle that

a supply contractor that had a contract to provide a product

without relevant specifications would not be entitled to the

preemption defense if its sole discretion, rather than the

government’s, were challenged (although we are still puzzled

at what interest D.C., or any state, would have in extending its

tort law onto a foreign battlefield).

We believe, compare Dissent Op. at 21-22, our decision is

consistent with statements made by the Department of Defense

in a rulemaking proceeding after the alleged events in this case

in which it stated that “[t]he public policy rationale behind Boyle

does not apply when a performance-based statement of work is

used in a services contract, because the Government does not, in

fact, exercise specific control over the actions and decisions of

the contractor . . . .” Contractor Personnel Authorized to

Accompany U.S. Armed Forces, 73 Fed. Reg. 16,764, 16,768

(Mar. 31, 2008) (emphasis supplied). Because performance-

based statements of work “describe the work in terms of the

required results rather than either ‘how’ the work is to be

accomplished or the number of hours to be provided,” 48 C.F.R.

§ 37.602(b)(1), by definition, the military could not retain

command authority nor operational control over contractors

working on that basis and thus tort suits against such contractors

would not be preempted under our holding. Indeed, there is no

with the Eleventh Circuit, which has held that the question of

preemption vel non is not contingent on whether a contract is for

goods or services. Hudgens v. Bell Helicopters, 328 F.3d 1329, 1345

(11th Cir. 2003) (holding claims that service contractor negligently

maintained military helicopters preempted by the discretionary

functions exception); see also, Ibrahim, 556 F. Supp. 2d at 4 n.3

(following Hudgens). Rather, “the question is whether subjecting a

contractor to liability under state tort law would create a significant

conflict with a unique federal interest.” Hudgens, 328 F.3d at 1334.

18

indication from the department’s statements that it considered,

much less ruled out, whether tort suits against service

contractors working within the military chain of command

should be preempted on the basis of the FTCA’s “combatant

activities” exception.

It is argued that because the executive branch has not

chosen to intervene in this suit or file an amicus brief on behalf

of defendants, this case differs from Boyle. But the government

did not participate in Boyle below the Supreme Court, which has

also been the case in some other proceedings. See e.g., Nat'l

Foreign Trade Council v. Natsios, 181 F.3d 38, 54 n.9 (1st Cir.

1999), aff’d sub nom. Crosby v. Nat’l Foreign Trade Council,

530 U.S. 363; Davidowitz v. Hines, 30 F.Supp. 470 (D. Pa.

1939), aff’d 312 U.S. 52; see also Zschernig v. Miller, 389 U.S.

429, 443 (1968) (finding Oregon statute preempted even though

Solicitor General argued as amicus that application of the statute

did not “unduly interfere[] with the United States’ conduct of

foreign relations” because “the basic allocation of power

between the States and the Nation . . . cannot vary from day to

day with the shifting winds at the State Department”) (Stewart,

J. concurring). To be sure, the executive branch has broadly

condemned the shameful behavior at Abu Ghraib documented

in the now infamous photographs of detainee abuse. This

disavowal does not, however, bear upon the issue presented in

this tort suit against these defendants. Indeed, the government

acted swiftly to institute court-martial proceedings against

offending military personnel, but no analogous disciplinary,

criminal, or contract proceedings have been so instituted against

the defendants. This fact alone indicates the government’s

perception of the contract employees’ role in the Abu Ghraib

scandal. In any event, Congress at least has indicated that

common law tort suits “arising out of” combatant activities

conflict with the very real interests of the military in time of

war.

19

Our holding is also consistent with the Supreme Court’s

recent decision in Wyeth v. Levine, 555 U.S. __ (2009). In that

case, the Court held that federal law did not preempt a patient’s

state law inadequate warning claim against a drug manufacturer,

because compliance with both the state and federal duties was

not impossible and because the manufacturer’s interpretation of

congressional intent was overly broad. The Court cited two

“cornerstones” of preemption jurisprudence, both of which

helpfully illuminate the distinctions between the instant case and

Wyeth. Id., slip op. at 8. The first is congressional intent,

which, while murky at best in the context of federal drug

regulations, is much clearer in the case of the statutory text of

the combatant activities exception. Id. And the second is the

strong presumption against preemption in fields that the states

have traditionally occupied but where Congress has legislated

nonetheless. Id. Unlike tort regulation of dangerous or

mislabeled products, the Constitution specifically commits the

Nation’s war powers to the federal government, and as a result,

the states have traditionally played no role in warfare. We think

that these “cornerstones” of preemption secure the foundation of

our holding.

The federal government’s interest in preventing military

policy from being subjected to fifty-one separate sovereigns

(and that is only counting the American sovereigns) is not only

broad–it is also obvious. Plaintiffs did not, at the briefing stage,

even identify which sovereign’s substantive common law of tort

should apply to their case although at oral argument counsel

explained that, in its view, D.C. law applied.7 Defendants’

actions thus were at a minimum potentially subject to the laws

of fifty states plus the District of Columbia, perhaps even U.S.

7

Our dissenting colleague suggests that plaintiffs are ill-advised

to base their tort claims on D.C. law. See Dissent Op. at 28-29. But

again, we must take the case plaintiffs bring before us.

20

overseas dependencies and territories (if detainee counsel’s

reliance at oral argument on “all law” is to be credited). And as

we have pointed out, on appeal plaintiffs rely on general claims

of abuse which include assault and battery, negligence, and the

intentional infliction of emotional distress. The application of

those tort concepts surely differ in 51 jurisdictions. We can also

imagine many other causes of action, which vary by

jurisdiction, that under the dissent’s standard could apply to

employees of government contractors on the battlefield such as

defamation, invasion of privacy, etc. Indeed, in light of the

District’s choice of law principles, see Drs. Groover, Christie &

Merrit, P.C. v. Burke, 917 A.2d 1110, 1117 (D.C. 2007)

(applying a “government interests analysis”), it is far from

unlikely that the applicable substantive law would be that of

Iraq.

The dissent suggests that some jurisdictions’ tort laws –

which, are not specified – might be selectively preempted, see

Dissent Op. at 27, but apparently not even “intentional infliction

of emotional distress.” The dissent’s focus on the notoriety of

Abu Ghraib and its failure to specify which torts would be

preempted runs the risk of fashioning an encroachment with

federal interests that is like “a restricted railroad ticket, good for

this day and train only.” Smith v. Allwright, 321 U.S. 649, 669

(1944) (Roberts, J., dissenting).

***

Arguments for preemption of state prerogatives are

particularly compelling in times of war. In that regard, even in

the absence of Boyle the plaintiffs’ claims would be preempted.

The states (and certainly foreign entities) constitutionally and

traditionally have no involvement in federal wartime policy-

making. See U.S. Const. Art I, § 10; see also, American Ins.

Ass’n v. Garamendi, 539 U.S. 396, 420 n.11 (2003) (“If a State

21

were simply to take a position on a matter of foreign policy with

no serious claim to be addressing a traditional state

responsibility, field preemption might be the appropriate

doctrine, whether the National Government had acted and, if it

had, without reference to the degree of any conflict, the principle

having been established that the Constitution entrusts foreign

policy exclusively to the National Government.”); Crosby v.

Nat’l Foreign Trade Council, 530 U.S. 363, 387-88 (2000) (“A

failure to provide for preemption expressly may reflect nothing

more than the settled character of implied preemption doctrine

that courts will dependably apply.”); Japan Line, Ltd. v. County

of Los Angeles, 441 U.S. 434, 447-49 (1979); Zschernig v.

Miller, 389 U.S. 429 (1968); Hines v. Davidowitz, 312 U.S. 52,

63 (1941) (“Our system of government . . . imperatively requires

that federal power in the field affecting foreign relations be left

entirely free from local interference.”). On the other side of the

balance, the interests of any U.S. state (including the District of

Columbia) are de minimis in this dispute–all alleged abuse

occurred in Iraq against Iraqi citizens. The scope of

displacement under our “ultimate military authority” test is thus

appropriately broader than either Boyle’s discretionary functions

test or the rule proposed by the district court. The breadth of

displacement must be inversely proportional to state interests,

just as it is directly proportional to the strength of the federal

interest.

While the dissent suggests that the cases cited above are

inapposite because the “preempted state laws conflicted with

express congressional or executive policy,” Dissent Op. at 16-

17, the assertion is simply not accurate.8 In Garamendi, for

8

Neither are we persuaded by our dissenting colleague’s

suggestion that these cases are of little precedential weight because the

state laws in the above cited cases were “specifically targeted at issues

concerning the foreign relations of the United States.” Dissent Op. at

22

example, the Supreme Court held that a California statute

requiring insurance companies doing business in that state to

disclose information concerning policies it sold in Europe

between 1920 to 1945 was preempted by federal law. 539 U.S.

at 401. As the source of preemption, the Court relied on an

executive agreement between the United States and Germany.

The agreement provided that Germany would form and provide

funding for a foundation which would adjudicate Holocaust-era

insurance claims. Id. at 406. For its part, the United States

agreed that, should any plaintiff file a Holocaust-era insurance

claim against a German company in U.S. court, the executive

would submit a non-binding statement indicating “that U.S.

policy interests favor dismissal on any valid legal ground.” Id.

The state and federal law thus posed no express conflict – it

would have been entirely possible for insurance companies to

disclose information under California’s legislation and still

benefit from the national government’s intervention should suit

be filed against them in U.S. courts. Nonetheless, the Supreme

Court held that the California statute was preempted because the

California statute “employs a different state system of economic

pressure and in doing so undercuts the President’s diplomatic

discretion and choice he has made exercising it.” Id. at 423-24

(quotation omitted); see also id. at 427 (“The basic fact is that

California seeks to use an iron fist where the President has

16. Insofar as this lawsuit pursues contractors integrated within

military forces on the battlefield, we believe it similarly interferes with

the foreign relations of the United States as well as the President’s war

making authority. Moreover, contrary to the dissent, it is a black-letter

principle of preemption law that generally applicable state laws may

conflict with and frustrate the purposes of a federal scheme just as

much as a targeted state law. See Riegel v. Medtronic, Inc., 128 S. Ct.

999, 1008 (2008); Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443

(2005); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521 (1992)

(plurality opinion). The Supreme Court’s preemption cases thus reject

the dissent’s attempted distinction.

23

consistently chosen kid gloves.”). While the dissent attempts to

distinguish Garamendi by pointing out that the Supreme Court

characterized the state statute at issue there as posing a “clear

conflict” with federal policy, the same words could be used here.

Similarly, in Crosby, the Supreme Court held that a

Massachusetts statute prohibiting the state from purchasing

goods and services from companies doing business in Burma

was preempted by a federal statute that inter alia gave the

President the power to, upon certain conditions, prohibit United

States persons from investing in Burma. 530 U.S. at 367-69. As

in Garamendi, despite the fact that companies could comply

with both state and federal laws, the Court explained that the

state statute was preempted because it was “at odds with . . . the

federal decision about the right degree of pressure to employ.”

Id. In other words, in both Crosby and Garamendi, preemption

arose not because the state law conflicted with the express

provisions of federal law, but because, under the circumstances,

the very imposition of any state law created a conflict with

federal foreign policy interests. Much the same could be said

here. Not only are these cases not inapposite, they provide an

alternative basis for our holding.9

9

Even had plaintiffs focused and limited their allegations before

us to actual torture, we note that Congress has passed comprehensive

legislation dealing with the subject of war crimes, torture, and the

conduct of U.S. citizens acting in connection with military activities

abroad. Through acts such as the Torture Victim Protection Act, 28

U.S.C. § 1350, the Military Commissions Act, 10 U.S.C. § 948a et

seq, the federal criminal torture statute, 18 U.S.C. § 2340-2340A, the

War Crimes Act, 18 U.S.C. § 2441, the Foreign Claims Act, 10

U.S.C. § 2734, and the Uniform Code of Military Justice, 10

U.S.C. § 801 et seq, Congress has created an extensive body of law

with respect to allegations of torture. But Congress has declined to

create a civil tort cause of action that plaintiffs could employ. In the

TVPA, for example, Congress provided a cause of action whereby

24

We therefore reverse the district court’s holding as to CACI

and affirm its Titan holding on a broader rationale.

III

It will be recalled that our jurisdiction to entertain the ATS

issue extends only to the plaintiffs’ appeals against Titan and not

to CACI’s appeals from the district court’s denial of its

summary judgment motion on preemption grounds. The statute

is a simple, if mysterious, one. It states, “the district court shall

have original jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations or a treaty of

the United States.” 28 U.S.C. § 1350. The Supreme Court

recently has wrestled with its meaning and its scope. Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004). Appellants argue that

the district court erred in dismissing their claims against Titan

under this statute based on their reading of Sosa. Titan argues

that the district court correctly followed our precedents in Tel-

Oren, 726 F.2d 774 (D.C. Cir. 1984) (Edwards, J., concurring),

and Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir.

1985), which conclude that the ATS provides a cause of action

against states but not private persons and which survive the

Supreme Court’s analysis in Sosa.

U.S. residents could sue foreign actors for torture, but Congress

exempted American government officers and private U.S. persons

from the statute. Congress has also adopted criminal statutes that

would apply to these defendants had they committed acts of torture,

see 18 U.S.C. §§ 2340A, 2241, 3261, but Congress has not created a

corresponding tort cause of action. Moreover, even in the years since

Abu Ghraib, Congress has not enacted a civil cause of action allowing

suit for torture, it only has extended the UCMJ to cover military

contractors. 10 U.S.C. § 802.

25

The latter case involved a tort claim brought, inter alia,

against a Mexican national, Sosa, who purportedly acted on the

DEA’s behalf to abduct a Mexican physician accused of torture

and murder and bring him from Mexico to stand trial in the

United States. Sosa was acquitted of criminal charges and then

brought his suit. The Supreme Court, reversing the Ninth

Circuit, held that four DEA agents also named as defendants

were immune from suit because of an exception to the FTCA

waiver of sovereign immunity for actions in foreign countries.10

Then it turned to the claim against Sosa under the ATS. Sosa

and the U.S. government argued that the ATS was only a

jurisdictional grant; it did not create any substantive law, but the

Court disagreed, concluding that when the statute was passed by

the first Congress as part of the Judiciary Act of 1789, three

limited causes of action were contemplated: piracy, infringement

of ambassadorial rights, and violation of safe conduct.11 And

more important for our case, the Court opened the door a crack

to the possible recognition of new causes of action under

international law (such as, perhaps, torture) if they were firmly

grounded on an international consensus. Sosa, 542 U.S. at 732-

33. The court noted, but declined to decide, the issue which

divides us from the Second Circuit, whether a private actor, as

opposed to a state, could be liable under the ATS. Id. at 733

n.20.

The holding in Sosa, however, was to reject the ATS claim

that Alvarez was arbitrarily arrested and detained in Mexico in

violation of international law because, at the threshold, there

10

Apparently, Sosa never argued for federal preemption of the

claims against him on grounds analogous to the instant case.

11

There is some indication that the thoroughly modern act of

aircraft hijacking may also be on this short list of universal concerns.

See, e.g., Kadić v. Karădzíc, 70 F.3d 232, 240 (2d Cir. 1995)).

26

was no settled norm of international law bearing on that question

that was analogous to the consensus that existed in 1789 with

respect to the three concerns that motivated Congress.

Appellants argue that despite the footnote reserving the

issue dividing the D.C. and Second Circuits, since the Court

went on to analyze whether an ATS cause of action existed

against Alvarez, it must have implicitly determined that a

private actor could be liable. But that is not persuasive: courts

often reserve an issue they don’t have to decide because, even

assuming arguendo they favor one side, that side loses on

another ground.

Plaintiffs rely heavily on the Second Circuit’s opinion in

Kadić v. Karădzíc, 70 F.3d 232, 239 (2d Cir. 1995)), which held

that for certain categories of action, including genocide, the

scope of the law of nations is not confined solely to state action

but reaches conduct “whether undertaken by those acting under

the auspices of a state or only as private individuals.” Despite

the apparent breadth of this formulation, it must be remembered

that in Kadić, the defendant was the self-proclaimed President

of the Serbian Republic of Bosnia-Herzegovina, so the holding

is not so broad. While Srpska was not yet internationally

recognized as a state–thus technically rendering its militia a

private entity–a quasi-state entity such as Radovan Karădzíc’s

militia is easily distinguishable from a private actor such as

Titan.

The Sosa Court, while opening the door a crack to the

expansion of international law norms to be applied under the

ATS, expressed the imperative of judicial restraint. It was

pointed out that federal courts today–as opposed to colonial

times–are and must be reluctant to look to the common law,

including international law, in derogation of the acknowledged

role of legislatures in making policy. Bearing that caution in

27

mind, and in light of the holding in Sosa, we have little difficulty

in affirming the district judge’s dismissal of the ATS claim

against Titan. As we have noted, appellants’ claim–as it

appeared in their briefs and oral argument before us–is

stunningly broad. They claim that any “abuse” inflicted or

supported by Titan’s translator employees on plaintiff detainees

is condemned by a settled consensus of international law. At

oral argument, counsel claimed that included even assault and

battery.12 We think that is an untenable, even absurd,

articulation of a supposed consensus of international law.

(Indeed, it is doubtful that we can discern a U.S. national

standard of treatment of prisoners–short of the Eighth

Amendment.) In Price v. Socialist People’s Libyan Arab

Jamalhiriya, 294 F.3d 82, 93-4 (D.C. Cir. 2002), we specifically

held that the Libyan police’s very rough and abusive handling

of American detainees was not a violation of the Torture Victim

Protection Act (“TVPA”), § 3(b)(1), 28 U.S.C. § 1350.

Although appellants there did not make a claim under the ATS,

if their treatment did not violate American law, perforce they

could not draw upon an international consensus.

Assuming, arguendo, that appellants had adequately alleged

torture (or war crimes), there still remains the question whether

12

“Court: So, your allegations are broader than torture.

Counsel: Yes. Your Honor, the allegations turn on the physical

force whether or not those are labeled definitionally as torture or

not doesn’t really matter because we’re talking about assault and

batteries. And so, you know, if for example, you know,

something like–

Court: So, assault and battery would be covered by the law of

nations, as well. . . . Is that correct?

Counsel: . . . Yes. In this context it would be . . . .”

28

they would run afoul of Sosa’s comments. Although torture

committed by a state is recognized as a violation of a settled

international norm, that cannot be said of private actors. See,

e.g., Sanchez-Espinoza, 770 F.2d at 206-7; see also, Convention

Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment art. I, para. 1, Dec. 10, 1984, 108 Stat.

382, 1465 U.N.T.S. 85 (limiting definition of torture to acts by

“a public official or other person acting in an official capacity”);

TVPA, § 2(a), 28 U.S.C. § 1350 (establishing liability

exclusively for individuals “under actual or apparent authority,

or color of law, of any foreign nation”).13

Alternatively, it is asserted that defendants, while private

parties, acted under the color of law. Although we have not held

either way on this variation, in Tel-Oren, Judge Edwards’

concurring opinion, while not a court holding, suggests that the

ATS extends that far. 726 F.2d at 793. And the Supreme Court

in Sosa implied that it might be significant for Sosa to establish

that Alvarez was acting “on behalf of a government.” 542 U.S.

at 735 (although which government–the U.S. or Mexico–is

unclear). Of course, plaintiffs are unwilling to assert that the

contractors are state actors. Not only would such an admission

make deep inroads against their arguments with respect to the

preemption defense, it would virtually concede that the

contractors have sovereign immunity. Thus, as the district court

recognized, appellants are caught between Scylla and Charybdis:

they cannot artfully allege that the contractors acted under color

13

Even if torture suits cannot be brought against private

parties–at least not yet–it may be that “war crimes” have a broader

reach. Of course, we reiterate that appellants have not brought to our

attention any specific allegations of such behavior. Presumably for

this reason, when the district court considered appellants’ ATS

argument, it analyzed only an asserted international law norm against

torture, not war crimes.

29

of law for jurisdictional purposes while maintaining that their

action was private when the issue is sovereign immunity.

Ibrahim, 391 F. Supp. 2d at 14 (citing Sanchez-Espinoza, 770

F.2d at 207).

In light of the Supreme Court’s recognition of Congress’

superior legitimacy in creating causes of action, see Sosa, 542

U.S. at 725-28, we note that it is not as though Congress has

been silent on the question of torture or war crimes. Congress

has frequently legislated on this subject in such statutes as the

TVPA, the Military Commissions Act, 10 U.S.C. § 948a et seq.,

the federal torture statute, 18 U.S.C. 2340-2340A, the War

Crimes Act, 18 U.S.C. § 2441, and the Uniform Code of

Military Justice, 10 U.S.C. § 801 et seq., but Congress has never

created this cause of action. Perhaps most relevant is the TVPA,

in which Congress provided a cause of action whereby U.S.

residents could sue foreign states for torture, but did not–and we

must assume that was a deliberate decision–include as possible

defendants either American government officers or private U.S.

persons, whether or not acting in concert with government

employees. We note that in his signing statement for the TVPA,

President George H. W. Bush stated: “I am signing the bill

based on my understanding that the Act does not permit suits for

alleged human rights violations in the context of United States

military operations abroad . . . .” Statement by President of the

United States, Statement by President George [H. W.] Bush

upon Signing H.R. 2092, 1992 U.S.C.C.A.N. 91 (Mar. 12, 1992).

The judicial restraint required by Sosa is particularly

appropriate where, as here, a court’s reliance on supposed

international law would impinge on the foreign policy

prerogatives of our legislative and executive branches. See, e.g.,

Garamendi, 539 U.S. at 413-15; Zschernig, 389 U.S. at 440-41.

As the Sosa Court explained: “Since many attempts by federal

courts to craft remedies for the violation of new norms of

30

international law would raise risks of adverse foreign policy

consequences, they should be undertaken, if at all, with great

caution.” Sosa, 542 U.S. at 727-28.14

Finally, appellants’ ATS claim runs athwart of our

preemption analysis which is, after all, drawn from

congressional stated policy, the FTCA. If we are correct in

concluding that state tort law is preempted on the battlefield

because it runs counter to federal interests, the application of

international law to support a tort action on the battlefield must

be equally barred. To be sure, ATS would be drawing on

federal common law that, in turn, depends on international law,

so the normal state preemption terms do not apply. But federal

executive action is sometimes treated as “preempted” by

legislation. See, e.g., Chamber of Commerce of U.S. v. Reich, 74

F.3d 1322, 1332-39 (D.C. Cir. 1996). Similarly, an elaboration

of international law in a tort suit applied to a battlefield is

preempted by the same considerations that led us to reject the

D.C. tort suit.

IV

For the aforementioned reasons, the judgment of the district

court as to Titan is affirmed. The judgment as to CACI is

14

We note that the Justice Department, in its brief before the

Ninth Circuit in the Sosa matter, took the position that “the [ATS] is

not intended as a vehicle for U.S. courts to judge the lawfulness of

U.S. government actions abroad in defense of national security[,] and

any remedies for such actions are appropriately matters for resolution

by the political branches, not the courts.” Brief for the United States

as Amicus Curiae in Support of Reversal of the Judgment against

Defendant-Appellant Jose Francisco Sosa, Alvarez-Machain v. Sosa,

No. 99-56880 (9th Cir. Mar. 20, 2000).

31

reversed in the accompanying order. Thus, plaintiffs’ remaining

claims are dismissed.

So ordered.

GARLAND, Circuit Judge, dissenting: The plaintiffs in these

cases allege that 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.

At the current stage of the litigation, we must accept these

allegations as true. The plaintiffs do not contend that the United

States military authorized or instructed the contractors to engage

in such acts. No Executive Branch official has defended this

conduct or suggested that it was employed to further any

military purpose. To the contrary, both the current and previous

Administrations have repeatedly and vociferously condemned

the conduct at Abu Ghraib as contrary to the values and interests

of the United States. So, too, has the Congress.

No act of Congress and no judicial precedent bars the

plaintiffs from suing the private contractors -- who were neither

soldiers nor civilian government employees. Indeed, the only

statute to which the defendants point expressly excludes private

contractors from the immunity it preserves for the government.

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.

Under the circumstances of these cases, there is no warrant

for displacing the ordinary operation of state law and dismissing

the plaintiffs’ complaints solely on preemption grounds.

Accordingly, I would affirm the district court’s denial of

summary judgment as to CACI and reverse its grant of summary

judgment in favor of Titan.

2

I

Following the 2003 invasion of Iraq, the United States took

over Abu Ghraib prison and used it as a detention facility.

According to official Department of Defense (DOD) reports,

“numerous incidents of sadistic, blatant, and wanton criminal

abuses were inflicted on several detainees” at Abu Ghraib

between October and December 2003. MAJ. GEN. ANTONIO M.

TAGUBA, ARTICLE 15-6 INVESTIGATION OF THE 800TH MILITARY

POLICE BRIGADE 16 (2004). Those reports noted the

participation of contractor personnel in the abuses and

specifically identified Titan and CACI employees as being

among the perpetrators. Id. at 48; MAJ. GEN. GEORGE R. FAY,

AR 15-6 INVESTIGATION OF THE ABU GHRAIB DETENTION

FACILITY AND 205TH MILITARY INTELLIGENCE BRIGADE 72-73,

79, 81-82, 84, 86, 87, 89, 130-34 (2004) [hereinafter REPORT OF

MAJ. GEN. FAY].

Responding to the release of graphic photographs of the

conduct at Abu Ghraib, President George W. Bush declared that

“the practices that took place in that prison are abhorrent and

they don’t represent America.” White House, Press Release,

President Bush Meets with Al Arabiya Television, 2004 WLNR

2540883 (May 5, 2004). Concerned that those “who want to

dislike America will use this as an excuse to remind people

about their dislike,” he assured “[t]he people of the Middle East

. . . that we will investigate fully, that we will find out the truth

. . . and [that] justice will be served.” Id. Secretary of Defense

Donald Rumsfeld, testifying before Congress, similarly

condemned the abuses as “inconsistent with the values of our

nation.” Donald H. Rumsfeld, Testimony Before the Senate and

House Armed Services Committees 1 (May 7, 2004).1 He, too,

1

Available at http://armed-services.senate.gov/statemnt/

2004/May/Rumsfeld.pdf.

3

stressed the damage “[t]o the reputation of our country,” but said

that “this is also an occasion to demonstrate to the world the

difference between those who believe in democracy and human

rights and those who believe in rule by the terrorist code. . . .

Part of [our] mission -- part of what we believe in -- is making

sure that when wrongdoing or scandal occur, that they are not

covered up, but exposed, investigated, publicly disclosed -- and

the guilty brought to justice.” Id. at 1, 6. Congress expressed

the same sentiments.2

The seventeen named plaintiffs in the cases now before us

contend that they (or their deceased husbands) were among the

detainees who were subjected to the abuses that the President

and Secretary of Defense decried. According to their

complaints, they are Iraqi nationals (or their widows) who were

detained at Abu Ghraib and eventually released without charge.

The defendants are two private American companies, CACI and

Titan. Pursuant to government contracts, CACI provided

interrogators and Titan provided interpreters who worked at Abu

Ghraib.

The plaintiffs contend that CACI and Titan employees

subjected them to the following acts, among many others:

“[T]ortur[ing] [Plaintiff Ibrahim’s husband] by

repeatedly inflict[ing] blows and other injuries to his

2

See S. Res. 356, 108th Cong. (2004) (“condemn[ing] in the

strongest possible terms the despicable acts at Abu Ghraib prison”);

H.R. Res. 627, 108th Cong. (2004) (declaring that the abuses at Abu

Ghraib “are offensive to the principles and values of the American

people and the United States military . . . and contradict the policies,

orders, and laws of the United States and the United States military

and undermine the ability of the United States military to achieve its

mission in Iraq”).

4

head and body[,] . . . thereby causing extreme physical

and mental pain and suffering and, ultimately, his

death.” Second Am. Compl. ¶ 33, Ibrahim v. Titan

Corp. [hereinafter Ibrahim Compl.].

“[T]ortur[ing] [Plaintiff] Aboud . . . [b]y beating him

with fists and sticks; . . . urinating on him; . . . [and]

threatening to attack him with dogs.” Id. ¶ 38.

“[T]ortur[ing] [Plaintiff] Hadod . . . [b]y beating him

with fists and striking his head against a wall; [and]

forcing him to watch his elderly father being hung up

and then beaten.” Id. ¶ 42.

“[T]ortur[ing] [Plaintiff Al Jumali’s husband] by

beating him, gouging out one of his eyes, electrocuting

him, breaking one of his legs, and spearing him, . . .

thereby causing . . . his death.” Id. ¶ 51.

“Roping Plaintiff Saleh and 12 other naked prisoners

together by their genitals and then pushing one of the

male detainees to the ground, causing the others to

suffer extreme physical, mental and emotional distress;

. . . . [r]epeatedly shocking Plaintiff Saleh with an

electric stick and beating him with a cable; . . . [and]

[t]ying his hands above his head and sodomizing him

. . . .” Third Am. Compl. ¶ 116, Saleh v. Titan Corp.

[hereinafter Saleh Compl.].

“Stripping [Plaintiff Al-Nidawi], tying his hands

behind his back and releasing dogs to attack his private

parts.” Id. ¶ 142.

5

“[F]orc[ing] Plaintiff Haj Ali to stand on a box, with

electrical wires attached to his wrists and [shocking]

him with intense pulses of electricity . . . .” Id. ¶ 125.

Plaintiffs sued defendants for (inter alia) the common law torts

of assault, battery, and intentional infliction of emotional

distress. In their complaints, they name specific CACI and Titan

employees alleged to have brutalized them. Ibrahim Compl.

¶¶ 37, 55; Saleh Compl. ¶¶ 17-19, 24-27, 49-50.

Although today’s opinion states that the plaintiffs complain

only of “abuse” and not “torture,” Slip Op. at 4, the complaints

repeatedly describe the conduct to which they were subjected as

“torture.” See, e.g., Ibrahim Compl. ¶ 1 (“Specifically, the

Plaintiffs allege that they or their decedents . . . were unlawfully

tortured by agents or employees of the Defendants . . . .”); Saleh

Compl. ¶ 1 (“alleg[ing] that Defendants tortured and otherwise

mistreated Plaintiffs”). The district court certainly understood

that to be what the plaintiffs allege. Ibrahim v. Titan Corp., 391

F. Supp. 2d 10, 12 (D.D.C. 2005) (Plaintiffs “assert that

defendants and/or their agents tortured one or more of them.”).

And that is what the plaintiffs continue to allege in their briefs

on appeal, which accuse both CACI and Titan employees of

torturing them. See, e.g., Plaintiffs-Appellees’ Br. 17 (regarding

CACI); Plaintiffs-Appellants’ Reply Br. 11, 13, 16 (regarding

Titan). In any event, the quotations set out in the previous

paragraph describe some of the most egregious of the conduct

at issue, and there is no dispute that if tort law applies, plaintiffs

have stated a cause of action.

The court’s opinion also appears to take issue with the

merits of some of the plaintiffs’ allegations, suggesting that

government determinations cast doubt upon whether the

plaintiffs were actually subjected to this conduct by the

6

defendants. That is not correct.3 More important, it is

irrelevant. To date, there has been no discovery or summary

judgment on the merits of the plaintiffs’ allegations -- the

district court limited these to the issue of preemption. See 391

F. Supp. 2d at 18-19. Accordingly, and as the court

acknowledges, at this stage of the litigation we must take the

allegations of the complaints to be true. Slip Op. at 4; see

Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163, 164 (1993). In light of the

DOD reports about what happened at Abu Ghraib, we can hardly

regard those allegations as implausible.

3

For example, the court accepts Titan’s view that government

investigations found that its employees were not involved in detainee

abuse at Abu Ghraib. Slip Op. at 4. But Titan is wrong. See REPORT

OF MAJ. GEN. FAY at 133 (finding that a Titan employee “[a]ctively

participated in detainee abuse”); id. at 130-34 (referring two Titan and

three CACI employees for possible prosecution); see also id. at 84

(finding that “[t]he use of dogs in the manner directed by” a CACI

employee “was clearly abusive and unauthorized”). Moreover, there

is no indication that the government investigators had before them the

same evidence that these plaintiffs intend to present. The court also

notes that the U.S. Army Claims Service has rejected one plaintiff’s

claim for compensation (that of Saleh himself), Slip Op. at 3-4, but

there is no hint that the Claims Service has ever considered the merits

of the sixteen other plaintiffs’ cases. Finally, the court notes that, to

date, the government has not criminally charged the contract

employees. Slip Op. at 3, 18. But this sheds little light on the merits

of the plaintiffs’ claims, given the different burdens of proof

applicable to civil and criminal proceedings, as well as the special

jurisdictional problems potentially attendant to the latter. See REPORT

OF MAJ. GEN. FAY at 49-50 (noting that, because CACI’s contract may

have been with the Interior Department rather than DOD, its

employees “may not be subject to the Military Extraterritorial

Jurisdiction Act”).

7

Moreover -- and more important still -- today’s decision

preempts all such litigation, regardless of its merit. Indeed, the

decision would preempt any lawsuit, even if the plaintiff had

photographs that unambiguously showed private contractors in

the act of abusing them. Given the findings of DOD and the

declarations of President Bush and Secretary Rumsfeld, there

may be at least some prisoners who have equivalent evidence.

Nonetheless, far from simply “tak[ing] the plaintiffs’ cases as

they present them to us,” Slip Op. At 4, my colleagues

effectively dispose of any cases that any plaintiffs could

possibly present.

Finally, it should also be emphasized that neither the

Ibrahim nor the Saleh complaints allege that the defendants’

actions were ordered or authorized by the United States

government. Nor has any party proffered any evidence that the

United States did order or authorize such conduct, or that it was

undertaken to obtain information or to further any other military

purpose.4 To the contrary, the plaintiffs contend that the

contractors “acted unlawfully and without military

authorization.” Plaintiffs-Appellees’ Br. 46 (emphasis added).5

4

See Plaintiffs-Appellees’ Br. 45-46 (“The limited discovery

permitted by the District Court to date, combined with the military

investigations and testimony regarding Abu Ghraib, strongly suggests

that the CACI employees actually were the ringleaders in the illegal

abuse. . . . CACI failed to present any evidence whatsoever that the

CACI employees were directed by the military, [or] received military

authorization and approval, to abuse prisoners.”).

5

See Ibrahim Compl. ¶ 29 (alleging that the defendants

committed the acts “[d]espite . . . clear expressions of United States

policy, and despite the expectation that the Defendants would perform

their contractual duties in accordance with United States and

international law”); Saleh Compl. ¶ 108 (alleging that the United

States intended the contractors to “conduct interrogations in accord

8

The Saleh (but not the Ibrahim) complaint does charge that the

private contractors acted together with a small number of low-

ranking soldiers -- soldiers who were later court-martialed for

their unauthorized, illegal conduct. Saleh Compl. ¶ 28;

Plaintiffs-Appellees’ Br. 17-18, 24.6 But there is no allegation,

and no evidence, that those soldiers had any control, de jure or

de facto, over the defendants. Hence, it is incorrect to say that

“these cases are really indirect challenges to the actions of the

U.S. military.” Slip Op. at 12. Rather, they are direct

challenges to the unlawful and unauthorized actions of private

contractors.

II

The court directs the dismissal of the plaintiffs’ common

law tort claims on the ground that they are preempted by federal

law. But what federal law does the preempting?

The defendants (and the court) cite only one law: the

Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-

80. But if we follow our usual rule -- to learn the meaning of a

statute by reading its text -- preemption under that Act is

inappropriate. See Conn. Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992) (“We have stated time and again that courts must

presume that a legislature says in a statute what it means and

means in a statute what it says there.”). The text of the FTCA

does indeed evidence congressional concern with common law

with the relevant domestic and international laws” ).

6

A separate RICO statement, filed solely by the Saleh plaintiffs,

also alleged a broader conspiracy, but the district court dismissed the

RICO count and the Saleh plaintiffs have abandoned the allegation.

See Plaintiffs-Appellees’ Br. 46. The Ibrahim plaintiffs never made

such an allegation. See id. at 2.

9

tort claims, but that concern is directed solely at claims leveled

“against the United States” for the wrongful acts of “any

employee of the Government.” Id. § 1346(b)(1). The Act

permits plaintiffs to sue the United States in federal court for

state-law torts committed by government employees within the

scope of their employment, but contains specific exceptions that

preserve the government’s sovereign immunity under certain

circumstances. Id. §§ 1346(b), 2671-80. Nothing in the

language of the statute applies to suits brought against

independent contractors, like the defendants in these cases. In

fact, the reverse is true. Although the FTCA states that the term

“[e]mployee of the government” includes “employees of any

federal agency,” it expressly states that “the term ‘Federal

agency’ . . . does not include any contractor with the United

States.” Id. § 2671 (emphasis added).

In Boyle v. United Technologies Corp., the Supreme Court

invoked an implied, but direct conflict with the FTCA to

conclude that the manufacturer of a Marine helicopter could not

be held liable under state tort law for injury caused by a design

defect. 487 U.S. 500 (1988). The defendants and my colleagues

believe that “plaintiffs’ common law tort claims are controlled

by Boyle.” Slip Op. at 9. I agree. In this Part, I will explain

why a straightforward application of Boyle yields the conclusion

that preemption of the plaintiffs’ claims is unwarranted, and why

we should hesitate to extend Boyle beyond the scope of the

discretionary function exception and direct-conflict rationale

that the Court relied upon in that case. My “quarrel” is not with

Boyle -- as my colleagues suppose, id. at 10 -- but rather with

the way in which they have extended Boyle beyond its rationale.

A

Nothing in Boyle itself warrants the preemption of state tort

law in these cases. Boyle involved the co-pilot of a U.S. Marine

10

helicopter who was killed when the helicopter crashed into the

ocean. His father brought a diversity action against the

contractor that built the helicopter for the United States, alleging

that the design was defective because the escape hatch opened

outward instead of inward -- rendering it inoperable in a

submerged craft. The first question the Supreme Court asked

was whether the case involved “uniquely federal interests.”

Boyle, 487 U.S. at 504-05. With little difficulty, the Court

concluded that “the liability of independent contractors

performing work for the Federal Government . . . is an area of

uniquely federal interest.” Id. at 505 n.1. There is likewise no

dispute regarding that question here.

But Boyle also declared that the fact that “the procurement

of equipment by the United States is an area of uniquely federal

interest does not . . . end the inquiry.” Id. at 507. “That merely

establishes a necessary, not a sufficient, condition for the

displacement of state law.” Id. “Displacement,” the Court

declared, “will occur only where . . . a significant conflict exists

between an identifiable federal policy or interest and the

[operation] of state law, or the application of state law would

frustrate specific objectives of federal legislation.” Id. (internal

citations and quotation marks omitted). “The conflict with

federal policy need not be as sharp as that which must exist for

ordinary pre-emption when Congress legislates in a field which

the States have traditionally occupied. . . . But conflict there

must be.” Id. at 507-08 (emphasis added) (internal quotation

marks omitted).

The Court began with a hypothetical illustrating an instance

when preemption would not be warranted. “[I]t is easy to

conceive,” the Court said, of a “situation[] in which the duty

sought to be imposed on the contractor” by state law “is not

identical to one assumed under the contract, but is also not

contrary to any assumed”:

11

If, for example, the United States contracts for the

purchase . . . of an air conditioning-unit, specifying the

cooling capacity but not the precise manner of

construction, a state law imposing upon the

manufacturer of such units a duty of care to include a

certain safety feature would not be a duty identical to

anything promised the Government, but neither would

it be contrary. The contractor could comply with both

its contractual obligations and the state-prescribed duty

of care.

Id. at 509. “No one suggests that state law would generally be

pre-empted in this context,” the Court said. Id. By contrast to

the hypothetical air conditioner, however, the Court found a

significant conflict of duties in the case of the helicopter:

Here the state-imposed duty of care that is the asserted

basis of the contractor’s liability (specifically, the duty

to equip helicopters with the sort of escape-hatch

mechanism petitioner claims was necessary) is

precisely contrary to the duty imposed by the

Government contract (the duty to manufacture and

deliver helicopters with the sort of escape-hatch

mechanism shown by the specifications).

Id. (emphasis added).

The Court then invoked the FTCA’s “discretionary

function” exception to delimit the circumstances in which a

state-imposed duty that is “precisely contrary to” a government

contract should be preempted. The Court noted that one of the

circumstances that the FTCA excepted from the statute’s

consent to suit was for:

12

[a]ny claim . . . based upon the exercise or performance

or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or an

employee of the Government, whether or not the

discretion involved be abused.

Id. at 511 (emphasis added) (quoting 28 U.S.C. § 2680(a)).

“[T]he selection of the appropriate design for military equipment

to be used by our Armed Forces is assuredly a discretionary

function within the meaning of this provision,” the Court said,

and “state law which holds Government contractors liable for

design defects in military equipment does in some circumstances

present a ‘significant conflict’ with federal policy and must be

displaced.” Id. at 511-12 (emphasis added). The Court then

outlined “the scope of displacement” necessary to avoid such

conflict as follows:

Liability for design defects in military equipment

cannot be imposed, pursuant to state law, when (1) the

United States approved reasonably precise

specifications; (2) the equipment conformed to those

specifications; and (3) the supplier warned the United

States about the dangers in the use of the equipment

. . . . The first two of these conditions assure . . . that

the design feature in question was considered by a

Government officer, and not merely by the contractor

itself.

Id. at 512.

The contracts at issue in the instant cases are like the one

for the hypothetical air conditioner, not the helicopter. As in the

contract for the air conditioner, these contracts simply required

the contractors to provide particular receivables: interrogators

and interpreters. The “asserted basis of the contractor’s

13

liability” -- the abuse of prisoners -- is plainly not “precisely

contrary to the duty imposed by the Government contract.” No

party’s pleadings contend that the government required or

authorized the contractor personnel at Abu Ghraib to do what

state law forbids. To the contrary, the plaintiffs’ contention is

that the contractors “acted unlawfully and without military

authorization.” Plaintiffs-Appellees’ Br. 46 (emphasis added);

see supra note 5.

Boyle has never been applied to protect a contractor from

liability resulting from the contractor’s violation of federal law

and policy. And there is no dispute that the conduct alleged, if

true, violated both.7 Hence, these cases are not “within the area

where the policy of the ‘discretionary function’ would be

frustrated,” and they present no “significant conflict” with

federal interests. Boyle, 487 U.S. at 512. Preemption is

therefore not justified under Boyle.

B

Recognizing that they cannot prevail under either the text

of the FTCA or the holding of Boyle, the defendants ask us to

7

My colleagues appear to acknowledge that, if the contractors’

employees committed the acts alleged here, their conduct would

violate U.S. law. See Slip Op. at 3 (citing 18 U.S.C. § 2340A

(torture); id. § 2441 (war crimes ); id. § 3261 (certain criminal

offenses committed by anyone “employed by or accompanying the

Armed Forces outside the United States”)); see also, e.g., 18 U.S.C.

§ 113 (describing assaults within the compass of § 3261). The Army

Field Manual requires contractors to “comply with all applicable US

and/or international laws.” U.S. DEP’T OF THE ARMY, FIELD MANUAL

3-100.21, CONTRACTORS ON THE BATTLEFIELD § 1-39 (2003); see also

REPORT OF MAJ. GEN. FAY at 12-13 (stating that “civilians who

accompany or work with the US Armed Forces” are “bound by

Geneva Conventions”).

14

expand the scope of judge-made preemption. Instead of basing

preemption on the FTCA’s discretionary function exception --

the only exception Boyle discussed -- the defendants ask us to

extend Boyle to the exception for “claim[s] arising out of the

combatant activities of the military or naval forces . . . during

time of war.” 28 U.S.C. § 2680(j). That request finds no

support in either Boyle or other precedents.

At the heart of Boyle’s analysis is the doctrine of conflict

preemption. See supra Part II.A. As my colleagues note,

preemption under the discretionary function exception is in

accord with that doctrine, as it requires “a sharp example of

discrete conflict in which satisfying both state and federal duties

(i.e., by designing a helicopter hatch that opens both inward and

outward) was impossible.” Slip Op. at 13. By contrast,

preemption under the combatant activities exception is

extraordinarily broad; as employed by my colleagues, it results

not in conflict preemption but in “field preemption.” Id. at 10,

13. Given that using the FTCA to preempt suits against private

contractors is atextual, the Boyle Court’s decision to require

discrete conflict was quite sensible.

Moreover, if we go down this road and extend Boyle to the

combatant activities exception, there is no reason to stop there.

The FTCA’s exceptions are not limited to discretionary

functions and combatant activities. As my colleagues note, they

also include “any claim arising in a foreign country.” Slip Op.

at 10 n.3 (quoting 28 U.S.C. § 2680(k)). Hence, the “degree of

integration” test that my colleagues carefully construct for

combatant activities preemption, Slip Op. at 7, seems wholly

beside the point: the plaintiffs’ claims arose in Iraq, a foreign

country, so why should that not be the end of the matter?

Indeed, the FTCA has an additional exception that protects the

government from suit for “assault [and] battery” -- whether it

occurs abroad or in the United States. 28 U.S.C. § 2680(h). On

15

the court’s theory, why should these exceptions not apply to

private contractors as well? Once we depart from the limiting

principle of Boyle, it is hard to tell where to draw the line.

The Supreme Court has never extended Boyle beyond the

discrete conflicts that application of the discretionary function

exception targets. Quite the opposite, in Correctional Services

Corp. v. Malesko, the Court described the Boyle defense as a

“special circumstance” in which the “government has directed

a contractor to do the very thing that is the subject of the claim.”

534 U.S. 61, 74 n.6 (2001). Wyeth v. Levine, the Supreme

Court’s most recent preemption case, further reflects the Court’s

unwillingness to read broad preemptive intent from

congressional silence. As Wyeth explained, the Court starts with

the presumption that state law is not to be superseded “unless

that was the clear and manifest purpose of Congress.” 129 S.

Ct. 1187, 1194-95 (2009) (quoting Medtronic, Inc. v. Lohr, 518

U.S. 470, 485 (1996)). The Court “rel[ies] on the presumption

because respect for the States as ‘independent sovereigns in our

federal system’ leads us to assume that ‘Congress does not

cavalierly pre-empt state-law causes of action.’” Id. at 1195 n.3

(quoting Medtronic, 518 U.S. at 485). Thus, Wyeth counsels

against extending Boyle beyond its holding, as the FTCA

evidences no “clear and manifest purpose of Congress” to

preempt state-law actions against contractors under the

combatant activities exception. Id. at 1195. Although my

colleagues perceive support for their own position in Wyeth -- a

decision in which the Court found that a federal statute did not

preempt state tort claims -- I do not see it. It may be that

congressional intent “is much clearer in the case of the statutory

text of the combatant activities exception” than in “federal drug

regulations.” Slip Op. at 19. But the only intent that is clear in

the former text is the intent to preserve sovereign immunity in

suits against the United States. The FTCA says nothing at all

about suits against “contractors” other than that contractors are

16

not “federal agenc[ies]” for purposes of the Act. 28 U.S.C. §

2671.

No other circuit court has gone as far as our circuit goes

today. Koohi v. United States was, like Boyle, a products

liability case. 976 F.2d 1328 (9th Cir. 1992). There, the Ninth

Circuit did apply the combatant activities exception to bar suit

against the manufacturer of an air defense system deployed on

a U.S. naval vessel that shot down an Iranian aircraft. As my

colleagues recognize, however, the Ninth Circuit’s rationale was

that tort liability is inappropriate where “force is directed as a

result of authorized military action.” Slip Op. at 12 (emphasis

added) (quoting Koohi, 976 F.2d at 1337). Unlike the situation

in Koohi, where sailors fired the weapon, there is no claim here

that the force used against the plaintiffs was either “directed” or

“authorized” by U.S. military personnel.

Nor are my colleagues assisted by the foreign policy cases

they cite. Slip Op. at 20-21. Those cases involved preemption of

state laws that were specifically targeted at issues concerning

the foreign relations of the United States, a description the court

does not dispute.8 Moreover, in virtually all of them, the

8

Rather than dispute this, the court notes that it is “a black-letter

principle of preemption law that generally applicable state laws may

conflict with and frustrate the purposes of a federal scheme just as

much as a targeted state law.” Slip Op. at 21 n.8 (emphasis added).

As long as the word “may” is emphasized, that principle is correct.

But this does not call into question the fact that no precedent has

employed a foreign policy analysis to preempt generally applicable

state laws (not to mention the fact that there is also no “federal

scheme” here). See Jack Goldsmith, Federal Courts, Foreign Affairs,

and Federalism, 83 VA. L. REV. 1617, 1711 (1997) (explaining that

foreign affairs preemption should be limited to, at most, state laws that

purposely interfere with foreign policy, not state laws that “are facially

neutral and were not designed with the purpose of influencing U.S.

17

preempted state laws conflicted with express congressional or

executive policy regarding the targeted issues. Although the

court does dispute this description as to two of the cited cases,

the description is accurate. In American Insurance Association

v. Garamendi, the Supreme Court found a “clear conflict”

between a California statute applying only to Holocaust-era

insurance “policies issued by European companies, in Europe,

to European residents,” and “express federal policy” contained

in Executive Branch agreements with Germany, Austria, and

France. 539 U.S. 396, 425-26 (2003). Similarly, in Crosby v.

National Foreign Trade Council, the Court preempted a state

statute that expressly purported to regulate foreign commerce

with Burma in ways that “undermine[d] the intended purpose

and ‘natural effect’” of a congressional sanctions regime aimed

directly at Burma. 530 U.S. 363, 373 (2000).9

foreign relations”). The three additional Supreme Court cases that the

court cites, Slip Op. at 21 n.8, are simply inapposite. None involved

foreign policy and all three involved statutory provisions that

expressly preempted state law. See Riegel v. Medtronic, Inc., 128 S.

Ct. 999, 1007-8 (2008); Bates v. Dow Agrosciences LLC, 544 U.S.

431, 442-43 (2005); Cipollone v. Liggett Group, Inc., 505 U.S. 504,

520-23 (1992) (plurality opinion).

9

See also Zschernig v. Miller, 389 U.S. 429, 432, 440 (1968)

(holding that an Oregon probate statute, which barred residents’

inheritances from going to heirs in countries with confiscatory

property laws, was being used to “withhold[] remittances to legatees

residing in Communist countries” and thereby “intru[de] . . . into the

field of foreign affairs”); Hines v. Davidowitz, 312 U.S. 52, 67, 74

(1941) (concluding that Pennsylvania’s Alien Registration Act “stands

as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress” in enacting “a single integrated

and all-embracing system” in the federal Alien Registration Act). See

generally Medellin v. Texas, 128 S. Ct. 1346, 1371-72 (2008)

(describing Garamendi as a mere foreign “claims-settlement case[]

18

The cases before us, by contrast, involve the application of

facially neutral state tort law. And there is no express

congressional or executive policy with which such law conflicts.

See infra Part II.C.10 No precedent has employed a foreign

policy analysis to preempt state law under such circumstances.11

involv[ing] a narrow set of circumstances”); Garamendi, 539 U.S. at

417 (describing Zschernig as involving a state law that “in practice

had invited minute inquiries concerning the actual administration of

foreign law and so was providing occasions for state judges to

disparage certain foreign regimes” (internal citation and quotation

marks omitted)). The remaining case cited by the court, Japan Line,

Ltd. v. County of Los Angeles, 441 U.S. 434 (1979), involved

application of the Constitution’s Foreign Commerce Clause to state

taxation of foreign commerce.

10

In a footnote to this part of their argument, my colleagues list

a miscellany of federal civil and criminal statutes relating to torture.

Although they describe the list as “comprehensive,” Slip Op. at 23 n.9,

that description is not Congress’ characterization, but theirs. Nor is

there any evidence that Congress affirmatively “declined to create a

civil tort cause of action that plaintiffs could employ,” id. (emphasis

added) -- let alone that Congress intended these statutes to displace

existing state or federal law. Indeed, the only evidence of the purpose

of the principal civil statute the court cites, the Torture Victim

Protection Act, 28 U.S.C. § 1350 note, is that it was intended to

“enhance the remedy already available” for torture victims under the

ATS, S. REP. NO. 102-249, at 5 (1991); see H.R. REP. NO. 102-367, at

4 (1991) (same). As for the federal criminal statutes, Congress has

passed a myriad of such statutes covering virtually every area of

modern life, and no court has ever suggested that in so doing the

legislature intended to preempt existing state laws. If anything, the

cited statutes -- all of which condemn torture -- confirm that there is

no conflict between state law and federal policy on that issue.

11

Cf. Medellin, 128 S. Ct. at 1371-72 (refusing to preempt a

“neutrally applicable state law[]” despite the President’s affirmative

19

C

My colleagues acknowledge that the “nature of the conflict”

they perceive in these cases is “somewhat different from that in

Boyle -- a sharp example of discrete conflict in which satisfying

both state and federal duties . . . was impossible.” Slip Op. at

13. “Rather,” they say, here “it is the imposition per se” of state

tort law “that conflicts with the FTCA’s policy of eliminating

tort concepts from the battlefield.” Id. (emphasis added). In

short, the court’s decision to utilize the combatant activities

exception requires it to shift from preemption based on conflict-

of-duty to preemption based on conflict-of-policy. But even if

this shift were justified, we would still have no basis for ruling

that such a conflict of policy exists.

1. According to the court, “the policy embodied by the

combatant activities exception is simply the elimination of tort

from the battlefield,” and that policy is “equally implicated

whether the alleged tortfeasor is a soldier or a contractor” under

the circumstances at issue in these cases. Slip Op. at 12. The

court is plainly correct that the FTCA’s policy is to eliminate the

U.S. government’s liability for battlefield torts. That, after all,

is what the FTCA says. But it is not plain that the FTCA’s

policy is to eliminate liability when the alleged tortfeasor is a

contractor rather than a soldier. That, after all, is not what the

FTCA says. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S.

83, 98 (1991) (declaring that “[t]he best evidence of

[congressional] purpose is the statutory text”). Nor, as the court

submission that United States foreign policy would be undermined);

Garamendi, 539 U.S. at 425-26 (preempting a California insurance

statute, but distinguishing it from “a generally applicable ‘blue sky’

law” because the California statute “effectively singles out only

policies issued by European companies, in Europe, to European

residents”).

20

recognizes, is there any support for its position in the “singularly

barren” legislative history of the combatant activities exception.

Slip Op. at 11 (quoting Johnson v. United States, 170 F.2d 767,

769 (9th Cir. 1948)).

Congress knows full well how to make its intention to

preclude private liability known. See, e.g., 22 U.S.C. § 2291-

4(b) (providing that interdiction of an aircraft over foreign

territory pursuant to a presidentially approved program “shall

not give rise to any civil action . . . against the United States or

its employees or agents” (emphasis added)). It has not done so

here. Rather, as already discussed, Congress expressly excluded

contractors from the definition of federal agencies that retained

sovereign immunity under the exceptions to the Act. See 28

U.S.C. § 2671.

Indeed, because the FTCA concerns only the immunity of

the United States, the FTCA itself does not even protect soldiers

or other government employees from tort suits. That protection

is afforded by the Westfall Act, which provides that, “[u]pon

certification by the Attorney General that the defendant

employee was acting within the scope of his office or

employment,” the federal employee is dismissed and “the

United States shall be substituted as the party defendant.” 28

U.S.C. § 2679(d)(1). “Thereafter, the suit is governed by the

FTCA and is subject to all of the FTCA’s exceptions” to the

waiver of sovereign immunity, including the combatant

activities exception. Wuterich v. Murtha, 562 F.3d 375, 380

(D.C. Cir. 2009); see 28 U.S.C. § 2679(d)(4).

But contractors are not covered by the Westfall Act either.

In fact, because that Act uses the FTCA’s definitions, they are

again expressly excluded from its protections. 28 U.S.C. §

2671. And yet, the court preempts this state tort action without

requiring (or receiving) the Attorney General certification that

21

would have been necessary had the defendants been government

employees rather than private contractors. It thus grants private

contractors more protection than our soldiers and other

government employees receive. Such a congressional policy

cannot be inferred from the language of the FTCA.

2. There is also no indication that the Executive Branch

shares the court’s judgment that military contractors must be

exempt from tort law. To the contrary, DOD has advised

contractors that accompany the Armed Forces in the field that

they are subject to civil liability, and it has rejected a request to

extend Boyle to all combatant activities. Moreover, it has lent

no support whatsoever to the defense of the contractors here.

In a rulemaking “to implement DoD policy regarding

contractor personnel authorized to accompany U.S. Armed

Forces deployed outside the United States,” the Department

explicitly advised military contractors that “[i]nappropriate use

of force could subject a contractor or its subcontractors or

employees to prosecution or civil liability under the laws of the

United States and the host nation.” Contractor Personnel

Authorized to Accompany U.S. Armed Forces, 73 Fed. Reg.

16,764, 16,764, 16,767 (Mar. 31, 2008) (emphasis added)

[hereinafter DFARS Rule]; see 48 C.F.R. § 252.225-7040(b)(3)

(iii) (same).12 When contractors expressed concern about the

consequences of this advisory for their defenses in tort litigation,

DOD made clear that it thought “the rule adequately allocates

risks.” DFARS Rule, 73 Fed. Reg. at 16,768. And it

specifically rejected a suggestion that it “invite courts” to

expand the reach of Boyle by adopting “language that would

12

As there is no existing federal common law of torts that could

impose civil liability, DOD’s warning of civil liability under the laws

of the United States can only be a reference to state tort law.

22

immunize contractors from tort liability.” Id. The Department

stated:

[T]he clause retains the current rule of law, holding

contractors accountable for the negligent or willful

actions of their employees, officers, and

subcontractors. . . . The public policy rationale behind

Boyle does not apply when a performance-based

statement of work is used in a services contract,

because the Government does not, in fact, exercise

specific control over the actions and decisions of the

contractor or its employees or subcontractors. . . .

Contractors will still be able to defend themselves

when injuries to third parties are caused by the actions

or decisions of the Government. However, to the

extent that contractors are currently seeking to avoid

accountability to third parties for their own actions by

raising defenses based on the sovereignty of the United

States, this rule should not send a signal that would

invite courts to shift the risk of loss to innocent third

parties.

Id.13

Nor has the Executive Branch evinced any concern about

the imposition of tort liability in the cases now before us,

notwithstanding the Army’s knowledge of the ongoing

13

The court states that “there is no indication” in the above-quoted

statement that DOD “considered, much less ruled out, whether tort

suits against service contractors working within the military chain of

command should be preempted.” Slip Op. at 17 (emphasis added).

But as discussed below, DOD’s position is that contractors are not

within the military chain of command. See infra Part III.A.

23

litigation.14 My colleagues are nonetheless convinced that the

failure to institute criminal proceedings against the contractors

“indicates the government’s perception of the contract

employees’ role in the Abu Ghraib scandal.” Slip Op. at 18.15

No such inference from prosecutorial silence is warranted. The

government may well believe that it faces a jurisdictional barrier

to prosecution, see supra note 3; it may lack the evidence that

these plaintiffs have; it may feel that its evidence is insufficient

to satisfy the higher burden of proof applicable to a criminal

prosecution; or it may simply prefer to rely on the tort system.

What we cannot conclude, however, is that the government

doubts “the contract employees’ role in the Abu Ghraib

scandal.” Slip Op. at 18. See REPORT OF MAJ. GEN. FAY at 130-

34 (implicating two Titan and three CACI employees in

wrongdoing at Abu Ghraib); id. at 84 (finding that “[t]he use of

dogs in the manner directed by” a CACI employee “was clearly

abusive and unauthorized”); id. at 133 (finding that a Titan

employee “[a]ctively participated in detainee abuse”).

The position DOD took in its rulemaking on contractor

liability may reflect the government’s general view that

14

Compare Garamendi, 539 U.S. at 411, 413 (citing a letter from

Deputy Secretary Eizenstat to California officials stating that the

California statute threatened to derail U.S. negotiations with Germany,

and the amicus brief of the United States in support of preemption);

Crosby, 530 U.S. at 386 (reasoning that “repeated representations by

the Executive Branch . . . demonstrate that the state Act stands in the

way of Congress’s diplomatic objectives”); Boyle, 487 U.S. at 501-02

(in which the United States appeared as amicus curiae in support of

preemption); Hines, 312 U.S. at 56 (same).

15

The court also states that no “disciplinary” or “contract

proceedings” have been instituted. Slip Op. at 18. There is, however,

nothing in the record indicating whether such proceedings have been

brought.

24

permitting contractor liability will advance, not impede, U.S.

foreign policy by demonstrating that “the United States is

committed to ensuring that its contractors are subject to proper

oversight and held accountable for their actions.” U.S. Dep’t of

State, Press Release, Department of State Legal Adviser

Promotes Accountability for Private Military and Security

Companies (Sept. 17, 2008).16 The government may have

refrained from participating in the two cases now before us for

the same reason. As President Bush stated, “the practices that

took place in that prison are abhorrent and they don’t represent

America.” White House, Press Release, President Bush Meets

with Al Arabiya Television, 2004 WLNR 2540883 (May 5,

2004). Under these circumstances, the government’s failure to

defend the contractors may reflect the Executive Branch’s view

that the country’s interests are better served by demonstrating

that “people will be held to account according to our laws.”

White House, Press Release, Press Conference of the President,

2006 WLNR 10248633 (June 14, 2006). And the Executive

may believe that one way to show that “people will be held to

account” is to permit this country’s legal system to take its

ordinary course and provide a remedy for those who were

wrongfully injured.

None of this is to suggest that we can know with certainty

the unexpressed policy views of Congress or the Executive, or

to discount the reasonableness of the policy concerns expressed

by my colleagues. Quite the contrary. But the existence of

plausible yet divergent assessments of the policy consequences

of tort liability further counsels against judicial preemption. If

Congress believes that such liability would hamper the war

effort, it can amend the FTCA or the Westfall Act to protect

16

Available at http://geneva.usmission.gov/Press2008/September/

0917PrivateSecurity.html.

25

private contractors. If the Executive is of that view, it can say

so.

Under the rule adopted today, however, the court has

removed an important tool from the Executive’s foreign policy

toolbox. Even if the Executive believes that U.S. interests

would be advanced by subjecting private contractors to tort

liability under these circumstances, today’s decision makes it

impossible to accomplish that end absent congressional action.

That is a particularly ironic consequence of a rule that the court

adopts based upon a quite proper concern that the Judiciary not

interfere with the Executive’s flexibility in the area of foreign

policy.

3. In addition to their argument that the imposition of tort

liability on contractors constitutes a per se conflict with the

policy of the political branches, my colleagues raise more

specific policy conflicts they believe tort suits would engender.

Slip Op. at 13-14.

The court notes, for example, that “the costs of imposing

tort liability on government contractors [will be] passed through

to the American taxpayer, as was recognized in Boyle.” Id. at

13. The Boyle Court did indeed recognize the risk of a monetary

pass-through, but it did not respond by preempting all tort

liability for government contractors. In fact, the Court thought

that was “too broad” a response to the potential pass-through

problem, Boyle, 487 U.S. at 510, and instead barred recovery

only where there was a direct conflict with a government-

imposed duty, see id. at 512.

My colleagues also express concern that, in the absence of

preemption, U.S. military personnel will be haled into court or

deposition proceedings involving private contractors. Slip Op.

at 13. But that concern does not require across-the-board

26

preemption. Where discovery would hamper the military’s

mission, district courts can and must delay it -- until personnel

return stateside, or until the end of the war if necessary.17 Where

production of witnesses or documents would damage national

security regardless of timing, the usual privileges apply.18 To

deny preemption is not to grant plaintiffs free reign.19

17

See Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007) (noting

that district courts have the tools, “in cases involving third-party

subpoenas to government agencies or employees,” to “properly

accommodate the government’s serious and legitimate concern that its

employee resources not be commandeered into service by private

litigants to the detriment of the smooth functioning of government

operations” (internal quotation marks omitted)).

18

See Watts, 482 F.3d at 508 (noting that Federal Rule of Civil

Procedure 45 “requires that district courts quash subpoenas that call

for privileged matter or would cause an undue burden”); Ibrahim, 391

F. Supp. 2d at 16 (declining “to dismiss otherwise valid claims at this

early stage,” but suggesting that the court would dismiss if

“[m]anageability problems” emerge, “especially if discovery collides

with government claims to state secrecy”).

19

The court further suggests that “allowance of these claims will

potentially interfere with the federal government’s authority to punish

and deter misconduct by its own contractors.” Slip Op. at 14. The

court does not say why punishment and civil liability cannot coexist,

or indeed, why they do not complement each other. The prospect of

material interference is hardly self-evident, as parallel government and

private litigation is the norm in cases ranging from assault, to antitrust,

to securities regulation. See, e.g., Wyeth, 129 S. Ct. at 1202 (noting

that state law tort suits can complement federal enforcement by the

FDA). In any event, the executive branch -- which presumably knows

more about what would interfere with its prerogatives than we do --

has taken the position that civil liability should be available against

military contractors. See supra Part II.C.2.

27

4. The court further suggests that the broad field preemption

it prescribes is required to properly balance the federal and state

interests at stake in this kind of litigation. In support of this

contention, the court declares that the “federal government’s

interest in preventing military policy from being subjected to

fifty-one separate sovereigns . . . is not only broad -- it is also

obvious.” Slip Op. at 19. The point is indeed obvious, but also

inapposite. As discussed above, there is nothing in the pleadings

or record to suggest that the abuse alleged here was part of any

“military policy.” Moreover, even if there were a jurisdiction

whose tort law conflicted with military policy, Boyle itself

would provide a narrower answer: selective preemption of

“only particular elements” of the state’s law. Boyle, 487 U.S. at

508 (citing United States v. Little Lake Misere Land Co., 412

U.S. 580, 595 (1973), for the proposition that, “assuming state

law should generally govern federal land acquisitions, [the]

particular state law at issue may not”).20

The court also expresses puzzlement over what interest any

state could “have in extending its tort law onto a foreign

battlefield.” Slip Op. at 17. But there is no issue of “extending”

a state’s law here; the case involves only the application of a

state’s traditional, generally applicable tort law. That such law

20

My colleagues repeatedly raise the specter that the district court

might apply Iraqi tort law. See Slip Op. at 11, 12, 19. But the

plaintiffs reject Iraqi law as a basis for their claims, and the district

court did not contemplate it. Plaintiffs-Appellees’ Br. 53-54. Nor is

it a realistic possibility. As we explained in Sami v. United States,

“prevailing conflicts [of law] principles . . . permit application of an

alternate substantive law when foreign law conflicts with a strong

public policy of the forum.” 617 F.2d 755, 763 (D.C. Cir. 1979)

(footnote omitted). But even if that specter were more corporeal, it

would at most warrant application of the selective preemption option

mentioned above and discussed in Boyle, 487 U.S. at 508, not the kind

of field preemption adopted in today’s ruling.

28

may apply to conduct in a foreign country is hardly unusual.

Under the Foreign Sovereign Immunities Act, for example, state

tort law typically provides a cause of action even for plaintiffs

who sue foreign sovereigns, including for conduct that takes

place abroad.21

This is not to deny that many states would indeed have little

or no interest in this particular litigation. But it is not clear that

Virginia and California,22 the states in which CACI and Titan

maintain their principal places of business, have no interest in

ensuring that their corporations refrain from abusing prisoners --

even in a foreign country. See RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 9 cmt. f (1971) (“[A] person is most

closely related to the state of his domicil[e], and this state has

jurisdiction to apply its local law to determine certain of his

interests even when he is outside its territory. It may, for

example, . . . forbid him to do certain things abroad.”).

More important, even if the court were correct that “the

interests of any U.S. state . . . are de minimis in this dispute”

because “all alleged abuse occurred in Iraq against Iraqi

citizens,” Slip Op. at 21, today’s decision cuts a much wider

swath. It would bar suit even if the victims of the contractors’

21

See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 685 &

n.4 (2004); First Nat’l City Bank v. Banco Para El Comercio Exterior

de Cuba, 462 U.S. 611, 622 n.11; Verlinden B.V. v. Cent. Bank of

Nigeria, 461 U.S. 480, 491 (1983); Kilburn v. Socialist People’s

Libyan Arab Jamahiriya, 376 F.3d 1123, 1125, 1129 (D.C. Cir. 2004).

22

The Saleh plaintiffs originally filed their complaint in federal

district court in Titan’s home jurisdiction of California, from which

the case was transferred at CACI’s request. Saleh v. Titan Corp., 361

F. Supp. 2d 1152, 1155 (S.D. Cal. 2005). Our district court has not yet

addressed the question of which state law should apply, having limited

initial proceedings to the question of preemption.

29

assaults were fellow Virginians or Californians -- including

fellow employees of the same contractors. See, e.g., Jones v.

Halliburton Co., 625 F. Supp. 2d 339 (S.D. Tex. May 9, 2008)

(tort suit by a Texas woman alleging rape by fellow contractor

employees in Iraq). Indeed, the decision would bar suit even if

the victims were soldiers whom the contractors were hired to

support. The rule the court has announced, then, is not truly one

in which the “breadth of displacement” of state law is “inversely

proportional to state interests.” Slip Op. at 21. Rather, and

notwithstanding its best intentions, the court has crafted a rule

that overrides state interests altogether, regardless of their

strength in a given case.

In any event, there are certainly ways short of broad

preemption to ensure that a trial court neither asserts jurisdiction

over a case that lacks a significant connection with the forum,

nor applies the law of a state with no interest in the matter. The

doctrine of forum non conveniens is one such tool.23 So, too, are

the limits that states impose on the extraterritorial reach of their

own courts,24 as well as limitations imposed by the

Constitution’s Due Process Clause.25 Indeed, if my colleagues

23

See, e.g., Torres v. S. Peru Copper Corp., 113 F.3d 540, 541

(5th Cir. 1997) (dismissing extraterritorial tort claims under forum non

conveniens).

24

See, e.g., Gorman v. Ameritrade Holding Corp., 293 F.3d 506,

509-10 (D.C. Cir. 2002) (noting the limits of the District of

Columbia’s long-arm statute).

25

See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985)

(barring extraterritorial application of a state’s substantive law unless

the state has a “significant contact or significant aggregation of

contacts, creating state interests, such that choice of its law is neither

arbitrary nor fundamentally unfair”); see also Helicopteros Nacionales

de Colom., S.A. v. Hall, 466 U.S. 408, 414 (1984) (holding that, for in

30

are right about the state interests at stake here, it is possible that

one of these doctrines could end these cases without resort to

nontextual preemption.

Finally, even if the prospect of applying state laws in this

kind of case would present an insurmountable conflict with

federal interests, Boyle again counsels a different disposition

from that which my colleagues adopt. As Boyle explained,

“where the federal interest requires a uniform rule, the entire

body of state law applicable to the area conflicts [with] and is

replaced by federal rules.” 487 U.S. at 507 (emphasis added).

Accordingly, where the Supreme Court finds field preemption

appropriate, it does not normally preempt state law and simply

leave the field vacant. Instead, it substitutes a federal common

law regime.26 That is what the Court did in Clearfield Trust Co.

v. United States, the case my colleagues cite as the archetypal

example of “field preemption.” Slip Op. at 10, 11; see 318 U.S.

363, 366-67 (1943) (holding that the rights and obligations of

the United States with respect to commercial paper must be

governed by a uniform federal rule). It is also what my

colleagues’ own analysis would dictate. See Slip Op. at 13

(arguing that the government’s “interest in combat is always

personam jurisdiction to be asserted over a nonresident corporate

defendant, there must be “‘certain minimum contacts with [the forum]

such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice’” (quoting Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945))).

26

See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,

427 (1964) (displacing New York’s “act of state” rule because “the

scope of the act of state doctrine must be determined according to

federal law”); Textile Workers Union of Am. v. Lincoln Mills of Ala.,

353 U.S. 448, 456 (1957) (holding that, because collective bargaining

agreements require uniform interpretation, federal law based on “the

policy of our national labor laws” must substitute for state law).

31

‘precisely contrary’ to the imposition of a non-federal tort duty”

(emphasis added)). Yet here, the court simply leaves the field.27

III

For the reasons just stated, the preemption question in these

cases should be controlled by Boyle, which authorizes

displacement of state law only when a federal contract imposes

a directly conflicting duty on a contractor. Because there is no

such conflict here -- indeed, because the duties imposed are

congruent rather than incompatible -- there is no warrant for

preemption.

Nonetheless, I cannot say that my colleagues’ arguments in

favor of extending Boyle to the combatant activities exception

lack weight. What I can say, in agreement with them, is that

even if we do extend Boyle, “the ‘scope of displacement’ of the

preempted non-federal substantive law must be carefully

tailored so as to coincide with the bounds of the federal interest

being protected.” Slip Op. at 14 (quoting Boyle, 487 U.S. at

512). Subpart III.A sets out what the appropriate “scope of

displacement” would be were we to rely upon the combatant

activities exception, and then explains why these cases fall

outside that scope. Subpart III.B discusses the problems posed

by the essentially untailored test my colleagues apply instead.

27

The court states that preemption of state law will not leave the

plaintiffs “totally bereft of all remedies . . . as they will still retain

rights under the Foreign Claims Act.” Slip Op. at 14. But plaintiffs

have no “rights” under that Act, which merely authorizes designated

officials to make (or not make) certain payments as a matter of their

unreviewable discretion. 10 U.S.C. §§ 2734, 2735; see Collins v.

United States, 67 F.3d 284, 286-89 (Fed. Cir. 1995); Niedbala v.

United States, 37 Fed. Cl. 43, 46, 50 (1996).

32

A

The FTCA’s combatant activities exception preserves the

United States’ sovereign immunity for “[a]ny claim arising out

of the combatant activities of the military or naval forces . . .

during time of war.” 28 U.S.C. § 2680(j). According to the

statutory text, that exception -- like the discretionary function

exception, the other exceptions, and the FTCA as a whole --

applies only in “civil actions . . . against the United States” and

only for injuries caused by an “employee of the Government.”

Id. § 1346(b)(1). In light of the FTCA’s text, the Boyle Court

crafted preemption conditions that would assure that the

discretionary function in question “was considered by a

Government officer, and not merely by the contractor itself.”

487 U.S. at 512. If we are to extend Boyle to the combatant

activities exception, we must demand the same assurance.

Hence, for preemption to be appropriate, it must be for “claim[s]

arising out of the combatant activities of the military or naval

forces,” 28 U.S.C. § 2680(j) (emphasis added), and not for those

arising out of acts performed “by the contractor itself,” Boyle,

487 U.S. at 512.

How, then, can we tell whether a contractor’s conduct

actually involved the combatant activities of the military? In

this respect, I agree with my colleagues that, at a minimum, the

contractor must be “under the military’s control.” Slip Op. at

12. I disagree, however, as to how to determine the existence of

such control. In the military, control is achieved through the

chain of command. And the official view of the U.S.

Department of Defense is that private contractors accompanying

the Armed Forces in the field are not in that chain.

The DOD’s position, as set out in its regulations governing

“Contractors Accompanying the Force,” is that contractors are

responsible for the supervision of their own employees and that

33

their personnel are not in the military chain of command. The

regulations state:

The commercial firm(s) providing battlefield support

services will perform the necessary supervisory and

management functions of their employees. Contractor

employees are not under the direct supervision of

military personnel in the chain of command.

U.S. DEP’T OF THE ARMY, REG. 715-9, CONTRACTORS

ACCOMPANYING THE FORCE § 3-2(f) (1999). The regulations

further state: “Contracted support service personnel shall not be

supervised or directed by military or Department of the Army

(DA) civilian personnel.” Id. § 3-3(b). Titan’s contract with the

Army is consistent with this position. See Titan Statement of

Work § C-1.1 (Titan J.A. 386) (“The Contractor shall provide all

. . . supervision, and other items and services . . . necessary to

provide foreign language interpretation and translation services

in support of United States (U.S.) Forces.”).28

The Army Field Manual on “Contractors on the Battlefield”

is, if anything, even more emphatic on these points:

Management of contractor activities is accomplished

through the responsible contracting organization, not

the chain of command. Commanders do not have

direct control over contractors or their employees

(contractor employees are not the same as government

28

Titan’s contract further states that “[p]ersonnel performing work

under this contract shall remain employees of the Contractor and will

not be considered employees of the Government.” Id. § C-1.4.1 (Titan

J.A. 387). CACI’s contract states that its employees “are considered

non-combatants.” CACI Statement of Work ¶ 20(j) (CACI J.A. 332).

34

employees); only contractors manage, supervise, and

give directions to their employees.

U.S. DEP’T OF THE ARMY, FIELD MANUAL 3-100.21,

CONTRACTORS ON THE BATTLEFIELD § 1-22 (2003). As the

Field Manual further explains:

It is important to understand that the terms and

conditions of the contract establish the relationship

between the military (US Government) and the

contractor; this relationship does not extend through

the contractor supervisor to his employees. Only the

contractor can directly supervise its employees. The

military chain of command exercises management

control through the contract.

Id. § 1-25; see also id. § 4-45 (“Maintaining discipline of

contractor employees is the responsibility of the contractor’s

management structure, not the military chain of command. . . .

It is the contractor who must take direct responsibility and action

for his employee’s conduct.”); JOINT CHIEFS OF STAFF, JOINT

PUB. 4-0, DOCTRINE FOR LOGISTIC SUPPORT OF JOINT

OPERATIONS, at V-8 (2000) (Titan J.A. 568) (stating that

“[c]ontract employees are disciplined by the contractor” and that

“[c]ommanders have no penal authority to compel contractor

personnel to perform their duties”).

In sum, under the existing regulatory regime, contractor

personnel are not subject to the command and control of the

military. The responsibility for their supervision belongs to

their civilian employers. “Management of contractor activities

is accomplished through the responsible contracting

organization, not the chain of command.” FIELD MANUAL 3-

100.21, § 1-22. And “[c]ontracted support service personnel

shall not be supervised or directed by military or Department of

35

the Army (DA) civilian personnel.” ARMY REG. 715-9, § 3-3(b).

The government exercises control only “through the contract,”

FIELD MANUAL 3-100.21, § 1-25, which gives the government

no more control than any contracting party has over its

counterparty. And that -- without more -- is not enough to make

the conduct of a contractor “the combatant activities of the

military or naval forces.” 28 U.S.C. § 2680(j) (emphasis

added).

Of course, the fact that preemption is not warranted by

application of the combatant activities exception does not mean

that preemption is never warranted. If a plaintiff challenges

contractor activity that has been authorized or directed by the

military, preemption by application of the discretionary function

exception may result -- as it did in Boyle. There is no evidence

in the record of these cases, however, that the brutality the

plaintiffs allege was authorized or directed by the United States.

B

My colleagues reach a different disposition than I do under

the combatant activities exception because they employ a

different test for preemption. The test they adopt is as follows:

“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.”

Slip Op. at 16. But what does “integrated into” mean? How

“integrated” into combatant activities must the contractor be?

And what does “retains command authority” mean in light of the

DOD regulations discussed above? My colleagues have created

a vague and amorphous test and, in so doing, have invited

precisely the kind of litigation they fear.

36

Today’s opinion further holds that “the district judge

properly focused” not on “the contract terms,” but “on the chain

of command and the degree of integration that, in fact, existed

between the military and both contractors’ employees.” Slip

Op. at 7 (emphasis added). But why should that be the proper

focus? Why should we ignore the military’s own description of

its chain of command -- as set forth in its contracts, regulations,

and manuals -- and instead investigate the facts on the ground?

Does this not again invite the wide-ranging judicial inquiry --

with affidavits, depositions, and conflicting testimony -- that the

court rightly abjures? The irony is again evident: we must have

a robust contractor defense so as not to interfere with the

Executive’s conduct of war; but in applying that defense, we do

not take the military at its word and instead inquire into the

actual operation of its chain of command.

None of these problems are apparent in today’s opinion, but

that is only because the court does not apply its test to the facts

of these cases. Instead, it simply states that “there is no dispute

that [the contract employees] were in fact integrated and

performing a common mission with the military under ultimate

military command.” Slip Op. at 11. But there is in fact

considerable dispute over whether the contract employees were

truly under the military’s command at Abu Ghraib. The

plaintiffs made that point in this court,29 and they submitted

substantial evidence of lack of military control in the district

court.

For example, the plaintiffs submitted an affidavit from the

Brigadier General in charge at Abu Ghraib, who declared: “The

29

See, e.g., Plaintiffs-Appellants’ Br. 25 (“A reasonable jury could

certainly find that the [Titan] translators who conspired with CACI

employees to abuse Plaintiffs were not under the United States

military’s command or control.”).

37

Titan translators and other corporate employees were not

integrated into the military chain of command. . . . [M]ilitary

officials could not give Titan translators and other corporate

employees direct orders.” Decl. of Brig. Gen. Janis Karpinski

¶ 7 (Titan J.A. 725-26). Similarly, an affidavit from a Military

Intelligence Specialist at the prison stated: “Titan translators

. . . did not act like soldiers, and my unit did not treat them like

soldiers. They did not fall within the military chain of command

. . . . [W]e had no means of disciplining Titan translators if they

did not do what we requested.” Decl. of Anthony Lagouranis

¶¶ 11-12 (Titan J.A. 733). Affidavits from Titan employees

were in accord. A Titan Translator affirmed that: “I received

assignments from soldiers, and tried to maintain a good

relationship with them, but they could not give me orders. I was

employed by Titan -- and only Titan could fire me. I did not

report to a military chain of command.” Decl. of Marwan

Mawiri ¶ 9 (Titan J.A. 519). And a Titan employee who

supervised Titan translators in Iraq declared: “Only the Titan

management had the power to supervise and discipline Titan

translators. . . . The military could not fire or discipline a Titan

employee.” Decl. of Thomas Crowley ¶¶ 7-8 (Titan J.A. 515).

Needless to say, there was contrary evidence as well. But

surely the plaintiffs’ testimonial affidavits, alone or in

combination with DOD’s regulatory and contractual statements,

are sufficient to create a genuine issue of material fact. And for

that reason, the defendants are not entitled to judgment as a

matter of law at the current stage of this litigation, even under

my colleagues’ own test. See FED. R. CIV. P. 56(c) (providing

that summary judgment should be granted only if “there is no

genuine issue as to any material fact”); see also Boyle, 487 U.S.

at 514 (holding that “whether the facts establish the conditions

for the [preemption] defense is a question for the jury”). That

the court does not reach this conclusion only confirms the

38

breadth of the protective cloak it has cast over the activities of

private contractors.30

IV

No congressional statute bars the plaintiffs’ state-law

actions from running their ordinary course in these cases.

Indeed, the only cited statute suggests the opposite. No

statement of the Executive Branch declares that its interests

require dismissal of these cases. Again, the only indications we

have from the government are to the contrary. Nor is there any

claim that “the state-imposed duty of care that is the asserted

basis of the contractor[s’] liability . . . is precisely contrary to the

duty imposed by the Government contract,” Boyle, 487 U.S. at

509, or even that the contractors came within the military’s view

of its chain of command.

Because “[c]ourts should preempt state law only when the

justification for preemption is fairly traceable to the foreign

policy choices not of the federal courts, but rather of the federal

political branches,” Jack Goldsmith, Statutory Foreign Affairs

Preemption, 2000 SUP. CT. REV. 175, 213, and because the

political branches have not made such policy choices evident

here, I respectfully dissent.

30

Because I conclude that we should permit the state-law claims

to go forward at this stage, and because the plaintiffs do not contend

that their Alien Tort Statute claims would provide them with different

relief, see 28 U.S.C. § 1350, I do not address the latter.