# Al Shimari v. CACI International, Inc. > Court of Appeals for the Fourth Circuit · May 14, 2012 · 679 F.3d 205 URL: https://www.frixlaw.com/law-library/cases/799799 ## Case - **Full name:** Suhail Najim Abdullah AL SHIMARI; Taha Yaseen Arraq Rashid; Sa’ad Hamza Hantoosh Al-Zuba’e; Salah Hasan Nusaif Jasim Al-Ejaili, Plaintiffs-Appellees, v. CACI INTERNATIONAL, INCORPORATED; CACI Premier Technology, Incorporated, Defendants-Appellants. Kellogg Brown & Root Services, Incorporated, Amicus Supporting Appellants, Professors of Civil Procedure and Federal Courts, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane, Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; Retired Military Officers; Earthrights International; International Human Rights Organizations and Experts, Human Rights First, the Center for Victims of Torture, the International Commission of Jurists, the Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellees, United States of America, Amicus Curiae. Wissam Abdullateff Sa’eed Al-Quraishi, Plaintiff-Appellee, L-3 Services, Incorporated, Defendant-Appellant, and Adel Nakhla; CACI International, Incorporated; CACI Premier Technology, Incorporated, Defendants. Professors of Civil Procedure and Federal Courts, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane, Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; Retired Military Officers; Earthrights International; International Human Rights Organizations and Experts, Human Rights First, the Center for Victims of Torture, the International Commission of Jurists, the Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee, United States of America, Amicus Curiae. Wissam Abdullateff Sa’eed Al-Quraishi, Plaintiff-Appellee, v. Adel Nakhla, Defendant-Appellant, and L-3 Services, Incorporated; CACI International, Incorporated; CACI Premier Technology, Incorporated, Defendants. Professors of Civil Procedure and Federal Courts, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane, Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz, Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; Retired Military Officers; Earthrights International; International Human Rights Organizations and Experts, Human Rights First, the Center for Victims of Torture, the International Commission of Jurists, the Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee, United States of America, Amicus Curiae - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** May 14, 2012 - **Citations:** 679 F.3d 205 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Traxler, Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Duncan, Agee, Davis, Keenan, Wynn, Diaz, Floyd - **Cited by:** 44 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/799799 ## How later opinions describe it (automated extraction) - stating that we have “jurisdiction over an appeal ... ‘if it challenge^] the materiality of factual issues,’ ” but “we lack jurisdiction if such an appeal ‘challenges the district court’s genuineness ruling — that genuine issues exist concerning material facts.’ ” (quoting Baz… - noting that the Court of Appeals may consider and rule on “an interlocutory appeal of a denial of immunity ... of... an ostensibly fact-bound issue that may be resolved as a matter of law as whether facts that are undisputed or viewed in a particular light are material to the … - rejecting existence of an independent basis for jurisdiction by virtue of the defendants asserting the “law-of-war defense” under Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1878), and Dow v. Johnson, 100 U.S. 158, 25 L.Ed. 632 (1879); preemption by the “combatant activi… ## Opinion text Filed: May 14, 2012 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1335 (1:08-cv-00827-GBL-JFA) SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID; SA'AD HAMZA HANTOOSH AL-ZUBA'E; SALAH HASAN NUSAIF JASIM AL-EJAILI, Plaintiffs - Appellees, v. CACI INTERNATIONAL, INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED, Defendants - Appellants. -------------------- KELLOGG BROWN & ROOT SERVICES, INCORPORATED, Amicus Supporting Appellants, PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL; INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self- Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellees, UNITED STATES OF AMERICA, Amicus Curiae. No. 10-1891 (8:08-cv-01696-PJM) WISSAM ABDULLATEFF SA'EED AL-QURAISHI, Plaintiff - Appellee, v. L-3 SERVICES, INCORPORATED, Defendant – Appellant, and ADEL NAKHLA; CACI INTERNATIONAL, INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED, Defendants. -------------------- PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and 2 International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL; INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self- Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee, UNITED STATES OF AMERICA, Amicus Curiae. No. 10-1921 (8:08-cv-01696-PJM) WISSAM ABDULLATEFF SA'EED AL-QURAISHI, Plaintiff - Appellee, v. ADEL NAKHLA, Defendant – Appellant, and L-3 SERVICES, INCORPORATED; CACI INTERNATIONAL, INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED, Defendants. 3 -------------------- PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL; INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self- Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee, UNITED STATES OF AMERICA, Amicus Curiae. O R D E R The Court amends its opinion filed May 11, 2012, as follows: On page 9, attorney information section, line 17, the names of “Raymond B. Biagini, Lawrence S. Ebner, MCKENNA LONG & ALDRIDGE LLP, Washington, D.C., for Kellogg Brown & Root Services, Incorporated, Amicus Supporting Appellants CACI 4 International, Incorporated, and CACI Premier Technology, Incorporated” are added. For the Court – By Direction /s/ Patricia S. Connor Clerk 5 ON REHEARING EN BANC PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT SUHAIL NAJIM ABDULLAH AL  SHIMARI; TAHA YASEEN ARRAQ RASHID; SA’AD HAMZA HANTOOSH AL-ZUBA’E; SALAH HASAN NUSAIF JASIM AL-EJAILI, Plaintiffs-Appellees, v. CACI INTERNATIONAL, INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED, Defendants-Appellants.  No. 09-1335 KELLOGG BROWN & ROOT SERVICES, INCORPORATED, Amicus Supporting Appellants, PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law,  2 AL SHIMARI v. CACI INTERNATIONAL Eric M. Freedman, Maurice A.  Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University  School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL; INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists,  AL SHIMARI v. CACI INTERNATIONAL 3 The Working Group Established  by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self- Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David  Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellees, UNITED STATES OF AMERICA, Amicus Curiae.  Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:08-cv-00827-GBL-JFA) WISSAM ABDULLATEFF SA’EED AL-  QURAISHI, Plaintiff-Appellee, L-3 SERVICES, INCORPORATED,  No. 10-1891 Defendant-Appellant, and  4 AL SHIMARI v. CACI INTERNATIONAL  ADEL NAKHLA; CACI INTERNATIONAL, INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED, Defendants. PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law,  Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic, University of Minnesota Law School, Jonathan Hafetz Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; RETIRED MILITARY OFFICERS;  AL SHIMARI v. CACI INTERNATIONAL 5 EARTHRIGHTS INTERNATIONAL;  INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human Rights First, The Center for Victims of Torture, The International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-  Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee, UNITED STATES OF AMERICA, Amicus Curiae.  6 AL SHIMARI v. CACI INTERNATIONAL WISSAM ABDULLATEFF SA’EED AL-  QURAISHI, Plaintiff-Appellee, v. ADEL NAKHLA, Defendant-Appellant, and L-3 SERVICES, INCORPORATED; CACI INTERNATIONAL, INCORPORATED; CACI PREMIER TECHNOLOGY, INCORPORATED, Defendants.  No. 10-1921 PROFESSORS OF CIVIL PROCEDURE AND FEDERAL COURTS, Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine School of Law, Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law, Jennifer M. Green, Director, Human Rights Litigation and International Advocacy Clinic,  AL SHIMARI v. CACI INTERNATIONAL 7 University of Minnesota Law  School, Jonathan Hafetz Associate Professor of Law, Seton Hall University School of Law, Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, George Washington University School of Law, Stephen I. Vladeck, Professor of Law and Associate Dean for Scholarship, American University Washington College of Law; RETIRED MILITARY OFFICERS; EARTHRIGHTS INTERNATIONAL; INTERNATIONAL HUMAN RIGHTS ORGANIZATIONS AND EXPERTS, Human Rights First, The Center for Victims of Torture, The  International Commission of Jurists, The Working Group Established by the Commission on Human Rights on the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self- Determination, Human Rights Watch, Ilias Bantekas, John Cerone, Geoffrey Corn, David Glazier, Kevin Jon Heller, Michael Newton, Marco Sassoli, Gary Solis, Scott M. Sullivan, Dr. Anicee Van Engeland, Amici Supporting Appellee,  8 AL SHIMARI v. CACI INTERNATIONAL UNITED STATES OF AMERICA,   Amicus Curiae.  Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:08-cv-01696-PJM) Argued: January 27, 2012 Decided: May 11, 2012 Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, DIAZ, and FLOYD, Circuit Judges. Appeals dismissed by published opinion. Judge King wrote the opinion, in which Chief Judge Traxler and Judges Motz, Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and Floyd joined. Judge Duncan wrote a concurring opinion, in which Judge Agee joined. Judge Wynn wrote a concurring opinion. Judge Wilkinson wrote a dissenting opinion, in which Judge Niemeyer and Judge Shedd joined. Judge Nie- meyer wrote a dissenting opinion, in which Judge Wilkinson and Judge Shedd joined. COUNSEL ARGUED: Joseph William Koegel, Jr., STEPTOE & JOHN- SON, LLP, Washington, D.C.; Ari S. Zymelman, WILLIAMS & CONNOLLY, LLP, Washington, D.C., for Appellants. AL SHIMARI v. CACI INTERNATIONAL 9 Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York; Susan L. Burke, BURKE PLLC, Washington, D.C., for Appellees. H. Thomas Byron, III, UNITED STATES DEPARTMENT OF JUSTICE, Washing- ton, D.C., for Amicus Curiae. ON BRIEF: John F. O’Connor, STEPTOE & JOHNSON, LLP, Washington, D.C., for Appel- lants CACI International, Incorporated and CACI Premier Technology, Incorporated. Eric R. Delinsky, ZUCKERMAN SPAEDER LLP, Washington, D.C.; F. Whitten Peters, F. Greg Bowman, WILLIAMS & CONNOLLY, LLP, Washing- ton, D.C., for Appellants L-3 Services, Incorporated and Adel Nakhla. Susan M. Sajadi, BURKE PLLC, Washington, D.C.; Katherine Gallagher, J. Wells Dixon, CENTER FOR CON- STITUTIONAL RIGHTS, New York, New York; Joseph F. Rice, MOTLEY RICE LLC, Mt. Pleasant, South Carolina; Shereef Hadi Akeel, AKEEL & VALENTINE, PC, Troy, Michigan, for Appellees. Raymond B. Biagini, Lawrence S. Ebner, MCKENNA LONG & ALDRIDGE LLP, Washington, D.C., for Kellogg Brown & Root Services, Incorporated, Amicus Supporting Appellants CACI International, Incorporated, and CACI Premier Technology, Incorporated. Joshua S. Devore, Agnieszka M. Fryszman, Maureen E. McOwen, COHEN MILSTEIN SELL- ERS & TOLL PLLC, Washington, D.C., for Professors of Civil Procedure and Federal Courts, Amici Supporting Appel- lees. Jennifer B. Condon, SETON HALL UNIVERSITY SCHOOL OF LAW, Center for Social Justice, Newark, New Jersey; John J. Gibbons, Lawrence S. Lustberg, Jonathan M. Manes, GIBBONS P.C., Newark, New Jersey, for Retired Military Officers, Amici Supporting Appellees. Gabor Rona, Melina Milazzo, HUMAN RIGHTS FIRST, New York, New York; Robert P. LoBue, Ella Campi, Richard Kim, Elizabeth Shofner, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York, for International Human Rights Orga- nizations and Experts, Amici Supporting Appellees. Marco Simons, Richard Herz, Marissa Vahlsing, Jonathan Kaufman, EARTHRIGHTS INTERNATIONAL, Washington, D.C., for Earthrights International, Amicus Supporting Appellees. Tony West, Assistant Attorney General, Michael S. Raab, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. 10 AL SHIMARI v. CACI INTERNATIONAL OPINION KING, Circuit Judge: Following the 2003 invasion of Iraq, the United States mili- tary took control of Abu Ghraib prison near Baghdad, using it to detain criminals, enemies of the provisional government, and other persons thought to possess information regarding the anti-Coalition insurgency. The United States contracted with CACI International, Incorporated (with CACI Premier Technology, Incorporated, together referred to herein as "CACI"), and Titan Corporation, now L-3 Services, Incorpo- rated ("L-3"), to provide civilian employees to assist the mili- tary in communicating with and interrogating this latter group of detainees. On June 30, 2008, a number of Iraqis who had been detained at Abu Ghraib and elsewhere filed lawsuits against CACI and L-3 in the Southern District of Ohio and the Dis- trict of Maryland, alleging that the contractors and certain of their employees were liable in common law tort and under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, for torturing and abusing them during their incarceration. Following the unopposed transfer of the Ohio action to the Eastern District of Virginia, where CACI is headquartered, Suhail Najim Ab- dullah Al Shimari and three co-plaintiffs submitted an Amended Complaint asserting that CACI, through its employ- ees, agents, and government coconspirators, deprived them of basic human necessities, beat them and ran electric current through their bodies, subjected them to sexual abuse and humiliation, and traumatized them with mock executions and other sadistic acts. In the operative Second Amended Com- plaint filed in the companion litigation, seventy-two plaintiffs, headed by Wissam Abdullateff Sa’eed Al-Quraishi, detailed similar allegations against L-3 and Adel Nakhla, an L-3 employee residing in Maryland.1 1 CACI and L-3 were each initially named as defendants in both law- suits. Within a couple of months following commencement of the litiga- AL SHIMARI v. CACI INTERNATIONAL 11 I. A. On September 15, 2008, CACI moved to dismiss the Amended Complaint filed in the Eastern District of Virginia, maintaining generally that, among other things: (1) the dis- pute presented a nonjusticiable political question; (2) the inev- itable application of the law of occupied Iraq rendered CACI, as part of the occupying power, immune from suit under Coleman v. Tennessee, 97 U.S. 509 (1878), and Dow v. John- son, 100 U.S. 158 (1879); (3) the plaintiffs’ claims were pre- empted by the "combatant activities" exception to the Federal Tort Claims Act (the "FTCA"), see 28 U.S.C. § 2680(j), dis- cussed in Ibrahim v. Titan Corp., 556 F. Supp. 2d 1 (D.D.C. 2007), and subsequently adopted on appeal, see Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) (citing Boyle v. United Tech. Corp., 487 U.S. 500 (1988)); and (4) the company was entitled to absolute official immunity in accordance with Mangold v. Analytic Services, Inc., 77 F.3d 1442 (4th Cir. 1996), because its employees had performed delegated gov- ernmental functions. With respect to the ATS claims, CACI proffered several additional arguments, none of them relevant here in light of the claims’ eventual dismissal. See infra at 12. L-3’s motion to dismiss the Second Amended Complaint in the Maryland action, filed on November 26, 2008, and in which Nakhla joined, was predicated essentially along the same lines as CACI’s, though it characterized Mangold as involving the application of derivative sovereign immunity instead of absolute official immunity. As CACI had previ- tion, however, CACI was voluntarily dismissed from the Maryland action and the same was accomplished with respect to L-3 in the Virginia pro- ceedings. See Fed. R. Civ. P. 41(a)(1)(A)(i). On March 9, 2009, the district court in Maryland denied without prejudice L-3’s motion to transfer venue of that case to the Eastern District of Virginia. 12 AL SHIMARI v. CACI INTERNATIONAL ously done, L-3 invoked the political question doctrine, cited the Supreme Court’s decisions in Coleman and Dow (the "law-of-war defense"), and requested (through supplemental briefing) that the court adopt the combatant activities excep- tion ultimately applied in Saleh ("Saleh preemption"). L-3 similarly advocated for dismissal of the ATS claims on sub- stantially the same grounds identified by CACI.2 1. On March 19, 2009, the district court in Virginia entered a Memorandum Order dismissing the ATS claims against CACI, but permitting the common-law tort claims to proceed. See Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d 700 (E.D. Va. 2009). In so ruling, the court acknowledged its considerable reservations that the action implicated a political question, in that CACI, a private entity, was not the United States, and only low-level military and governmental person- nel appeared to have been involved in the alleged mistreat- ment. See id. at 708-14. The court was similarly doubtful that the foreseeable application of Iraqi law required dismissal in light of CACI’s apparent status as an arms-length contractor, "because even if the law of a foreign jurisdiction were to gov- ern any of the Plaintiffs’ claims, it would not regulate the con- duct of the United States, a non-party to this suit between private parties." Id. at 725. The dividing line between the bona fide military and its civilian support personnel also fueled the district court’s uncertainty that the latter could have engaged in wartime activities as a "combatant" for purposes of adopting the D.C. Circuit’s theory of FTCA preemption. See Al Shimari, 657 F. 2 The Maryland district court denied L-3’s dismissal motion as to the ATS claims. See infra at 15. L-3 maintains on appeal that this ruling was in error, but it confines its argument to the identical grounds urged in sup- port of its primary contention that the court below incorrectly declined to dismiss the state-law tort claims. AL SHIMARI v. CACI INTERNATIONAL 13 Supp. 2d at 720-21. The court concluded that, in any event, the plaintiffs’ allegations of torture at the hands of CACI failed to implicate the uniquely federal interests or irreconcil- able conflict with state law that animated the Supreme Court’s decision in Boyle, on which Saleh relied. See id. at 722-25. Regarding CACI’s claim of derivative immunity under Mangold, the district court set forth its view that the validity of such a claim depends on whether its proponent, in commit- ting the act complained of, was "‘exercising discretion while acting within the scope of their employment.’" Al Shimari, 657 F. Supp. 2d at 715 (emphasis omitted) (quoting Mangold, 77 F.3d at 1446). Citing "a very limited factual record," the court expressed its skepticism that CACI had established at the dismissal stage that its treatment of the plaintiffs at Abu Ghraib involved the exercise of discretion. Id. The court stated further that it was "completely bewildered" by the sug- gestion that it could accept CACI’s representations that the company had performed within the scope of its agreement with the government "when the contract is not before the Court on this motion." Id. at 717. On March 23, 2009, CACI noted its appeal (No. 09-1335) from the district court’s ruling. 2. The assertion of Mangold immunity was viewed much the same way by the district court in Maryland, which, in its Opinion of July 29, 2010, concluded that, "relying on the information in the [Second Amended] Complaint, it is clearly too early to dismiss Defendants." Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 735 (D. Md. 2010).3 The district court per- (Text continued on page 15) 3 In Mangold, we reversed the district court’s denial of immunity to the defendant government contractor and its employees in a lawsuit brought by an Air Force officer and his wife for statements the contractor made to military officials investigating the officer’s alleged misconduct. L-3 and CACI have each relied heavily on Mangold for the proposition that our decision in that case likewise entitles them to immunity for the tort claims 14 AL SHIMARI v. CACI INTERNATIONAL asserted by the plaintiffs here. The Maryland district court, noting the defendants’ additional reliance on Butters v. Vance International, Inc., 225 F.3d 462 (4th Cir. 2000), characterized the immunity claimed as being in the nature of derivative sovereign immunity, which the court described as "protect[ing] agents of the sovereign from liability for carrying out the sovereign’s will." Al-Quraishi, 728 F. Supp. 2d at 736. The court distin- guished Mangold, opining that the immunity discussed therein "was based on a combination of derivative absolute official immunity and witness immunity, doctrines that differ from derivative sovereign immunity." Al- Quraishi, 728 F. Supp. 2d at 736. The distinction drawn by the district court finds support in the text of Mangold, as expressed by our careful observation that the public policy justifying the grant of absolute immunity to federal officials exercising job-related discretion "provide[d] only a partial foundation for protecting" the defendant contractor in that case. Mangold, 77 F.3d at 1448 (citing Westfall v. Ervin, 484 U.S. 292, 300 (1988)). The remainder of that foun- dation was supplied by "the common law privilege to testify with absolute immunity in courts of law, before grand juries, and before government investigators." Id. at 1449. According to the Maryland district court, deriv- ative absolute official immunity (invoked by CACI and more directly addressed by the Virginia district court in Al Shimari) "ensures that discre- tionary governmental decision makers are able to efficiently exercise their discretion in the best interests of the Government without ‘the potentially debilitating distraction of defending private lawsuits.’" Id. (quoting Man- gold, 77 F.3d at 1446). While Mangold immunity certainly has the effect of removing the potential distraction of litigation, it is important to note the narrow scope of the immunization actually authorized in that case, which we applied "only insofar as necessary to shield statements and information, whether truthful or not, given by a government contractor and its employees in response to queries by government investigators engaged in an official investigation." 77 F.3d at 1449. In light of our disposition of these appeals, infra, we express no opinion as to the merits of any immu- nity asserted by the defendants in general, or as to the pertinence of our Mangold precedent in particular, but instead leave those matters for the district courts to consider in the first instance should they arise on remand. The difference between derivative sovereign immunity and derivative absolute official immunity (including any offshoots thereof) appears to be a fine one that may depend on the degree of discretion afforded the con- tractor by the government, which, at this stage of the litigation, is not a question capable of final resolution in either proceeding. Were that not the AL SHIMARI v. CACI INTERNATIONAL 15 ceived no such record deficiencies concerning L-3’s and Nakhla’s alternative bases for dismissal, however, deeming the facts as pleaded sufficient to reject outright both defen- dants’ arguments. The court thus denied the motion to dismiss with respect to all claims, including those premised on the ATS. See id. at 724-33, 736-60. From the court’s accompany- ing Order, L-3 noted its appeal (No. 10-1891) on August 4, 2010, followed two days later by another appeal (No. 10- 1921) noted on behalf of Nakhla. B. The appeals in Al-Quraishi were consolidated and argued in seriatim with the Al Shimari appeal before a panel of this Court on October 26, 2010. Apart from urging our affirmance on the merits, the plaintiffs in each matter alternatively main- tained that we lacked appellate jurisdiction over the district courts’ non-final orders denying the contractors’ respective motions to dismiss. On September 21, 2011, we issued opin- ions in both cases, in which a majority of the panel concluded that jurisdiction was proper in this Court, and that the district courts had erred in permitting the claims against the contrac- tors to proceed. See Al Shimari v. CACI Int’l, Inc., 658 F.3d 413 (4th Cir. 2011); Al-Quraishi v. L-3 Servs., Inc., 657 F.3d case, the distinction could be crucial, in that fully developed rulings deny- ing absolute official immunity are immediately appealable, while denials based on sovereign immunity (or derivative claims thereof) may not be. See Hous. Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 279 (5th Cir. 2007) (denial of derivative sovereign immunity not appealable); Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir. 1995) (denial of sovereign immunity not appealable); Pullman Const. Indus., Inc. v. United States, 23 F.3d 1166, 1168 (7th Cir. 1994) (same). But see In re World Trade Ctr. Disaster Site Litigation, 521 F.3d 169, 191 (2d Cir. 2008) (disagreeing with foregoing authorities). Although the degree to which Mangold controls the specific assertions of immunity in these cases is yet to be decided, we will, for simplicity’s sake, continue to refer to L- 3 and CACI as having asserted "Mangold immunity." 16 AL SHIMARI v. CACI INTERNATIONAL 201 (4th Cir. 2011).4 Consistently therewith, we entered sepa- rate judgments reversing the orders on appeal and remanding with instructions to dismiss both proceedings. On November 8, 2011, upon the timely petitions of the plaintiffs, see Fed. R. App. P. 35(b)-(c), we entered an Order granting en banc rehearing of all three appeals, thereby vacat- ing our prior judgments. The appeals were thereafter consoli- dated for purposes of oral argument, which was conducted before the en banc Court on January 27, 2012.5 Having fully considered the briefs and arguments of the parties, together with the written and oral submissions of the amici curiae per- mitted leave to participate, we conclude that we lack jurisdic- tion over these interlocutory appeals, and we therefore dismiss them.6 II. A. Except for the limited categories of interlocutory orders set forth at 28 U.S.C. § 1292, federal appellate jurisdiction is 4 We released both of our panel opinions on September 21, 2011, fol- lowing the Supreme Court’s denial of certiorari in Saleh on June 27, 2011. We had previously, on March 11, 2011, placed these appeals in abeyance pending resolution of the Saleh certiorari petition. 5 At our invitation, the Department of Justice, on behalf of the United States, submitted an amicus brief and participated in oral argument. Therein, the government took the position that we were without jurisdic- tion to decide these appeals. Just prior to argument, we granted the defen- dants leave to submit supplemental briefs in response to the government’s amicus submission, after which the plaintiffs moved to tender their own supplemental briefs. We grant the plaintiffs’ motions and accept their sup- plemental replies for consideration. 6 The arguments and contentions before us in these appeals, though not identically presented or emphasized, are nonetheless substantially similar enough that we are content to continue the appeals’ consolidation for pur- poses of decision. Hereinafter, we shall refer to L-3 and Nakhla together as "L-3," and both of them collectively with CACI as the "appellants." AL SHIMARI v. CACI INTERNATIONAL 17 reserved for "final decisions of the district courts of the United States." 28 U.S.C. § 1291. It is undisputed that the decisions underlying these putative appeals are interlocutory, at least in the procedural sense, in that no final order or judg- ment has been entered by either district court. It is also with- out contest that neither order has been certified appealable by the issuing court pursuant to 28 U.S.C. § 1292(b), and that none of that statute’s provisions otherwise apply to confer jurisdiction on this Court. Consequently, the only way we may be entitled to review the orders on appeal is if they are among "that small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Expounding on the topic, the Supreme Court has emphasized that an appeal- able Cohen order must "[1] conclusively determine the dis- puted question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Will v. Hal- lock, 546 U.S. 345, 349 (2006) (alterations in original) (inter- nal quotation marks omitted). Cohen involved a stockholder’s derivative action for mis- management and fraud, in which the Supreme Court reviewed the district court’s threshold decision declining to enforce a state law requiring plaintiffs in such cases to post security ensuring payment of attorney fees in the event the defendant corporation prevailed. Deeming the appeal properly taken, the Court declared no exception to the jurisdictional prerequisites of 28 U.S.C. § 1291, but instead described what would subse- quently be coined the "collateral order doctrine," MacAlister v. Guterma, 263 F.2d 65, 67 (2d Cir. 1958), as a "practical, rather than a technical construction" of the statute. Cohen, 337 U.S. at 546. 18 AL SHIMARI v. CACI INTERNATIONAL The federal courts of appeals have consistently been charged with keeping a tight rein on the types of orders suit- able for appeal consistent with Cohen. We are therefore bound to maintain "a healthy respect for the virtues of the final-judgment rule." Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009); see also Will, 546 U.S. at 350 ("[W]e have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope.").7 The Supreme Court’s concern, as expressed through its repeated admonitions, is amply justified. The appellate courts are, by design, of limited jurisdiction; thus, accepting prejudg- ment appeals as a matter of course would "undermine[ ] effi- cient judicial administration and encroach[ ] upon the prerogatives of district court judges, who play a special role in managing ongoing litigation." Mohawk, 130 S. Ct. at 605 (internal quotation marks omitted). In addition, routine inter- locutory review would unacceptably subject meritorious law- suits to "the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) (internal quotation marks omitted). Moreover, there is no need to construe Cohen broadly given the existence of a suitable alternative. The "safety valve" of discretionary interlocutory review under 28 U.S.C. 7 This "modest scope" is apparent from the short list of orders approved by the Supreme Court for immediate review under Cohen. See Osborn v. Haley, 549 U.S. 225, 238-39 (2007) (denial of substitution of United States under Westfall Act); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45 (1993) (denial to state of claimed Elev- enth Amendment immunity); Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982) (denial of qualified immunity from suit pursuant to 42 U.S.C. § 1983); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982) (denial to presi- dent of absolute immunity); Helstoski v. Meanor, 442 U.S. 500, 508 (1979) (denial of Speech and Debate Clause immunity); Abney v. United States, 431 U.S. 651, 660 (1977) (denial of double jeopardy bar). AL SHIMARI v. CACI INTERNATIONAL 19 § 1292(b) is frequently a "better vehicle for vindicating [cer- tain] serious . . . claims than the blunt, categorical instrument of [a] § 1291 collateral order appeal." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994). Accordingly, the collateral order doctrine should "never be allowed to swal- low the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered." Id. at 868 (citation omitted). B. Although a properly appealable collateral order under Cohen must of course satisfy all of the Will requirements, its hallmark is the encapsulation of a right whose abridgement is "effectively unreviewable" should appellate review await final judgment. See Henry v. Lake Charles Am. Press LLC, 566 F.3d 164, 177 (5th Cir. 2009) (describing unreviewability as "the fundamental characteristic of the collateral order doc- trine" (citation omitted)). The "critical question" in determin- ing whether the right at issue is effectively unreviewable in the normal course "is whether the essence of the claimed right is a right not to stand trial" — that is, whether it constitutes an immunity from suit. Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988) (internal quotation marks omitted). Absent an immediate appellate review of the denial of an immunity claim, the right not to stand trial "would be irretrievably lost." Id. (internal quotation marks omitted). By contrast, if the right at issue is one "not to be subject to a binding judgment of the court" — that is, a defense to liability — then the right can be vindicated just as readily on appeal from the final judg- ment, and the collateral order doctrine does not apply. Id. at 527. In assessing whether the right sought to be protected consti- tutes a true immunity and not merely a defense, "§ 1291 requires [the court] of appeals to view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye." Digital Equip., 511 U.S. at 873. As the Supreme Court has cautioned, 20 AL SHIMARI v. CACI INTERNATIONAL "[o]ne must be careful . . . not to play word games with the concept of a ‘right not to be tried,’" Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989), as "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a right not to stand trial," Digital Equip., 511 U.S. at 873. It is within the forego- ing framework that we review de novo the appealability of the district courts’ denial orders. See Mitchell v. Forsyth, 472 U.S. 511, 528-30 (1985) (equating denials of qualified immu- nity to collateral denials of other asserted immunities or of double jeopardy invocations, and deeming de novo standard proper based on non-deferential review of latter claims). III. In Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007), the District of Columbia Circuit confronted an attempted appeal from the district court’s interlocutory order refusing to dismiss an action brought by Indonesian villagers alleging serious injuries visited upon them by members of that nation’s military in the defendants’ private employ. Accord- ing to the defendants, the dispute presented a nonjusticiable political question. The court of appeals declined to address the merits of the issue, noting the absence of "a single case in which a federal appeals court held that denial of a motion to dismiss on political question grounds is an immediately appealable collateral order." Id. at 352.8 8 The D.C. Circuit was presented in Doe with the same argument the appellants make here: that the denial of a dismissal motion premised on the separation of powers doctrine is an appealable collateral order under Cohen because immediate review "is necessary to protect the executive branch from judicial intrusion into sensitive foreign policy matters" that could not be remedied on appeal from a final judgment. 473 F.3d at 351. The Doe court squarely rejected that mistaken notion, however, explaining that although the Supreme Court has "identif[ied] ‘honoring the separation of powers’ as a value that could support a party’s interest in avoiding trial, [the Court has] only d[one] so while discussing cases involving immu- nity." Id. AL SHIMARI v. CACI INTERNATIONAL 21 That case yet appears to be lacking, and the appellants do not contend to the contrary. L-3, however, ventures that an appellate court may determine whether an action is a political question or otherwise nonjusticiable when it has proper juris- diction over a different issue pursuant to Cohen or § 1292(b), if consideration of the former is "necessary to ensure mean- ingful review." Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51 (1991). We may also exercise so-called "pendent" appellate jurisdiction in circumstances where the question is "inextricably intertwined" with another that may be immedi- ately reviewed. Id.; see Rux v. Republic of Sudan, 461 F.3d 461, 476 (4th Cir. 2006). L-3’s argument necessarily supposes the existence of an otherwise valid jurisdictional basis for its appeal. Absent an independently reviewable issue with which the political ques- tion doctrine may be inexorably bound, or one that cannot be reviewed in a meaningful fashion without addressing the justi- ciability of the underlying dispute, we are without authority to make any pronouncement on that aspect of the appellants’ defense. We therefore withhold for the moment substantive comment on the political question doctrine, at least until we evaluate whether the law-of-war defense, Saleh preemption, or Mangold immunity provides the jurisdictional green light for us to proceed. A. The appellants characterize their former presence in Iraq as "occupying forces" (L-3) or "occupying personnel" (CACI) that are answerable "only to their country’s criminal laws," Opening Br. of CACI at 25, and thus "not subject to civil suits by the occupied," Opening Br. of L-3 at 22-23. In that regard, the appellants equate their situation with those of the Civil War soldiers in Coleman v. Tennessee, 97 U.S. 509 (1878), and Dow v. Johnson, 100 U.S. 158, 166 (1879), who sought relief from judgments entered against them for their wartime acts. The defendant in Coleman had been convicted and sen- 22 AL SHIMARI v. CACI INTERNATIONAL tenced to death by a Tennessee state court for murdering a civilian, though the same judgment and sentence had been previously imposed as the result of a United States Army court-martial. Dow, by contrast, involved a challenge to a civil judgment entered in Louisiana against a Union general after forces under his command had seized the plaintiff’s pri- vate property in furtherance of the war effort. Neither judgment was permitted to stand. In both cases, the Supreme Court considered the states of the Confederacy to have been "the enemy’s country," to whose tribunals the "[o]fficers and soldiers of the armies of the Union were not subject." Coleman, 97 U.S. at 515. The Court expressed its bewilderment that a contrary result could obtain "from the very nature of war," concluding that "the tribunals of the enemy must be without jurisdiction to sit in judgment upon the military conduct of the officers and soldiers of the invad- ing army. It is difficult to reason upon a proposition so mani- fest; its correctness is evident upon its bare announcement." Dow, 100 U.S. at 165. Some differences between the disputes at bar and those underlying Coleman and Dow are readily evident. Most salient is that the civilian employees of CACI and L-3 assigned to Abu Ghraib were not soldiers. The idea that those employees should nonetheless be treated like full-fledged members of the military pervades this litigation, though the concept resonates with more force as to some of the appel- lants’ other defenses, particularly Saleh preemption and Man- gold immunity. But cf. Ford v. Surget, 97 U.S. 594, 601-02 (1878) (relieving Mississippi civilian from liability for burn- ing landowner’s cotton where destruction ordered by Confed- erate army in face of Union advance and those "commands would have been undoubtedly enforced by the same means of coercion as if he had been an enlisted soldier"). The potential liability of government contractors was front and center in both Saleh and Mangold, and if the legal principles in either case (or both) are deemed apposite to the dispute at bar, there AL SHIMARI v. CACI INTERNATIONAL 23 is little question that the appellants, as contractors themselves, may avail themselves of them. Another distinction is that the appellants attempt to invoke the law-of-war defense exclusively on the assertion that their alleged wrongs will be evaluated under Iraqi law, and not the laws of Virginia, Maryland, or another state. If true, that may or may not be enough to bring Coleman and Dow into play, inasmuch as the overriding concern in those cases appears to have been less about the application of the criminal law of Tennessee or of Louisiana tort law (there being no suggestion that either differed significantly from the analogous law applied by the defendants’ states of citizenry), and more about the jurisdiction of the "foreign" courts. See Coleman, 97 U.S. at 516 (musing that "there would be something incongruous and absurd in permitting an officer or soldier of an invading army to be tried by his enemy"); Dow, 100 U.S. at 163 (iden- tifying "[t]he important question" for resolution as whether nation’s military could be held liable "in the local tribunals"). Here, of course, the appellants are being sued on their home turf, in courts that are indisputably domestic. Even assuming that the facts before us can be viewed in such a fashion to permit Coleman and Dow to apply, there is no indication from the opinions in those cases that the Supreme Court intended to construe the law-of-war defense as an immunity from suit, rather than merely an insulation from liability. See Dow, 100 U.S. at 165 (characterizing dispute as concerning personal jurisdiction); Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 500 (1989) ("[W]e have declined to hold the collateral order doctrine applicable where a district court has denied a claim . . . that the suit against the defendant is not properly before the . . . court because it lacks jurisdic- tion."). In its subsequent Ford opinion, with judgment having been entered against the defendant on a jury verdict, the Court in no way indicated that trial should not have been had. Indeed, it seems a bit curious to imagine the nineteenth century Court regarding its decisions in the Civil War cases 24 AL SHIMARI v. CACI INTERNATIONAL as having durable precedential effect; the appeals afforded an unusual opportunity for substantive domestic review of what were, in effect, foreign pronouncements of judgment. But to the extent that Coleman and Dow possess continued relevance beyond their immediate context, it is nonetheless clear that the issues presented in those cases were effectively reviewed and disposed of on appeal, and, as such, the manner in which the Supreme Court chose to resolve them fails to compel the con- clusion that immunity must be accorded all prospective defen- dants who insist they are similarly situated. The law-of-war defense thus provides no basis for an interlocutory appeal in this case. B. In a like fashion, Saleh preemption falls squarely on the side of being a defense to liability and not an immunity from suit. Immunity, according to the Supreme Court, derives from "an explicit statutory or constitutional guarantee that trial will not occur." Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989) (emphasis added).9 There is no contention that the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), from which Saleh preemption is derived, relied on any such explicit guarantee embodied in 9 The Supreme Court has properly dismissed the mistaken notion that Midland Asphalt’s "explicit . . . guarantee" requirement is in tension with the immediate appealability of an order denying qualified immunity, an inherently equivocal term that appears to connote only an implicit guaran- tee against the burdens of trial. Any tension can only be characterized as chimerical, however, in light of qualified immunity’s "good pedigree in public law," which more than makes up for its implicitness. Digital Equip., 511 U.S. at 875. The argument that an immunity need not be explicit in order for jurisdiction to lie under the collateral order doctrine "only leaves [the proponent of jurisdiction] with the unenviable task of explaining why other rights that might fairly be said to include an (implicit) ‘right not to stand trial’ aspect are less in need of protection by immediate review, or more readily vindicated on appeal from final judg- ment, than" the right the proponent asserts is an implicit right to be free from suit. Id. at 875-76. AL SHIMARI v. CACI INTERNATIONAL 25 statute or in the Constitution. Boyle preemption (and, thus, Saleh preemption) is, ipso facto, not immunity. We are not the first court to arrive at this ineluctable con- clusion. In Martin v. Halliburton, 618 F.3d 476, 487 (5th Cir. 2010), the Fifth Circuit similarly reckoned that "the comba- tant activities exception is not subject to a sui generis exemp- tion from the ordinary jurisdictional requirements for denials of preemption claims."10 Indeed, the Boyle Court itself repeat- edly framed the preemption it recognized as creating a mere defense to liability. See, e.g., 487 U.S. at 507 ("The imposi- tion of liability on Government contractors [in the military procurement context] will directly affect the terms of Govern- ment contracts."); id. at 511-12 ("The financial burden of judgments against the contractors would ultimately be passed through . . . to the United States itself."); id. at 512 ("[S]tate 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."). It is tempting, we suppose, to blur the line between an eventual frustration of liability and the more immediate right to avoid suit altogether. One might be persuaded to consider the words "preemption" and "immunity" as mere labels that are more or less synonymous with each other, or to presume that the former can effectively operate as the latter. But 10 See also Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259 (9th Cir. 2010), in which the court addressed its jurisdiction over an interlocutory appeal premised on the discretionary functions exception to the FTCA. According to the Rodriguez court, because the right recognized by Boyle was merely a "defense to judgment" — and not, like qualified immunity, a "right not to be required to go to trial" — nothing is irretrievably lost by the lack of an immediate appeal from an adverse pretrial ruling. Rodri- guez, 627 F.3d at 1266. The Ninth Circuit emphasized that Boyle did not devise a new species of immunity, but merely recognized that "‘whether the facts establish the conditions for the [government contractor] defense is a question for the jury.’" Id. at 1265 (quoting Boyle, 487 U.S. at 514). 26 AL SHIMARI v. CACI INTERNATIONAL merely repackaging for the sake of convenience the preemp- tion defense derived from Boyle as "combatant activities immunity," as our good colleague Judge Niemeyer does in speaking for the dissenters, post at 97, is patently incorrect. Though Boyle preemption, like sovereign immunity, may be invoked to bar state law claims, the encapsulated rights serve distinct purposes. State law claims are preempted under Boyle simply because the imposition of liability in such situa- tions is irreconcilable with uniquely federal interests. The right conferred through federal preemption, in other words, is the right not to be bound by a judgment stemming from state law duties. In stark contrast, immunity has consistently been adminis- tered as a protection against the burden of litigation alto- gether. See Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985). Further, as the court of appeals explained in Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259, 1265 (9th Cir. 2010), "[a]lthough the source of the government contractor defense [recognized in Boyle] is the United States’ sovereign immu- nity," the preemption defense is not itself a species thereof. To the contrary, entitlement to preemption "is only a corollary financial benefit flowing from the government’s sovereign immunity." Id. Accordingly, Boyle’s "government contractor defense does not confer sovereign immunity on contractors," and as such, the denial of the defense is not immediately appealable. Id. (internal quotation marks omitted). Importantly, the law requires that we assess the appeala- bility of a potentially qualifying collateral order in a categori- cal sense, and not on a case-by-case basis.11 Conducting that 11 Whether to recognize an order as collateral is not "an individualized jurisdictional inquiry," but rather is based "on the entire category to which a claim belongs." Mohawk, 130 S. Ct. at 605. Consequently, "we do not now in each individual case engage in ad hoc balancing to decide issues of appealability." Johnson v. Jones, 515 U.S. 304, 315 (1995). It follows AL SHIMARI v. CACI INTERNATIONAL 27 assessment here leads to the conclusion that the denial of a preemption claim stemming from the combatant activities exception would not necessarily entail significant scrutiny of sensitive military issues. Fundamentally, there is little intru- sion because the court’s inquiry focuses on whether the con- tractor complied with the government’s specifications and instructions, and not the wisdom or correctness thereof. The Boyle and Saleh decisions themselves well illustrate the lack of intrusion that would result from deferring review until after entry of a final judgment. Boyle, for example, involved an appeal from a jury verdict for the plaintiff, while "the two appeals in Saleh reached the D.C. Circuit using the normal machinery of §§ 1291 and 1292(b)." Martin, 618 F.3d at 488.12 Moreover, the district court in Saleh had conducted exten- sive discovery "regarding the military’s supervision of the that "the issue of appealability under § 1291 is to be determined . . . with- out regard to the chance that the litigation at hand might be speeded, or a particular justice averted, by a prompt appellate court decision." Digital Equip., 511 U.S. at 868. Although the presence of a "substantial public interest," or "some particular value of a high order," is a necessary prereq- uisite to a collateral order appeal, Will, 546 U.S. at 352-53, the identifica- tion of such a public interest is not the end of the inquiry. As the Supreme Court explained in Mohawk, "[t]he crucial question . . . is not whether an interest is important in the abstract; it is whether deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders." 130 S. Ct. at 606. 12 It is of no moment that the plaintiffs have alleged a conspiracy among the contractors, their employees, and certain military personnel. The con- spiracy allegation does not transform this civil action into a challenge to the government’s policy or interests, or into an attempt to hold its contrac- tors liable for acting in accord with governmental decisions. Just as in Saleh, where some of the plaintiffs alleged a similar conspiracy, "there is no allegation, and no evidence, that" the "low-level soldiers" alleged to be acting in conspiracy with contractor personnel "had any control, de jure or de facto, over the" contractor personnel. 580 F.3d at 20 (Garland, J., dissenting). As such, these proceedings — like Saleh — constitute direct challenges only to "the unlawful and unauthorized actions of private con- tractors," id., based on the pleadings and record to date. 28 AL SHIMARI v. CACI INTERNATIONAL contract employees as well as the degree to which such employees were integrated into the military chain of com- mand," 580 F.3d at 4, with no ill effects. The Fifth Circuit, while acknowledging that Boyle preemption is underpinned by "a respect for the interests of the Government in military matters," has nonetheless reasoned that those interests can be safeguarded without resort to interlocutory review. Martin, 618 F.3d at 488. For example, a district court "should take care to develop and resolve such defenses at an early stage while avoiding, to the extent possible, any interference with military prerogatives." Id. Additionally, a trial court should consider "limiting discovery initially to such defenses" and "certifying orders denying [the] defense[ ] where the law is unsettled but, after refinement on appeal, might warrant dis- missing plaintiffs’ claims." Id.13 When properly conducted, suits against private contractors pose minimal risk that military personnel will be improperly haled into court or their depositions taken, because "[w]here discovery would hamper the military’s mission, district courts can and must delay it." Saleh, 580 F.3d at 29 (Garland, J., dis- senting) (citing, inter alia, Watts v. SEC, 482 F.3d 501, 508-09 (D.C. Cir. 2007)). Other procedural and substantive rules, such as Rule 45 of the Federal Rules of Civil Procedure and the state secrets doctrine, also adequately safeguard military interests. See id. at 29 n.18 (Garland, J., dissenting). Accord- ingly, we decline to recognize denials of Saleh preemption as a new class of collateral order.14 Insofar as it would be 13 The government’s amicus submission agrees, observing that concerns over postponing review "can and should be addressed by careful limitation and close supervision of any necessary discovery by the district courts, and by the use of existing mechanisms for interlocutory appellate review, including certification under 28 U.S.C. § 1292(b)." Br. for the United States as Amicus Curiae at 4. 14 And, indeed, it remains to be seen whether we will adopt the substan- tive concept of "battlefield preemption" espoused by the Saleh majority. For the purposes of our decision today, however, we assume but do not decide that such a defense may be available to the appellants. AL SHIMARI v. CACI INTERNATIONAL 29 founded on the false premise that immediate appeals are nec- essary in preemption cases to protect the government’s legiti- mate military interests, such recognition would reflect an impermissibly indulgent view of appellate jurisdiction. C. Before jurisdiction can be invoked under the collateral order doctrine, a district court must issue a "fully consum- mated decision" that constitutes "a complete, formal, and . . . final" resolution of the issue. Abney v. United States, 431 U.S. 651, 659 (1977). In other words, the court’s ruling must be "the final word on the subject addressed." Digital Equip., 511 U.S. at 867. If a ruling lacks finality, the threshold require- ment for collateral order review — that the question in dispute be definitively resolved — is likewise left wanting. See Will v. Hallock, 546 U.S. 345, 349 (2006) (confining review of non-final orders to disputed questions conclusively deter- mined, which raise important non-merits issues that are effec- tively unreviewable if not immediately appealed). A question in dispute cannot be said to have been conclu- sively resolved if a district court "ma[kes] clear that its deci- sion [is] a tentative one, . . . and that it might well change its mind" after further proceedings. Jamison v. Wiley, 14 F.3d 222, 230 (4th Cir. 1994). Disputed questions that arise with respect to claims of immunity are not the exception to that ironclad rule. Fundamentally, a court is entitled to have before it a proper record, sufficiently developed through discovery proceedings, to accurately assess any claim, including one of immunity. And even a party whose assertion of immunity ulti- mately proves worthy must submit to the burdens of litigation until a court becomes sufficiently informed to rule. Manifestly, with respect to the appellants’ attempts to invoke Mangold immunity in their respective actions, suffi- cient information was lacking. The Maryland and Virginia district courts each perceived that the validity of such invoca- 30 AL SHIMARI v. CACI INTERNATIONAL tions depended in significant part on whether the contractor involved was acting within the scope of its agreement with the United States. One could hardly begin to answer that question without resort to any and all contracts between the appellants and the government pertinent to the claims, defenses, and related matters below. See, e.g., Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 741 n.11 (D. Md. 2010) (reasoning that con- tract could show, for example, that "‘federal wartime policy- making’ was not behind Defendants’ alleged actions," in which case plaintiffs’ "state law claims [would] not intrude upon the preempted field"). While other evidence and testi- mony could also be relevant to ascertain the appellants’ busi- ness relationship with the government in general, and the parties’ agreed duties and responsibilities in Iraq and at Abu Ghraib in particular, the analysis must necessarily begin with the written contract or contracts. Cf. Harris v. Kellogg Brown & Root Servs., Inc., 618 F.3d 398, 402 (3d Cir. 2010) (reject- ing appellate jurisdiction for failure of Will’s "conclusively determined" requirement, where only limited discovery had been conducted on combatant activities and political question defenses).15 In dissent, Judge Niemeyer contends that Behrens v. Pelle- tier, 516 U.S. 299 (1996), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), each a qualified immunity proceeding, provide for collateral order jurisdiction of the district courts’ orders deny- ing Mangold immunity, as illustrated by other of our qualified immunity cases. See post at 88-89, 90-91 (citing McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998); Jenkins v. Medford, 119 15 As the Virginia district court pointed out, the contracts "will shed much light on the responsibilities, limitations and expectations that [the appellants] were bound to honor as government contractors. In addition, consideration of [their] course of dealing with the government may reveal whether deviations from the contract occurred and, if so, whether they were tolerated or ratified." Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d 700, 717 (E.D. Va. 2009). Of course, the district court can receive this evidence under seal, or otherwise, if the circumstances so war- rant. AL SHIMARI v. CACI INTERNATIONAL 31 F.3d 1156 (4th Cir. 1997) (en banc); Winfield v. Bass, 106 F.3d 525 (4th Cir. 1997) (en banc)). According to Judge Nie- meyer, Behrens and Iqbal counsel that Rule 12 denials of immunity invariably constitute final decisions appealable under § 1291, and those authorities "clearly establish that these appeals fit comfortably with the Cohen collateral order doctrine." Post at 80-81. It is more accurate to say that orders denying dismissal motions, insofar as those motions are based on immunities that are not absolute but conditioned on context, such as qual- ified immunity in a § 1983 action or the derivative immunities at issue here, are, in accordance with Behrens and Iqbal, sometimes immediately appealable. Winfield makes the point: [W]e possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiff’s version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established law accepting the facts as the district court viewed them. 106 F.3d at 530. More generally, we would have jurisdiction over an appeal like the ones attempted here "if it challenge[d] the materiality of factual issues." Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 490 (5th Cir. 2001). By con- trast, we lack jurisdiction if such an appeal "challenges the district court’s genuineness ruling — that genuine issues exist concerning material facts." Id. Of course, "[w]e always have jurisdiction to determine whether the facts relevant to our jurisdiction exist." Wireko v. Reno, 211 F.3d 833, 835 (4th Cir. 2000) (citation omitted). In Iqbal, the Supreme Court framed the genuineness- materiality distinction as one between "fact-based" or "ab- stract" issues of law, with only the latter supplying a proper foundation for immediate appeal. 556 U.S. at 674 (quoting Johnson v. Jones, 515 U.S. 304, 317 (1995)). The Iqbal Court 32 AL SHIMARI v. CACI INTERNATIONAL concluded that whether a particular constitutional right was clearly established for qualified immunity purposes presents an abstract issue of law that permits an appeal at the dismissal stage. See id. at 674-75. Here, as in Iqbal, there is no "vast pretrial record" to encumber our decisionmaking, id. at 674, but the issues before us are more factually entrenched and far less amenable to meaningful analysis by resort merely to the plaintiffs’ pleadings. Thus, unlike Iqbal, these appeals encom- pass fact-based issues of law, with the need for additional development of the record being among those "matters more within a district court’s ken." Id. Hence, insofar as an interlocutory appeal of a denial of immunity requires resolution of a purely legal question (such as whether an alleged constitutional violation was of clearly established law), or an ostensibly fact-bound issue that may be resolved as a matter of law (such as whether facts that are undisputed or viewed in a particular light are material to the immunity calculus), we may consider and rule upon it. See Behrens, 516 U.S. at 313 (deeming appellate jurisdiction to have been properly asserted over denial of summary judgment in § 1983 action where adverse ruling was premised on defen- dant’s alleged conduct having violated clearly established law); McVey, 157 F.3d at 276 (approving jurisdiction over similar legal issue at dismissal stage, where appeal did not "raise factual questions concerning the defendants’ involve- ment, which would not be appealable").16 Behrens, then, confers jurisdiction of these appeals only if the record at the dismissal stage can be construed to present a pure issue of law. We might discern such an issue if we 16 See also Jenkins, 119 F.3d at 1159-60 (noting existence of appellate jurisdiction over denial of qualified immunity on motion to dismiss, based in part on defendant’s assertion that alleged violation did not implicate clearly established constitutional right); Winfield, 106 F.3d at 530 (recog- nizing jurisdiction over appeal of denial of qualified immunity insofar as district court ruled on summary judgment that asserted legal right was clearly established). AL SHIMARI v. CACI INTERNATIONAL 33 were of the opinion, as the dissenters evidently are, that per- sons similarly situated to the appellants are inevitably and invariably immune from suit premised on any and all conduct occurring (1) when they are in a war zone, by virtue of (2) a contract with the government. But not even Saleh, which receives a ringing endorsement in both dissents, went that far. The court in Saleh adopted the following rule: "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 engage- ment in such activities shall be preempted." 580 F. 3d at 9. The D.C. Circuit therefore conditions preemption on the pres- ence of a certain level of public/private integration, the con- duct of activities that may be classified as combat, and the military’s retained prerogative concerning the decisionmaking process. Though the Saleh court had the luxury of a complete record developed through discovery to assist it in pondering those issues, there has been no discovery in the cases at bar, and the pleadings provide nothing approaching definitive answers.17 17 Judge Wilkinson, on behalf of our dissenting friends, assumes as fact that the contractors were "integrated into wartime combatant activities under control of the U.S. military," post at 41, notwithstanding that there is no record evidence to support that assumption, or even what "integra- tion" means in the context of war. Judge Wilkinson appears to equate inte- gration with the plaintiffs’ assertion of a conspiracy. See post at 41-42 (citing conspiracy allegations of Amended Complaint in Al Shimari in support of notion "that the contractors here were acting in collaboration with U.S. military personnel"); see also supra note 12. But there is simply no reason to believe that the integration of separate entities into a more or less unified whole is necessarily the legal equivalent of a collaboration or conspiracy between those entities. It is also far from clear that, with respect to the torture and abuses alleged by the plaintiffs, the appellants were "acting under U.S. military authority," post at 47, as presumed by Judge Wilkinson. If one felt con- strained to form a conclusion on the authorization question based on the available record, then one would be better served to reference the pertinent 34 AL SHIMARI v. CACI INTERNATIONAL Indeed, the questions that will require proper answers in order to gauge the appellants’ entitlement to immunity have yet to be fully ascertained. In Mangold v. Analytic Services, Inc., supra note 3, the relevant issues on appeal from sum- mary judgment included whether government personnel were conducting an "official investigation," and whether the con- tractors’ statements giving rise to potential liability were responsive to the investigators’ queries, as opposed to being extraneous thereto. See Mangold v. Analytic Services, Inc., 77 F.3d at 1449-50. Subsequently, in Butters v. Vance Interna- tional, Inc., supra note 3, also a summary judgment appeal, we were constrained to decide whether withholding a job pro- motion from the plaintiff was a "commercial activity," and whether that employment decision was made by the defendant or the foreign government with which it had contracted. See Butters v. Vance International, Inc., 225 F.3d at 465-67. As with Mangold and Butters, this case too requires careful anal- ysis of intrinsically fact-bound issues, which may resemble any or all of the Saleh considerations, and will almost cer- tainly entail an exploration of the appellants’ duties under their contracts with the government and whether they exceeded the legitimate scope thereof. The appellants are requesting immunity in a context that has been heretofore unexplored. These are not disputes in which facts that might be material to the ultimate issue have been conclusively identified. Moreover, those facts that may have been tentatively designated as outcome-determinative are yet subject to genuine dispute, that is, a reasonable fact- finder could conclude in favor of either the plaintiffs or the allegations of the plaintiffs that, for example, "CACI knew that the United States government has denounced the use of torture and other cruel, inhu- man, or degrading treatment," Al Shimari Amended Complaint at ¶ 95; "L- 3 permitted [its] translators to ignore — repeatedly — the military’s instructions to abide by the Geneva Conventions," Al-Quraishi Second Amended Complaint at ¶ 430; and "L-3 affirmatively hid the misconduct of its employees from the United States military," id. at ¶ 433. AL SHIMARI v. CACI INTERNATIONAL 35 defendants. See Metric/Kvaerner Fayetteville v. Fed. Ins. Co., 403 F.3d 188, 197 (4th Cir. 2005). Because the courts’ immu- nity rulings below turn on genuineness, we lack jurisdiction to consider them on an interlocutory appeal. See Winfield, 106 F.3d at 530; Bazan, 246 F.3d at 490.18 Thus, although Mangold immunity confers upon those within its aegis the right not to stand trial, the appellants have yet to establish their entitlement to it. See Martin, 618 F.3d at 483 (concluding that claims of immunity must be "substan- tial," and not "merely colorable"). Because these appeals were taken before the district courts could reasonably render a deci- sion on the applicability of Mangold and, perhaps, Butters, there is no collateral order fulfilling the Will requirements for appealability pursuant to Cohen, and therefore no jurisdiction in this Court to review any related aspect of the proceedings below.19 18 The Supreme Court’s recent decision in Filarsky v. Delia, No. 10- 1018, 2012 WL 1288731 (U.S. Apr. 17, 2012), is not at all to the contrary. The issue in Filarsky, an appeal by a private lawyer from the denial of qualified immunity in a § 1983 case, was "whether an individual hired by the government to do its work is prohibited from seeking such immunity." Id. at *3. The Supreme Court concluded in the negative, and, consistent therewith, we have not curtailed the opportunity of the appellants herein to seek immunity from the plaintiffs’ claims; such immunity may yet be had. It is also worth noting that the appeal in Filarsky was taken only after the district court had ruled on summary judgment, see id. at *4, ascertain- ing that the issues in controversy were strictly legal, i.e., whether qualified immunity could be extended to private parties, and whether the alleged constitutional violation was one of clearly established law. 19 The same lack of jurisdiction obtains with respect to L-3’s attempted appeal of the Maryland district court’s denial of its motion to dismiss the ATS claims, insofar as that appeal is grounded in any of the derivative immunities we have discussed. See supra note 2 (observing winnowing of L-3’s ATS arguments from those presented to the district court). Similar unsettled questions pertaining to potentially relevant considerations such as agency, the scope of L-3’s duties under the contracts, and the degree of integration may bear on whether the asserted immunities are properly "derived" to defeat the plaintiffs’ claims. Further, we agree with the court 36 AL SHIMARI v. CACI INTERNATIONAL D. There being no independent basis for appellate jurisdiction premised on the law-of-war defense, Saleh preemption, or Mangold immunity, we are without pendent jurisdiction to further consider the appellants’ contentions that the plaintiffs’ claims present nonjusticiable political questions. Our rejection of each of the three proffered bases also precludes the exer- cise of jurisdiction regardless of whether the appellants’ polit- ical question defense is inextricably intertwined with any of them, or whether those bases are similarly interdependent with one another. IV. Pursuant to the foregoing, these consolidated appeals must be dismissed. APPEALS DISMISSED DUNCAN, Circuit Judge, concurring: I respect the majority’s well-reasoned opinion in this case and therefore fully concur in its conclusion that we lack juris- diction to hear this appeal. I write separately only to express below that although the Maryland plaintiffs have sued under the ATS, that litigation strategy should not be construed as a judicial admission that the actions of L-3 were those of the United States, thereby crystallizing access to a sovereign immunity defense and providing, through the denial of such immunity, an independent basis for appellate jurisdiction. See Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 751-53 (D. Md. 2010). Our conclusion in that regard is buttressed by Sosa v. Alvarez-Machain, 542 U.S. 692, 732 & n.20 (2004), in which the Supreme Court carefully left open the ques- tion of whether ATS liability may be imposed on private actors. Obvi- ously, if the plaintiffs’ ATS claims may be maintained against L-3 as a private actor but not as an agent of the government acting within the scope of its agency, L-3’s status is one more issue that may be appropriate for the district court to resolve following discovery. AL SHIMARI v. CACI INTERNATIONAL 37 my hope that the district courts in these consolidated appeals will give due consideration to the appellant’s immunity and preemption arguments—especially in light of the Supreme Court’s recent opinion in Filarsky v. Delia, 132 S. Ct. 1657 (2012), as discussed in Judge Niemeyer’s dissent—which are far from lacking in force. Judge Agee has authorized me to indicate that he joins in this concurrence. WYNN, Circuit Judge, concurring: I concur fully in the thoughtful and well-reasoned majority opinion in these cases. I write separately only to underscore the prudence of the majority’s restraint, which promotes both "efficient judicial administration" and "the prerogatives of district court judges, who play a special role in managing ongoing litigation." Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009). With respect to the latter consideration, I feel compelled to reiterate the majority’s holding that our limited appellate role leaves us without jurisdiction at this stage of the litigation to consider the underlying merits of these appeals. Likewise, as noted in the majority opinion, "facts that might be material to the ultimate issue have [not yet] been conclusively identified" in these cases, which are on appeal from motions to dismiss. Ante at 34. Accordingly, today’s opinion offers no guidance to the dis- trict court on the underlying merits of these matters. To do otherwise would, in my opinion, potentially usurp the role of the district court or risk overstepping our own. See United States v. Fruehauf, 365 U.S. 146, 157 (1961) ("Such [advi- sory] opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for 38 AL SHIMARI v. CACI INTERNATIONAL decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give."). Further, to the extent that my colleagues, in separate opinions, offer their views on the underlying merits of these cases, those opinions, "by their nature[,] express views that are not the law." Arar v. Ashcroft, 585 F.3d 559, 581 n.14 (2d Cir. 2009) (en banc). WILKINSON, Circuit Judge, dissenting: The majority in this case tries to present its view as some sort of innocuous jurisdictional disposition. But the jurisdic- tional ruling is wrong, and the decision is anything but innoc- uous. It inflicts significant damage on the separation of powers, allowing civil tort suits to invade theatres of armed conflict heretofore the province of those branches of govern- ment constitutionally charged with safeguarding the nation’s most vital interests. I fully join Judge Niemeyer’s fine dissent. My good col- league has ably addressed many of the failings of today’s decision, and I see no need to repeat those points here. I write separately only because the difficulties with these actions are so legion that no single dissent could hope to cover them all. The majority and I disagree on much, but there is no dis- agreement about the Abu Ghraib photographs that have appar- ently inspired this litigation. See ante at 10. Americans of good will were sickened by those photographs and the depraved conduct that would be reprehensible whenever, wherever, and against whomever it was applied. But acknowl- edging that fact answers only the question of whether this is a hard case. It does not answer the question whether it is bad law whose lasting consequences and abiding damage will long outlive the distressing photographs that have prompted the suits herein. AL SHIMARI v. CACI INTERNATIONAL 39 The actions here are styled as traditional ones and wrapped in the venerable clothing of the common law. Even on com- mon law terms, however, they are demonstrably incorrect, and the impact which tort doctrine will have on military oper- ations and international relations magnifies the difficulties immeasurably. I dare say none of us have seen any litigation quite like this and we default if we accept uncritically or entertain indefinitely this novel a violation of the most basic and customary precepts of both common and constitutional law. Sadly, the majority’s opinion does precisely this. After reading its decision, one could be forgiven for thinking that the issue before us is a simple jurisdictional question arising out of ordinary tort suits. But these are not routine appeals that can be quickly dismissed through some rote application of the collateral order doctrine. This case instead requires us to decide whether the contractors who assist our military on the battlefield will be held accountable through tort or con- tract, and that seemingly sleepy question of common law rem- edies goes to the heart of our constitutional separation of powers. Tort suits place the oversight of military operations in an unelected judiciary, contract law in a politically account- able executive. And in the absence of some contrary expres- sion on the part of the Article I legislative branch, the basic principles of Article II require that contractual, not tort, reme- dies apply. The majority emphatically decides this weighty question by pretending not to decide, as its dismissal of these appeals gives individual district courts the green light to subject mili- tary operations to the most serious drawbacks of tort litiga- tion. But arrogating power to the Third Branch in a contest over military authority is the wrong call under our Constitu- tion, and there is no garb for this decision so benign as to obscure the import of what the majority has done. We tread this territory at our peril. This decision is contrary to decades of Supreme Court admonitions warning federal 40 AL SHIMARI v. CACI INTERNATIONAL courts off interference with international relations. Of course military contractors should be held accountable, and it is important that a framework be set in place to accomplish this task. But instead of establishing that framework, the majority succumbs to mere drift and in so doing places courts in the most damaging and least defensible legal landscape possible. None of us have any idea where exactly all this is headed or whether the damage inflicted on military operations will be only marginal or truly severe. At a minimum, however, today’s decision breaches a line that was respected by our pre- decessors on courts high and low. I would not cross this boundary even if the collateral order doctrine could cloak my steps. With all respect for my fine colleagues, I would remand these actions to the district court with direction that they be dismissed. Part I of my dissenting opinion discusses the utter unsuita- bility of tort actions such as these in the context of an interna- tional theatre of war. Part II addresses why contract law is compatible with the separation of powers and the responsibili- ties allocated the executive branch under Article II of our Constitution. Part III explains why the majority’s application of the collateral order doctrine goes beyond being incorrect to inflicting damage on American interests overseas. I. Tort regimes involve well-known tradeoffs. They may pro- mote the public interest by compensating innocent victims, deterring wrongful conduct, and encouraging safety and accountability. However, tort law may also lead to excessive risk-averseness on the part of potential defendants. And cau- tion that may be well-advised in a civilian context may not translate neatly to a military setting, where the calculus is dif- ferent, and stakes run high. Risks considered unacceptable in civilian life are sometimes necessary on a battlefield. In order to secure high-value intelligence or maintain security, the mil- itary and its agents must often act quickly and on the basis of AL SHIMARI v. CACI INTERNATIONAL 41 imperfect knowledge. Requiring consideration of the costs and consequences of protracted tort litigation introduces a wholly novel element into military decisionmaking, one that has never before in our country’s history been deployed so pervasively in a theatre of armed combat. The majority acquiesces in judicial control over these sensi- tive military judgments. It opens the door for the plaintiffs to conduct broad discovery based on boilerplate complaints alleging a laundry list of state law claims, including "assault and battery," "sexual assault and battery," "intentional inflic- tion of emotional distress," and "negligent hiring and supervi- sion." By allowing such claims to go forward against contractors integrated into wartime combatant activities under control of the U.S. military, the majority raises thorny ques- tions of whose law should apply, compromises the military’s ability to utilize contractors in the future, and nudges foreign policy and war powers away from the political branches of the federal government and into the hands of federal courts. Sim- ply put, these state tort claims have no passport that allows their travel in foreign battlefields, and we have no authority to issue one. The complaint makes clear, and the contractors do not dis- pute, that the contractors here were acting in collaboration with U.S. military personnel. See, e.g., Al Shimari Amended Complaint ¶¶ 1, 70, 71, 118, 124, 135. The majority nonethe- less draws the odd distinction that contractors and the military may be in a "conspiracy" without somehow being "inte- grated." See ante at 33 n.17. In addition to the forementioned paragraphs, the complaint in fact provides ample allegations of integration. For example, the Al-Quraishi plaintiffs claim that "L-3 employed all the civilian translators used by the mil- itary in Iraq," Al-Quraishi Amended Complaint ¶ 78, and that "Defendants’ acts took place during a period of armed con- flict, in connection with hostilities" in which the U.S. military was engaged, id. ¶ 280. Indeed, they allege integration so complete that civilian interrogators were giving orders to mili- 42 AL SHIMARI v. CACI INTERNATIONAL tary personnel. Id. ¶ 221. For its contrary view, the majority departs from the well-established rule that we take the asser- tions of the complaint on a motion to dismiss as true. While the whole gravamen of the complaint is military-contractor cooperation and collaboration, the majority would have us believe they were more akin to strangers in the night. The majority also suggests that the contractors may have departed from military instructions. See ante at 33-34 n.17. If the contractors did depart from the military’s instructions, that would allow the government to pursue a breach of contract claim. See infra Part II. Ironically, the complaint itself speaks specifically in terms of a failure to "abide[ ] by the contract terms," Al-Quraishi Amended Complaint ¶ 247, even though the plaintiffs were in no sense a party to the same. But any breach of contract does not begin to confer a cause of action in tort on the part of detainees in a theatre of armed conflict. There is no indication that Congress or any other law-making authority, federal or state, wanted foreign nationals in deten- tion to litigate in tort the relationship between military con- tractors and the U.S. military when the government itself as a party to the contract has posited no need to do so. A. From this point, the problems with this litigation only mul- tiply. First, due largely to their inventive nature, these suits present the difficult question of whose law should govern them. The majority clears the way for one federal court, sit- ting in Maryland, to apply Iraqi tort law to the alleged conduct —in an Iraqi war zone—of a Virginia-headquartered contrac- tor integrated into wartime combatant activities of the U.S. military, and for another federal court, sitting in Virginia, to apply Virginia tort law to a similarly situated contractor for alleged conduct also occurring in an Iraqi war zone. This is, to put it mildly, no way to run a railroad. AL SHIMARI v. CACI INTERNATIONAL 43 1. The court below in Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702 (D. Md. 2010)—applying the principle of lex loci delicti —decided that "Iraqi law applies to all of Plaintiffs’ state law claims." Id. at 763.* This conclusion is highly troublesome. Most fundamentally, the application of Iraqi law against agents of the U.S. military constitutes a complete surrender of sovereignty. The majority allows Iraqi citizens who were imprisoned in an active theatre of war to bring tort suits against the occupying authority based on Iraqi causes of action. Such suits are not only novel, to say the least, but also in conflict with Supreme Court precedent. See, e.g., Dow v. Johnson, 100 U.S. 158, 165, 170 (1879) (explaining that occupying forces are not subject to the laws of the occupied territory); Coleman v. Tennessee, 97 U.S. 509, 515, 517 (1878) (same). The majority does not point to a single case in which for- eign citizens were allowed to sue the occupying authority in its own courts under foreign causes of action. Likewise, it offers no support for its assertion that Dow and Coleman do not apply to military contractors, citing only Ford v. Surget, 97 U.S. 594 (1878), a case implying that law-of-war immu- nity is not limited to uniformed soldiers. See Ford, 97 U.S. at *The Al-Quraishi district court also declined to dismiss plaintiffs’ Alien Tort Statute claims because, in its judgment, "Plaintiffs’ claims constitute recognized violations of the law of nations, appropriately assertable against Defendants." 728 F. Supp. 2d at 715. Such claims could be pre- cluded by Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), in which the Supreme Court is expected to decide whether "the Alien Tort Statute . . . provide[s] subject matter jurisdiction over claims against corpora- tions," Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir. 2010), cert. granted, 132 S. Ct. 472 (Oct. 17, 2011) (Mem), and "[w]hether and under what circumstances the Alien Tort Statute . . . allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States," ___ S. Ct. ___, 2012 WL 687061 (Mar. 5, 2012) (Mem). 44 AL SHIMARI v. CACI INTERNATIONAL 606-08 (holding a civilian immune from civil suit for burning cotton in support of the Confederate military). Moreover, the majority is simply wrong in suggesting that the Dow and Coleman Courts were concerned only with pro- tecting the occupying authority from foreign tribunals, in con- trast to foreign laws. See, e.g., Dow, 100 U.S. at 165 ("When, therefore, our armies marched into . . . the enemy’s country, their officers and soldiers were not subject to its laws, nor amenable to its tribunals for their acts. They were subject only to their own government, and only by its laws, administered by its authority, could they be called to account." (emphases added)); id. at 170 ("The question here is, What is the law which governs an army invading an enemy’s country? It is not the civil law of the invaded country . . . ." (emphasis added)); Coleman, 97 U.S. at 515 ("Officers and soldiers of the armies of the Union were not subject during the war to the laws of the enemy, or amenable to his tribunals for offences commit- ted by them. They were answerable only to their own govern- ment, and only by its laws, as enforced by its armies, could they be punished." (emphases added)); id. at 517 (Following military occupation, "the municipal laws of [the occupied ter- ritory] . . . remain in full force so far as the inhabitants of the country are concerned . . . . This doctrine does not affect, in any respect, the exclusive character of the jurisdiction of the military tribunals over the officers and soldiers of the army of the United States . . . ; for, as already said, they were not sub- ject to the laws nor amenable to the tribunals of the hostile country." (emphases added)). The application of Iraqi tort law to U.S. military contractors creates practical problems as well. American courts are ill- suited to decide unsettled questions of Iraqi law. The district court in Al-Quraishi, for instance, considered "Whether Aid- ing and Abetting and Conspiracy are Recognized Torts Under Iraqi Law and Whether Iraqi Law Allows Punitive Damages." 728 F. Supp. 2d at 764. The defendants argued that aiding and abetting and conspiracy are not cognizable causes of action AL SHIMARI v. CACI INTERNATIONAL 45 under Iraqi tort law, and that punitive damages are not allowed as a remedy. Id. The plaintiffs disagreed, and the par- ties "submitted affidavits from Iraqi law experts in support of their respective positions." Id. Not surprisingly, considering the difficulty of ascertaining foreign law, the district court decided to "defer decision with respect to the content of Iraqi law." Id. Given that the district court had trouble deciding such rudi- mentary questions as whether aiding and abetting and conspir- acy are even causes of action under Iraqi law, and whether Iraqi law allows punitive damages, how can we expect the court to decide the far more challenging issues necessary to a full-scale trial? For instance, how will it decipher the stan- dard of care for each cause of action, and determine whether there was a breach? It can rely on expert testimony, of course, but Iraqi law experts appear to disagree as to whether these causes of action are even cognizable. See id. Accordingly, the majority allows a federal court to go forward with litigation in which Iraqi citizens sue a U.S. contractor working hand-in- hand with the U.S. military in a war zone under Iraqi causes of action that may not even exist. Under the majority’s decision, military contractors face the prospect of drawn out lawsuits under the substantive tort law of every country in which they operate. Such a regime is unworkable in an era where the military has no choice but to contract with private corporations. In the present cases, for example, "a severe shortage" of military intelligence person- nel "prompt[ed] the U.S. government to contract with private corporations to provide civilian interrogators and interpret- ers." J.A. 408. This use of private contractors was deemed essential to the achievement of U.S. military objectives. Yet, under the reasoning of the Al-Quraishi district court, which the majority allows to stand, the contractors should have paused to consider their potential liability under the substan- tive tort law of Iraq before agreeing to supply the military needed personnel under the government contract. 46 AL SHIMARI v. CACI INTERNATIONAL Of course, corporations generally must weigh their poten- tial liabilities before agreeing to specific projects. The possi- bility of defending a lawsuit every time a foreign citizen claims a violation of foreign tort law might substantially alter the profitability of government contracts. Thus, before agree- ing to perform the most critical intelligence functions in sup- port of the U.S. military, contractors would be forced to investigate and analyze the substantive tort law of every coun- try in which its employees might work. This unenviable task would be even more burdensome when the substantive tort law varies from jurisdiction to jurisdiction within a country, as it does in the United States. In other words, a court that understandably had difficulty deciding such elementary questions as "Whether Aiding and Abetting and Conspiracy are Recognized Torts Under Iraqi Law and Whether Iraqi Law Allows Punitive Damages," Al- Quraishi, 728 F. Supp. 2d at 764, is implying that contractors, before playing a critical role in the U.S. military effort in Iraq, should have analyzed the nuances and permutations of every Iraqi tort law that might conceivably affect them. By forcing contractors to undertake a highly complex and deeply uncer- tain legal analysis before aiding our military operations, par- ticularly those executed quickly and in countries whose legal systems are unstable and unfamiliar, the majority jeopardizes the military’s ability to employ contractors in the future. Like the courts, military contractors must rely on legal experts to analyze foreign law. One suspects that most Iraqi legal experts practice law in Iraq, and indeed, the Al-Quraishi plaintiffs relied on the declaration of an Iraqi attorney employed at an Iraqi law firm. Should the defendants have sought counsel from these Iraqi attorneys before helping the U.S. military with detention and interrogation functions? Should other contractors, before agreeing to aid in the U.S. military invasion of Iraq, have reached out to Iraqi lawyers for advice on the legal ramifications of such an attack under Iraqi tort law? Until now, these questions seemed far-fetched, but AL SHIMARI v. CACI INTERNATIONAL 47 they are newly valid considerations under a regime that sub- jects lawsuit-averse American corporations to the substantive tort law of Iraq. My point is not at all to disrespect Iraqi law or lawyers, but to query the feasibility of extensive and uncer- tain legal inquiries into any foreign law on the eve or in the execution of military operations. 2. Unlike the district court in Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702 (D. Md. 2010), the district court in Al Shimari v. CACI Premier Technology, Inc., 657 F. Supp. 2d 700 (E.D. Va. 2009) deferred any ruling on the choice of law issues. See id. at 725 n.7. As Judge King noted in his dissent from the now-vacated panel opinion, the Al Shimari plaintiffs argue that CACI is "liable to them under Virginia law for the torts of assault and battery, sexual assault, intentional and negligent infliction of emotional distress, and negligent hiring and supervision." Al Shimari v. CACI Int’l, Inc., 658 F.3d 413, 427 (4th Cir. 2011) (King, J., dissenting) (emphasis added). The plaintiffs, after all, are pressing Virginia causes of action, and thus if the suit is allowed to go forward, the question of whether Virginia tort law applies extraterritorially must be seriously asked. The answer to this question is clear: the application of Virginia tort law to overseas battlefield conduct by contractors acting under U.S. military authority is as prob- lematic as the application of Iraqi law. First, there is no indication whatsoever that the Common- wealth of Virginia has any interest in having its tort law applied abroad in these types of cases. Absent a contrary leg- islative intent, we assume that legislatures do not want their tort law to apply extraterritorially. For instance, in EEOC v. Arabian American Oil Co. ("Aramco"), 499 U.S. 244 (1991), the Supreme Court held that Title VII of the Civil Rights Act of 1964 does not apply extraterritorially to regulate the employment practices of U.S. employers who employ U.S. citizens abroad. Id. at 246-47. In reaching this conclusion, the 48 AL SHIMARI v. CACI INTERNATIONAL Court relied on the "longstanding principle" that "‘legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’" Id. at 248 (citation omitted). Given that "Congress legislates against the backdrop of the presumption against extraterritoriality," the Court stated, "unless there is ‘the affir- mative intention of the Congress clearly expressed,’ we must presume it ‘is primarily concerned with domestic condi- tions.’" Id. (citations omitted). Ultimately, the Court con- cluded that the petitioners had failed to provide sufficient evidence that Congress intended Title VII to apply abroad. Id. at 259. Citing Aramco, the Supreme Court recently reiterated these principles in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), where it held that § 10(b) of the Securities Exchange Act of 1934 does not apply extraterritorially. Id. at 2877-78, 2883. The Court reasoned that "[t]he results of judicial-speculation-made-law—divining what Congress would have wanted if it had thought of the situation before the court—demonstrate the wisdom of the presumption against extraterritoriality." Id. at 2881. "Rather than guess anew in each case," the Court continued, "we apply the presumption in all cases, preserving a stable background against which Congress can legislate with predictable effects." Id. Similarly, in Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court concluded that judges must apply a "plain statement rule" before upsetting the standard constitutional balance of federal and state powers. Id. at 460-61. "[I]f Congress intends to alter the usual constitutional balance," the Court explained, "it must make its intention to do so unmistakably clear in the language of the statute." Id. at 460 (internal quotation marks omitted). "In traditionally sensitive areas," the Court contin- ued, "the requirement of clear statement assures that the legis- lature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision." Id. at 461 (internal quotation marks omitted). AL SHIMARI v. CACI INTERNATIONAL 49 Aramco, Morrison, and Gregory all involved the "long- standing principle" that "‘legislation of Congress, unless a contrary intent appears, is meant to apply only within the ter- ritorial jurisdiction of the United States.’" Aramco, 499 U.S. at 248 (emphasis added) (citation omitted). However, given that the Constitution entrusts foreign affairs to the federal political branches, see U.S. Const. art. I, § 8, cls. 1, 11-15; art. II, § 2, cls. 1-2, limits state power over foreign affairs, see id. art. I, § 10, and establishes the supremacy of federal enact- ments over state law, see id. art. VI, cl. 2, the presumption against extraterritorial application is even stronger in the con- text of state tort law. It defies belief that, notwithstanding the constitutional entrustment of foreign affairs to the national government, Vir- ginia silently and impliedly wished to extend the application of its tort law to events overseas. Or further, that it would do so in active disregard of Supreme Court pronouncements. For the Court has repeatedly stated that the federal government has exclusive power over foreign affairs, and that states have very little authority in this area. In Chae Chan Ping v. United States, 130 U.S. 581 (1889), for instance, the Court noted, "‘[T]he United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace and negotiations and intercourse with other nations; all of which are forbidden to the state governments.’" Id. at 605 (citation omitted). The Court reiterated these principles in United States v. Belmont, 301 U.S. 324 (1937), emphasizing that "[g]overnmental power over external affairs is not distributed, but is vested exclusively in the national government." Id. at 330. The Belmont Court further noted that "complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states." Id. at 331. Likewise, in Hines v. Davidowitz, 312 U.S. 52 (1941), the Court stressed that "[o]ur system of government is such that . . . the interest 50 AL SHIMARI v. CACI INTERNATIONAL of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference." Id. at 63. Such interference is precisely what we invite by ascribing to the fifty states the unexpressed wish that their tort law gov- ern the conduct of military operations abroad. The principle against such interference holds even where the executive branch insists that the state law does not interfere with the for- eign relations power. For instance, in Zschernig v. Miller, 389 U.S. 429 (1968), the Supreme Court struck down an Oregon probate law as "an intrusion by the State into the field of for- eign affairs which the Constitution entrusts to the President and the Congress." Id. at 432. Although "[t]he several States . . . have traditionally regulated the descent and distribution of estates," the Court concluded, "those regulations must give way if they impair the effective exercise of the Nation’s for- eign policy." Id. at 440. In its brief amicus curiae, the Depart- ment of Justice stated, "The government does not . . . contend that the application of the Oregon escheat statute in the cir- cumstances of this case unduly interferes with the United States’ conduct of foreign relations." Id. at 434. The Court disregarded this statement, reasoning that the state action might cause "disruption or embarrassment" that the Justice Department failed to appreciate. Id. at 434-35, 441. In concur- rence, Justice Stewart was even less deferential toward state- ments from the executive branch: We deal here with the basic allocation of power between the States and the Nation. Resolution of so fundamental a constitutional issue cannot vary from day to day with the shifting winds at the State Department. Today, we are told, Oregon’s statute does not conflict with the national interest. Tomor- row it may. Id. at 443 (Stewart, J., concurring). AL SHIMARI v. CACI INTERNATIONAL 51 3. So too here, we are hardly required to defer to the Justice Department’s statements that these cases should go forward. The Department urges us to hold that state tort law claims against contractors are generally preempted if similar claims brought against the United States would come within the FTCA’s combatant activities exception and if the alleged actions of the contractor and its personnel occurred within the scope of their contractual rela- tionship with the government, particularly if the con- duct occurred while contractor personnel were integrated with the military in its combat-related activities. Br. of United States at 2-3. So far, so good. And one would think that this would be the end of it. However, the Department carves out an exception where "a contractor has committed torture as defined in 18 U.S.C. § 2340," the federal anti-torture statute. Id. at 3. The government then elaborates further on its proposed exception by implying that state-law tort remedies need not be available going forward "in light of measures subsequently instituted by Congress and the Executive Branch, and other developments in the aftermath of Abu Ghraib." Id. at 23. Like the Justice Department’s brief in Zschernig, this vaguely explained and inexplicably derived exception is not entitled to deference by this court. As the Supreme Court only recently reiterated, "[T]he separation of powers does not depend on . . . whether ‘the encroached-upon branch approves the encroachment.’" Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3155 (2010) (quoting New York v. United States, 505 U.S. 144, 182 (1992)). The government does not point to a single expression of congressional intent in support of permitting state law tort 52 AL SHIMARI v. CACI INTERNATIONAL claims to apply overseas based solely on the nature of the allegations. Instead, it asserts that "in the limited circum- stances where the state law claim is based on allegations that the contractor committed torture, as defined in 18 U.S.C. § 2340, courts should take into account the strong federal interests embodied in that federal law." Br. of United States at 22. In these circumstances, the government suggests, "the totality of the federal interests is different and does not require that state-law tort suits against contractors be preempted." Id. at 3. It is difficult to see how 18 U.S.C. § 2340—which exhibits an interest in punishing torture through federal criminal prosecution—demonstrates any congressional interest in per- mitting torture-based state tort claims. The federal anti-torture statute, 18 U.S.C. § 2340 et seq., does not even contain a pri- vate right of action. And in any event, courts have no license to create exceptions based on helter-skelter application of fed- eral criminal statutes, exceptions that permit otherwise pre- empted state tort claims to go forward. It is elemental that a federal court cannot simply engraft on its own a federal criminal law standard onto state tort claims. The federal judiciary is not permitted to reconfigure the ele- ments of a state law cause of action. For as the "[Supreme] Court recognized in [Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988),] the responsibility for defining the elements and scope of a state cause of action rests with the state legislature and state courts." Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1265 (4th Cir. 1989). This court requested the government’s submission of an amicus brief here, and I am appreciative of that submission. However, the government’s amicus position is at odds with its own conduct. If the government believes that there have been contractual or criminal violations on the part of its own con- tractors, then it should proceed to exercise its unquestioned contractual and prosecutorial authority to go after the culpable AL SHIMARI v. CACI INTERNATIONAL 53 party. See infra Part II.B. If it does not believe such violations have occurred, it should say so. But given the significance of this case, the exclusive competence of the federal government in the field of foreign affairs, and the principles articulated in Aramco, Morrison, and Gregory, neither the federal executive nor the federal judiciary is entitled to assume that states want their tort law applied extraterritorially absent a plain statement to the contrary. Here there is no indication that the Commonwealth of Vir- ginia intended to apply its laws of assault, battery, sexual assault, intentional and negligent infliction of emotional dis- tress, and negligent hiring and supervision to the battlefield conduct of contractors integrated into the wartime activities abroad of the U.S. military. A state’s interest in employing a tort regime is largely confined to tortious activity within its own borders or against its own citizens. It is anything but clear that Virginia has any interest whatsoever in providing causes of action that allow foreign citizens that have never set foot in the Commonwealth to drag its own corporations into costly, protracted lawsuits under who-knows-what legal authority. Notwithstanding the presumption against extraterritorial application of state law and the absence of any indication that the Commonwealth wants its tort law applied to battlefield conduct, the Al Shimari plaintiffs ask the district court to apply Virginia tort law to war-zone conduct that took place over 6,000 miles away. It is difficult to find a limiting princi- ple in the plaintiffs’ analysis. Under their approach, Virginia tort law—and the tort regimes of all fifty states—can be applied to conduct occurring in every corner of the earth. By allowing plaintiffs’ causes of action to go forward, the major- ity lends its imprimatur to the extraterritorial application of state tort law. Reading the majority’s opinion, I wonder if my friends will next launch state tort law into outer space. 54 AL SHIMARI v. CACI INTERNATIONAL 4. Even if the Commonwealth had somehow intended the extraterritorial application of its tort law, which it has not, the Supreme Court has made clear that state laws aimed at influ- encing foreign relations cannot stand when they conflict with federal objectives. In Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), for example, the Court invali- dated a Massachusetts law that restricted state agencies from purchasing goods or services from companies doing business with Burma. Id. at 366. The Court reasoned that the state law was "an obstacle to the accomplishment of Congress’s full objectives" under a federal law that directed the President to develop a comprehensive, multilateral strategy toward Burma. Id. at 369, 373. By "imposing a different, state system of eco- nomic pressure against the Burmese political regime," the Court explained, "the state statute penalizes some private action that the federal Act (as administered by the President) may allow, and pulls levers of influence that the federal Act does not reach." Id. at 376. Consequently, the Court explained, the Massachusetts law could not stand because it "compromise[d] the very capacity of the President to speak for the Nation with one voice in dealing with other govern- ments." Id. at 381. Similarly, in American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003), the Court struck down California’s Holo- caust Victim Insurance Relief Act, which required any insurer doing business in the state to disclose information about Holocaust-era insurance policies. Id. at 401. The Court began by noting, There is . . . no question that at some point an exer- cise of state power that touches on foreign relations must yield to the National Government’s policy, given the ‘concern for uniformity in this country’s dealings with foreign nations’ that animated the AL SHIMARI v. CACI INTERNATIONAL 55 Constitution’s allocation of the foreign relations power to the National Government in the first place. Id. at 413 (citation omitted). In the context of Holocaust-era insurance claims, explained the Court, "California seeks to use an iron fist where the President has consistently chosen kid gloves." Id. at 427. Accordingly, the Court held that the state statute was preempted because it "interferes with the National Government’s conduct of foreign relations." Id. at 401. Under Crosby and Garamendi, states are prohibited from obstructing the foreign policy objectives of the federal gov- ernment. There can be no question that there is obstruction here, where the federal law, speaking with one voice, can potentially be supplanted by the fifty different voices of vary- ing state tort regimes, each one potentially working at cross- purposes with federal aims. Thus, even if Virginia wanted to extend its tort law to overseas battlefield conduct of military contractors, it cannot create an "obstacle to the accomplish- ment of Congress’s full objectives" under federal law. Crosby, 530 U.S. at 373. Because Congress has emphatically forbid tort law from governing battlefield conduct, any attempt to "impos[e] a different, state system" on the battle- field, id. at 376, would impermissibly "interfere[ ] with the National Government’s conduct of foreign relations," Gara- mendi, 539 U.S. at 401. B. In contrast to the Commonwealth of Virginia, Congress has a constitutionally protected role in foreign affairs. See U.S. Const. art. I, § 8, cls. 1, 11-15. Congress undoubtedly has the power to allow private parties to pursue tort remedies against war-zone contractors operating under military authority. "[T]he Constitution contemplated that the Legislative Branch have plenary control over . . . regulations, procedures and remedies related to military discipline . . . ." Chappell v. Wal- 56 AL SHIMARI v. CACI INTERNATIONAL lace, 462 U.S. 296, 301 (1983). Congress could thus do what the majority has asserted its own right to do, namely to autho- rize foreign nationals as private attorneys general to police contractor conduct in theatres of armed combat. However, contrary to the plaintiffs’ assertions, there is no indication that Congress has pursued any such course. Plaintiffs contend that the Federal Tort Claims Act ("FTCA") permits private parties to bring state law tort suits against military contractors for wartime conduct. In analyzing this claim, we must adhere to the longstanding presumption that Congress does not permit private parties to interfere with military operations absent explicit statutory authorization. "[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs," Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988), and this hesitance to transgress constitutional boundaries applies fully to our interpretation of statutes. See Feres v. United States, 340 U.S. 135, 146 (1950) (declining to read the FTCA’s broad waiver of sovereign immunity to allow mili- tary personnel to sue the government for service-related inju- ries even though no provision explicitly prevents them from doing so); see also United States v. Johnson, 481 U.S. 681, 690 (1987) (reaffirming the holding in Feres because "suits brought by service members against the Government for inju- ries incurred incident to service . . . are the ‘type[s] of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.’" (emphasis in original) (citation omitted)). To adopt plaintiffs’ reading of the FTCA would require us to abandon this tradition of restraint. This broadly phrased statute does not contain anything close to a congressional authorization to private parties to hale war-zone military con- tractors into civilian courts. At most, it provides that "the term ‘Federal agency’ . . . does not include any contractor with the United States." 28 U.S.C. § 2671. But that broad definitional AL SHIMARI v. CACI INTERNATIONAL 57 provision does not mean that "contractors . . . are expressly excluded from the FTCA’s reach" in the area of battlefield torts. Al Shimari, 658 F.3d at 435 (King, J., dissenting). For a "general statutory rule usually does not govern unless there is no more specific rule," Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524 (1989), but here there is another provision of the FTCA that speaks more specifically to whether military contractors are immune from these tort actions. That provision is the combatant activities exception, which preserves the government’s sovereign immunity against "[a]ny claim arising out of the combatant activities of the mil- itary or naval forces, or the Coast Guard, during time of war." 28 U.S.C. § 2680(j). Multiple textual clues in this exception indicate that Congress wanted to keep tort law out of the bat- tlefield regardless of a defendant’s status as a soldier or a con- tractor. To start with, the exception bars claims "arising out of" combatant activities, id., and this phrase is among the broad- est in the law. "[I]n workmen’s compensation statutes," for instance, "[t]he arising-out-of test is a familiar one used . . . to denote any causal connection between the term of employ- ment and the injury." Saleh v. Titan Corp., 580 F.3d 1, 6 (D.C. Cir. 2009) (emphasis in original) (footnote omitted). Indeed, the use of this phrase in other FTCA exceptions has precluded a wide range of actions. For instance, the "sweep- ing language" of 28 U.S.C. § 2680(h)—which preserves the government’s sovereign immunity against claims "arising out of assault [or] battery"—bars not only battery actions, but negligence claims that "stem from a battery" as well. United States v. Shearer, 473 U.S. 52, 55 (1985) (plurality opinion); see also Kosak v. United States, 465 U.S. 848, 854 (1984) (equating "arising in respect of" in 28 U.S.C. § 2680(c) with "arising out of" and observing that the former "encompassing phrase . . . seems to sweep within the exception all injuries associated in any way with the ‘detention’ of goods"). Con- gress wanted to forbid tort suits stemming from combatant 58 AL SHIMARI v. CACI INTERNATIONAL activities, and it chose in "[a]ny claim arising out of" a broad and widely recognized prohibitory term. The exception’s use of the term "combatant activities" does not denote a narrow subset of military operations but a legis- lative intention to prevent tort from entering the battlefield. This term encompasses "not only physical violence, but activ- ities both necessary to and in direct connection with actual hostilities," Johnson v. United States, 170 F.2d 767, 770 (9th Cir. 1948), and therefore has a considerable sweep. As the Supreme Court has noted, this provision "paint[s] with a far broader brush" than other FTCA exceptions that bar suits aris- ing out of a subset of harms associated with a particular area. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 489-90 (2006) (contrasting the combatant activities exception in § 2680(j) with § 2680(b), which preserves immunity for "just three types of harm" associated with mail delivery). Given the broad language of the combatant activities exception, it is dif- ficult to believe that Congress wanted the sensibilities of tort to govern the realities of war. Indeed, as the District of Columbia Circuit recognized, "the policy embodied by the combatant activities exception is sim- ply the elimination of tort from the battlefield." Saleh, 580 F.3d at 7. Congress insulated the theatre of war from tort law because it "recognize[d] 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. United States, 976 F.2d 1328, 1337 (9th Cir. 1992). In order to shield "[a]ny claim arising out of the combatant activities of the military" from tort liability, Congress used some of the broadest language possible when drafting this exception. It is not our role to dismember this exclusion’s text in order to determine when and to what extent torts can arise from com- batant activities after all. If this textual evidence were not enough, the Supreme Court has refused to read the FTCA to authorize tort suits AL SHIMARI v. CACI INTERNATIONAL 59 against defense contractors, albei [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/799799. Public record. Not legal advice.