Amicus Curiae Brief — Saleh v. Titan Corp.

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Supreme Courl, U.S.

FILED

No. 09-1313 WAY 23 2010 |

: OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

HAIDAR MUHSIN SALEH, ILHAM NASSIR IBRAHIM, et al.,

Petitioners,

CACI INTERNATIONAL and TITAN CORPORATION,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE HUMAN RIGHTS FIRST,

HUMAN RIGHTS WATCH, PHYSICIANS FOR HUMAN

RIGHTS, CENTER FOR VICTIMS OF TORTURE, AND

LAW PROFESSORS ILIAS BANTEKAS, JOHN CERONE,

SCOTT HORTON, AND MARCO SASSOLI IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

Of Counsel: ROBERT P. LOBUE

Counsel of Record

PATTERSON BELKNAP WEBB

& TYLER LLP

1133 Avenue of the Americas

New York, New York 10036

212) 336-2000

rplobue@pbwt.com

MELINA C. MILAZZO

HUMAN RIGHTS FIRST

333 Seventh Avenue, 13th Floor

New York, New York 10001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAI

SUMMARY OF ARGUMENT

ARGUMENT

THE GOVERNMENT CONTRACTOR

DEFENSE SHOULD NOT BE

KX'TENDED IN THE NAME OF A

FEDERAL INTEREST WHERE SO

DOING UNDERMINES THE U.S

COMMITMENT TO INTERNA

TIONAL HUMAN RIGHTS

A. The United States Has Embraced

a Policy of Ensuring That a Civil

Remedy Exists for Victims of

Gross Human Rights

Violations

B. The United States Has a

Uniquely Federal Interest In

Kffectuating the Human Rights

Law Principles It Has Adopted

and Can Do So By Making a Civil

Tort Remedy Available To

Alleged Victims

PAGE

ll. THE GOVERNMENT CONTRACTOR

DEFENSE, AS EXTENDED BY THE

COURT OF APPEALS, CREATES A

CONFLICT WITH U.S. OBLIGA-

TIONS UNDER INTERNATIONAL

ILUMANITARIAN LAW ............

A. The D.C. Circuit’s Decision

Disregards the Duty of Care

Owed to Detainees .............

B. The D.C. Circuit's Decision Fails

to Recognize the Distinction

Between Detention and the

PPCCIOTIOED <i cv iccrcscccacveces ae

11l. UNDER THE CIRCUMSTANCES

OF THIS CASE, THE UNITED

STATES HAS NO LEGITIMATE

“UNIQUELY FEDERAL INTERES”

IN “MILITARY FLEXIBILITY” ....

bo ho ed ae

TABLE OF AUTHORITIES

United States Cases: PAGE

in re Agent Orange Prod. Liab. Litig.,

373 F. Supp. 2d 7 (E.D.N.Y. 2005)...... 24

Banco Nacional de Cuba v. Chase

Manhattan Bank,

658 F.2d 875 (2d Cir. 1981) ............. 11

Boyle v. United Technologies Corp..,

487 07.5. 500 (1992) ......6....6.46. ss eu DaSGEM

Bush v. Lucas,

MGR EF.cee Ot CLC) oko Sel keekeeen ew 10

Cabrera-Alvarez v. Gonzales.

423 F.3d 1006 (9th Cir. 2005)........... 13

Christian County Court v. Rankin & Tharp,

ee a Seen oe chs oeen een nan 8

Connecticut v. Massachusetts,

G2 U.%. 660 (1931) ............ eee 1]

Erie v. Tompkins,

304 U.S. 64 (1938) ..... eee 10

F. Hoffmann-La Roche Ltd. v.

Empagran S.A.,

542 U.S. 155 (2004)................. 2. 11-12

Fernandez v. Wilkinson.

505 F. Supp. 787 (D. Kan. 1980)..... a 11

Hamdan v. Rumsfeld,

548 U.S. 557 (2006) .............11. 14, 15. 16

Hamdi v. Rumsfeld,

DO? U.S. BOT (A004) aos cs vnc bewccew dices 12. 24

4 (/nited otate

wi x 95 s

976 | d 1328 (9th '¢

4 Vg 5 >

Cau f via St

~>7 J . >

ivi Gri ¢ Lars

.AL T ‘ ~~ +

345 U.S. 571 (199

y »

ri, ff ’ , ’

_ Ute a 4 OO Leaaad LVQ

372 U.S. 10 (1963)

— = i ae &. ae deg 2 is |

(5 U.S. O77 C19!

+ J V4 + I a

ed olatles i Ems ¢

Federal Statute

[ Qf iN

" » _

. 8 = ¢ Q

3 U.S.C. § 244

te. YS 26380

Ronald W. Reagan National Defenss«

Authorization Act for Fiscal Year 2005

Pub. L. 108-375. § 1091. 118 Stat. 2067

(2004)

International Authorities:

ittorney General v. Eichmann, 45 Pesakim

Mahoziim 3 (Jerusalem Dist. Ct. 1965)

reprinted in 36 1.L.R. 18, 256 (1968)

nvention Against Torture and Othe

Cruel, Inhuman or Degrading

Treatment or Punishment, G.A. Res. 46

U.N. GAOR, 39th Sess.. Supp. No. ?

U.N. Doc. A/39/51 (Dec. 10, 1984)

Geneva Convention Relative to the

Treatment of Prisoners of War. art

Aug. 12, 1949, 6 U.S.T. 3316

75 U.N.T.S. 135 ae

ternational Committee of the Red Cross

Montreux Document on the Pertinent

International Legal Obligations and

Good Practices for States related te

Operations of Private Military and

Security Compantes during Armea

( onriy i September ae 2OOS

eet

International Covenant on Civil and

Political Rights, G.A. res. 2200A (XX]1),

21 U.N. GAOR Supp. (No. 16), U.N. Dox

A/6316 (1966), 999 U.N.T.S. 171.

entered into force Mar. 23, 1976

Rome Statute of the International Criminal

Court, UN Doc. A/CONF. 183/9: 37 ILM

1002 (1998): 2187 U.N.T.S. 90 art. 33,

s.l1 (July 17, 1998)

The Llandovery Castle Case, Supreme

Court at Leipzig (1921), reprinted in

16 Am. J. Int 1 L. 708 (1922)

The Zyklon B Case (Trial of Bruno Tesh

and Two Others), reported in 1 U.N.

War Crimes Commission, Law Reports

of the Trials of War Criminals 93

(1947)

United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading

Treatment or Punishment. (Committee

Against Torture, Consideration of

Reports Submitted by States Parties

Uinder Article 19 of the Convention,

Addendum to the Second Periodi«

Reports of States Parties Due in 1999.

Uinited States of America,

CAT/C/48/Add.3/Rev.1 (Jan. 13, 2006)

Vil

United Nations Convention Against

Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment,

Committee Against Torture,

Consideration of Reports Submitted

By States Parties Under Article 19 of

the Convention, Addendum to the

Initial Reports of State Parties Due in

1995, United States of America, U.N.

Doc. CAT/C/28/Add.d (Feb. 9, 2000).. 7.

United States v. Ohlendorf (the

Einsatzgruppen Case), IV Trials

of War Criminals 1......... ba aen a! 23

Universal Declaration of Human Rights.

G.A. Res. No 217A (III), art. 8, UN

GAOR, 3rd. Sess., Ist plen. Mtg.,

U.N. Doc A/810 (Dec. 12, 1948) .. 6

Other Authority:

American Civil Liberties Union, Documents

Received From the Department of the

Army in Response to ACLU Freedom of

Information Act Request (released on

Oct. 232i, 2007),

http://www.aclu.org/natsec/foia/log. html

(Army Bates 659-557) 21.65 5.¢0s4<: 9

Jordan J. Paust. Judicial Power to

Determine the Status and Rights of

Persons Detained Without Trial,

44 HARV. INT'L L.J. 503 (2004) 6

Vill

PAGE

Melissa A. Waters, Creeping Monism: The

Judicial Trend Toward Interpretive

Incorporation of Human Rights

Treaties, 107 COLUM. L. REV. 628

Be OF 6 Sea as paar Peseta ions

RESTATEMENT (THIRD) OF THé LAW OF

FOREIGN RELATIONS § 114 (1987).

1.S. DEP’T OF THE ARMY, UNITED STATES

ARMY COUNTERINSURGENCY

MANDBOOK (2006) ........2.cscec05.

one

—

1S. Dep't of Defense Directive 2310.01E,

memeemuer o. SO0G «so. 5 ces cs ceeecencess

U.S. Reservations, Declarations, and

Understandings, International

Cevenant on Civil and Political Rights,

138 Cong. Rec. S4781-01 (daily ed.,

April 2, 1992).

V. TASIKAS ET. AL., RULE OF LAW

HANDBOOK: A PRACTITIONER'S

GUIDE FOR JUDGE ADVOCATES (2007).

INTEREST OF AMICI CURIAE'

International human rights law recognizes and

seeks to enforce the inalienable rights of all per-

sons that derive from their very humanity. Inter-

national humanitarian law regulates conduct

during hostilities and affords significant protec-

tions to persons detained in connection with war.

The United States has long championed the prin-

ciples of international human rights and human-

itarian law. Over the course of its history, the

United States has subscribed to numerous inter-

national human rights and humanitarian law

instruments—some of which it helped create—

that protect individuals from torture and other

gross human rights violations.

Amict, the organizations and experts listed

below, are dedicated to the support and defense of

those rights and protections and have a unique

perspective and expertise on the issues arising in

this case insofar as they intersect—as they surely

do—with international human rights and human-

itarian law. The following organizations join this

brief:

Human Rights First promotes laws and policies

that advance universal rights and freedoms and

exists to protect and defend the dignity of each

The parties have consented to the filing of this brief.

No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation of submission of this brief.

No person other than amici curiae, their members, or their

counsel made a monetary contribution to its preparation or

submission.

individual through respect for human rights and

the rule of law.

Human Rights Watch (HRW) is one of the

world’s leading independent organizations dedi-

cated to defending and protecting human rights.

HRW investigates and exposes human rights vio-

lations and holds abusers accountable. HRW cur-

rently monitors human rights abuses in over 80

countries.

Physicians for Human Rights harnesses the spe-

clalized skills of doctors, nurses, public health

specialists, and scientists to investigate and stop

human rights abuses.

The Center for Victims of Torture (CVT) is an

internationally respected torture treatment center

with more than 25 years of experience treating

torture survivors. CVT works to heal the wounds

of torture on individuals, their families and their

communities and to stop torture worldwide.

In addition, the following experts join this brief

in their personal capacity (affiliations are pro-

vided for identification purposes only):

Ilias Bantekas is a Professor of International

Law and Associate Director of the Centre for

International and Public Law at Brunel Univer-

sity School of Law in the United Kingdom. He is

an expert in international humanitarian law and

public international law.

John Cerone is Professor of International Law

and Director of the Center for International Law

& Policy at New England Law | Boston. He is an

expert in human rights and international human-

itarian law.

Scott Horton is a lecturer in law at Columbia

Law School and is an expert in national security

and public international law.

Marco Sassoli is a Professor and Director of the

Department of International Law and Interna-

tional Organization at the University of Geneva,

and Associate Professor at the Universities of

Quebec in Montreal and Laval, Canada. He is an

expert in human rights and international human-

itarian law.

SUMMARY OF ARGUMENT

The torture and abuse visited on detainees at

Abu Ghraib was a violation of fundamental human

rights and humanitarian law principles. The

majority decision of the court of appeals below was

also reached in apparent disregard of, and con-

trary to, those principles. The decision by the D.C.

Circuit to immunize the tortious conduct of pri-

vate military contractors on the ground that such

contractors were “integrated into combatant activ-

ities over which the military retains command

authority” is incompatible with principles of inter-

national law to which the United States has sub-

scribed in at least two respects. First, it leaves the

aggrieved parties without a civil remedy for the

violations of their human rights. Second, it

ignores that individuals taken and detained in the

course of combat are owed a duty of care under the

Geneva Conventions and that civil hability arises

from violation of that duty. The court’s unprece-

dented extension of the government contractor

defense articulated in Boyle v. United Technolo

gies Corp., 487 U.S. 500 (1992), to immunize

unauthorized tortious conduct cannot be recon-

ciled with those principles.

Denying a tort remedy to plaintiffs by extending

the government contractor defense here would

perpetuate a pernicious gap in accountability.

Unlike certain military personnel, no private con-

tractor at Abu Ghraib has been criminally prose-

cuted. Immunizing government contractors for the

acts alleged would create the appearance that the

United States condones torture by proxy or is even

willing to invite abuses by outsourcing certain

military functions to private actors for whose

conduct the government need not answer. The

problem is not a small one, as there are more con-

tractors than soldiers in Iraq and Afghanistan.’

For these reasons in addition to those set forth

in the Petition, certiorari should be granted and

the decision of the court of appeals below should

be reversed.

See Petition for Certiorari at 20-21

ARGUMENT

I. THE GOVERNMENT CONTRACTOR

DEFENSE SHOULD NOT BE EXTENDED

IN THE NAME OF A FEDERAL INTER-

EST WHERE SO DOING UNDERMINES

THE U.S. COMMITMENT TO INTERNA-

TIONAL HUMAN RIGHTS

A. The United States Has Embraced a

Policy of Ensuring That a Civil

Remedy Exists for Victims of Gross

Human Rights Violations

International human rights law prohibits the mis-

treatment of persons in government custody in all

circumstances, whether in peace or wartime. A cru-

cial component of international human rights law is

the right to fair and adequate compensation for vio-

lations of human rights-—including the torture and

other acts of abuse alleged by plaintiffs here.

The right to a remedy is enshrined in interna-

tional treaties and international customary law,

including in Article 14 of the Convention Against

Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”) and in Articles

2(3)(a) and 9(5) of the International Covenant on

Civil and Political Rights (“ICCPR”)—each of which

has been ratified by the United States.® The right

to a remedy is also reflected in Article 8 of the Uni-

. Convention Against Torture and Other Cruel, Inhu

man or Degrading Treatment or Punishment, G.A. Res. 46,

at 197, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc.

A/39/51 (Dec. 10, 1984); International Covenant on Civil and

Political Rights, G.A. res. 2200A (XXI), at 52, 21 U.N. GAOR

Supp. (No. 16) U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171,

entered into force Mar. 23, 1976.

versal Declaration of Human Rights, a proclama

tion of the United Nations General Assembly,

which states that “[e]veryone has the right to an

effective remedy by the competent national tri-

bunals for acts violating the fundamental rights

granted him by the constitution or by law.”4 In

addition, the Geneva Conventions recognize various

private rights and contemplate compensation in

courts of law.° As a party to instruments such as

the CAT, the ICCPR and the Geneva Conven-

tions—and as the earliest proponent of the Uni-

versal Declaration of Human Rights-—the United

States has demonstrated its commitment to pro-

tecting international human rights and to provid-

ing a right to a remedy where, as here, those rights

are alleged to have been violated.

These principles were recently affirmed by the

United States and other states in the Montreux

Document,® which, while not a legally binding

instrument, contains various “statements” that

are relevant to the principle that states are

responsible for providing a right to a remedy, even

where gross human rights abuses may be perpe-

trated by private actors (regardless of whether

. Universal Dec!aration of Human Rights, G.A. Res. No

217A (III), art. 8, UN GAOR, 3rd. Sess., lst plen. Mtg., U.N

Doc A/810 (Dec. 12, 1948)

° See, e.g., Jordan J. Paust, Judicial Power to Deter

mine the Status and Rights of Persons Detained Without

T'rial, 44 HARV. INT'L L.d. 503, 516 nn. 43-45 (2004)

Document on the Pertinent International Legal Obligations

and Good Practices for States related to Operations of Private

Military and Security Companies during Armed Conflict,

September 17, 2008.

international human rights law is found to extend

to private actors). Most notably, Statement #4 pro-

vides: “Contracting States are responsible to

implement their obligations under international

human rights law. ... To this end they have the

obligation, in specific circumstances, to take

appropriate measures to prevent, investigate and

provide effective remedies for relevant misconduct

of PMSCs [private military and security compa

nies] and their personnel.” (emphasis supplied). A

section on “good practices” follows, which includes

this recommendation (#72): “To provide for non-

criminal accountability mechanisms for improper

and unlawful conduct of PMSCs and their per-

sonnel, including: (a) providing for civil liability;

and (b) otherwise requiring PMSCs to provide

reparation to those harmed by vie misconduct of

PMSCs and their personnel.”

The United States relies on state as well as fed

eral law to provide the civil remedy due victims of

human rights violations.’ Lawsuits in pursuit of a

: See, e.g., United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Committee Against Torture, Consideration of

Reports Submitted By States Parties Under Article 19 of the

Convention, Addendum to the Initial Reports of State Parties

Due in 1995, United States of America, U.N. Doc

CAT/C/28/Add.5 (Feb. 9, 2000) [hereinafter U.S. Report to

CAT (2000)]; U.S. Reservations, Declarations, and Under

standings, International Covenant on Civil and Political

Rights, 138 Cong. Rec. S4781-01, 9 & (daily ed., April 2,

1992) (“[T]o the extent that state and local governments

exercise jurisdiction over [matters relating to the Covenant},

the Federal Government shall take measures appropriate to

the Federal system to the end that the competent authorities

of the state or local governments may take appropriate mea

sures for the fulfillment of the Covenant.”)

remedy for a violation of international human

rights have a long history in our state courts and

a number of state court decisions have addressed

war crime and human rights liability.”

Contrary to this principle and precedent, the

decision of the D.C. Circuit in this case will result

in victims of torture or other abuse at the hands of

private military contractors being precluded from

any meaningful remedy. The existence of the For-

eign Claims Act (“FCA”), 10 U.S.C. § 2734, which

provides for compensation, through an adminis-

trative process, to individuals who suffer, inter

alia, personal injury or death as a result of non-

combat activities of the armed forces, does not

cure the problem created by the D.C. Circuit in

this case. The FCA covers “civilian employee|[s] of

the military department concerned,” but does not

provide for compensation for the injurious acts of

civilian contractors who work for private compa-

nies. The FCA, therefore, docs not provide a mech

anism to compensate the victims of abuses

" See, e.g., Christian County Court v. Rankin & Tharp,

63 Ky. 502, 505-06 (1866):

|Tjhere is either no remedy for the wrong, or it

must be an action against the persons who did the

wrong. There must be a remedy, and of that rem

edy the State judiciary has jurisdiction. There is

nothing in the Federal Constitution which deprives

a State court of power to decide a question of inter

national law incidentally involved in a case over

which it has jurisdiction; and for every wrong the

common law of Kentucky provides an adequate

remedy. To sustain this action, therefore, it is not

necessary to invoke any statutory aid,

perpetrated by private military contractors.*

There is therefore a gap in federal law—the need

to compensate victims of wartime abuses com-

mitted by private military contractors—that state

tort law is available to fill.

B. The United States Has a Uniquely

Federal Interest In Effectuating the

Human Rights Law Principles It Has

Adopted and Can Do So By Making

a Civil Tort Remedy Available To

Alleged Victims

The D.C. Circuit erred in holding that allowing

plaintiffs’ state law claims to proceed against mil-

itary contractors would create a “significant con-

flict” with federal interests. Quite the contrary,

precluding such claims creates a significant con-

flict with the unicue federal interest in effectu-

ating the values and goals of international human

rights law. such <s those espoused in the Mon-

treaux Document. which the U.S. has publicly

embraced.

The government contractor defense is not based

on constitutional or statutory authority, but

rather constitutes “federal law of a content pre-

scribed . . . by the courts—so-called ‘federal

common law.” Boyle, 487 U.S. at 504 (citations

. A claim brought under the FCA by the widow of an

Iraqi man who was killed by private military contractors was

denied because contractors are not governmentul emplovees.

See American Civil Liberties Union, Documents Received

From the Department of the Army in Response to ACLU

Freedom of Information Act Request (released on Oct. 31,

2007). http://www.aclu.org/natsec/foia/log.html (Army Bates

--_-- -—-

omitted). The federal courts recognize the need to

tread cautiously when judicially “legislating” sub-

stantive outcomes under the rubric of federal com-

mon law.'® Here, the D.C. Circuit has extended the

government contractor defense to preempt claims

arising out of facts that are dramatically different

from those of Boyle. Moreover, the D.C. Circuit

has failed to take the relevant principles of inter-

national human rights law, including principles

that have been incorporated into federal law, into

account. This results in a judicially-created con-

flict with international norms that the United

States embraces.!!

In appropriate cases, federa! courts look to

international law when interpreting federal

statutes or applving federal common law.'? This

sie Despite the need to engage in interstitial lawmaking

from time to time, see Boyle, 487 U.S. at 531 (Stevens, J. dis-

senting), federal courts should be reluctant to create new

rules of decision in cases raising novel policy questions more

appropriate for Congress. See, e.g.. Bush v. Lucas, 462 U.S.

367 (1983); United States v. Gilman, 347 U.S. 507. 411

(1954). See also lbrahim v. Titan Corp. 1, 391 F. Supp. 2d 10,

14 (D.D.C. 2005) (noting that since Erie v. Tompkins, 304

U.S. 64 (1938), the role of federal common law has been dra-

matically reduced, and courts have generally looked for leg-

islative guidance before taking innovative measures).

ag See Melissa A. Waters, Creeping Monism: The Judi-

cial Trend Toward Interpretive Incorporation of Human

Rights Treaties, 107°-COLUM. L. REV. 628, 661 (2007) (By

seeking to read domestic legislation consistently with inter-

national commitments undertaken by the political branches,

acourt....in ensure that its government is not compro

mised or embarrassed in the foreign affairs arena.).

es See, e.g., Weinberger v. Rossi, 456 U.S. 25, 29-30, 32-

33 (1982); McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10, 21 (1963); Lauritzen v. Larsen, 345

U.S. 571, 578 (1953).

—

approach is consistent with the words of this

Court in The Paquete Habana: “International law

is part of our law. and must be ascertained and

administered by the courts of appropriate juris-

diction as often as questions of right depending

upon it are duly presented for their determina-

tion. 175 U.S. 677, 700 (1900). Federal courts

draw on treaties and customary international law

to decide matters ranging from boundary disputes

to questions of treaty interpretation and official

immunity.'* In particular, federal courts—includ-

ing this Court—have looked to international law

to shape the law applicable to the treatment of

prisoners and detainees

International law also has a limiting value for

the federal courts. Courts consult that law

because an act of Congress ought never to be con-

strued to violate the law of nations if any other

possible construction remains. Murray v. The

Schooner Charming Betsy, 2 Cranch 64, 118

(1804); F. Hoffmann-La Roche Ltd. v. Empagran

See, e.g.. Banco a de Cuba v. Chase Manhkat-

tan Bank, 658 : F.2d 875, 891-93 (2d Cir. 1981) (finding that

under customary international Sst compensation for a tak-

ing was required); Connecticut v. Massachusetts, 282 U.S

660. 670 (19381) (noting relevance of international law to

boundary disputes); United States v. Enger, 472 F. Supp.

490, 540-41 (D.N.J. 1978) (construing the congressional

intent underlying the term goods or chattels of a diplomat by

reference to customary international law)

gis See, e.g... Hamdan v. Rumsfeld, 548 U.S. 557, 6138

(2006): Hamdi v. Rumsfeld, 542 Ll Ss. 507, 520 (2004). See

also Lareau v. Manson, 507 F. Supp. 1177, 1188 nQ

(D. Conn. 1980) (Cabranes, J.), affd in part, 651 F.2d 96 (2d

Cir. 1981): Fernandez Wilkinson. 505 F. Supp. 787, 795-98

(D. Kan. 1980), aff'd on other grounds sub nom., Rodriguez

Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 1981).

S.A., 542 U.S. 155. 164 (2004). This premise is

even more important in the federal common law

context. Just as courts will not assume that an act

of Congress is intended to create a conflict with

international law, they should also take care not

to create such conflicts when engaged 1n judicial

lawmaking.

The desirability of conforming federal judge-

made law to international norms 1s particulerly

compelling when Congress has already indice.r.ed

agreement with those norms by voting in favor of

U.S. accession to the CAT. In its initial report to

the U.N. Commitee Against Torture, the United

States discussed the role of the FTCA in uphold-

ing U.S. obligations pursuant to the CAT. By

waiving the sovereign immunity of the United

States so that civil actions seeking money dam-

ages can proceed in federal court, the United

States asserted that the FTCA provides a mecha-

nism by which victims of abuse may sue the

United States “for personal injury or loss of prop-

erty caused by a negligent or wrongful act or omis-

sion of a government employee acting within the

scope of his or her office or employment.”'* The

United States noted that the FTCA makes it pos-

sible for victims of abuse to sue “federal law

enforcement officers for intentional torts, includ-

ing assault, battery, and false arrest.”'® It is ironic

that the FTCA—the same federal statute proffered

by the State Department as providing a civil rem-

edv for injuries caused in violation of the inter-

national ban on cruel, inhuman and degrading

> |

1.)

treatment or punishment—is now the basis for a

claimed immunity by those who are alleged to

have violated those norms.

The scope of the government contractor defense

should be interpreted in a manner that recognizes

the unequivocal international prohibition of tor-

ture and other cruel, inhuman, or degrading treat-

ment or punishment, and the importance placed

by international human rights law on the right to

a civil remedy for such abuses.'’ The decision of

the D.C. Circuit creates a judge-made rule of deci-

sion that denies the victims of human rights

abuses the civil remedy embraced by international

iaw and U.S. policy.

. Regardless of whether the CAT or the ICCPR or

other treaties the United States has signed but not ratified

—directly create enforceable rights, the norms encapsulated

by such treaties are enforceable where they have attained

the status of binding customary international law. Sosa vu

Alvarez Machain, 542 U.S. 692, 695 (2004): The Paquete

Habana, 174 US. 677, 700 (1900). See also Cabrera-Alvarez

v. Gonzales, 423 F.3d 1006, 1007 (9th Cir. 2005) (treating

certain provisions of the U.N. Convention on the Rights of

the Child—which the United States has not ratified—as cus-

tomary international law for purposes of evaluating an

agency interpretation)

Il. THE GOVERNMENT CONTRACTOR

DEFENSE, AS EXTENDED BY THE

COURT OF APPEALS, CREATES A CON-

FLICT WITH U.S. OBLIGATIONS UNDER

INTERNATIONAL HUMANITARIAN LAW

In addition to creating a conflict with interna-

tional human rights law, the D.C. Circuit's

decision creates a conflict with international

humanitarian law (“IHL”), often referred to as the

law of war. As this Court has confirmed in recent

years, IHL plays an important role in defining the

scope of U.S. obligations to persons in its cus-

tody.'* The judge-made government contractor

defense set forth in Boyle should not be expanded

in such a way as to conflict with those obligations.

A. The D.C. Circuit’s Decision Disregards

the Duty of Care Owed to Detainees

The D.C. Circuit held that plaintiffs’ state law

tort claims are preempted because the application

of state law would produce “significant conflict”

with the federal interests represented by the

“combatant immunity” exception to government

tort lability under the FTCA. The court based its

holding on the conclusion that “tort duties of rea-

sonable care do not apply on the battlefield” and

that the defendant contractors thus owed no duty

“Z

See Hamdan, 548 U.S. 557, 560, 561-62 (2006) (rec-

egnizing that military commissions would have to comply

with the “rules and precepts of the law of nations,” includ-

ing, inter alia, the four Geneva Conventions) (internal cita-

tions omitted); Hamadi, 542 U.S. at 520 (relying on the law of

war, including Geneva and Hague Conventions to determine

scope and limits on definition of enemy combatant).

of care to the plaintiff-detainees. Saleh v. Titan

Corp., 580 F.3d 1, 7 (D.C. Cir. 2009).

This conclusion is wrong. IHL governs the treat-

ment of detained persons in wartime. LHL imposes

a strict legal duty to protect persons in the cus-

tody of the detaining power, and prohibits the use

of violence or cruel or degrading treatment of any

sort. See, e.g., Hamdan v. Rumsfeld, 548 U.S. at

613; Geneva Conventions, Common Article 3.'%

Because the court of appeals failed to acknowledge

the duty of care owed to detained persons, who are

necessarily removed from the battlefield, it incor-

rectly reasoned that a conflict exists between the

standard of care imposed by tort law and what it

supposed to be the absence of any such duty to

detained persons. No conflict exists, and there is

no basis for the court’s unprecedented expansion

of the government contractor defense to preempt

civil suits arising out of the mistreatment of

detainees in government custody by private mili-

tary contractors.

Common Article 3, so called because it is found

in all four Geneva Conventions, prohibits cruel

treatment, torture, and outrages upon personal

dignity against persons no longer taking active

part in hostilities. It states:

(1) Persons taking no active part in the

hostilities, including members of armed

forces who have laid down their arms and

those placed ‘hors de combat’ by sickness,

wounés, detentton, or any other cause,

Geneva Convention Relative to the Treatment of

Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75

U.N.T.S. 135 [hereinafter Common Article 3].

shall in all circumstances be treated

humanely...

To this end, the following acts are and

shall remain prohibited at any time and

in any place whatsoever with respect to

the above-mentioned persons:

(a) violence to life and person, in particu-

lar murder of all kinds, mutilation, cruel

treatment and torture:

a eh

ticular humiliating and degrading treat-

ment. ...

ld. (emphasis added). In Hamdan, this Court rec-

ognized that Common Article 3 establishes the

minimum standard of humane treatment for all

detainees held in any armed conflict. 548 U.S. at

557, 56-62. The Department of Defense (DOD) has

reached the same conclusion:

All persons subject to this Directive shall

observe the requirements of the law of

war, and shall apply, without regard to a

detainee’s legal status, at a minimum the

standards articulated in Common Article

3 to the Geneva Conventions of 1949... .,

as construed and applied by U.S. law,..

in the treatment of all detainees, until

their final release, transfer out of DoD

control, or repatriation.

U.S. Dep't of Defense Directive 2310.01E, § 4.2,

September 5, 2006.°°

” See also Ronald W. Reagan National Defense Autho-

rization Act for Fiscal Year 2005, Pub. L. 108-375, § 1091,

Both of the above authorities—one an expres-

sion of the law of nations that has been adopted by

this Court, the other a clear expression of the view

of the Executive Branch—contradict the view

taken by the majority below. According to the

majority opinion, “|w]Je think that it is an unten-

able, even absurd, articulation of a supposed con-

sensus of international law” that assault and

battery could be condemned by that body of law.

Saleh, 580 F.3d at 15. But the majority opinion is

wrong. Under IHL, it is overwhelmingly clear that

the assault and battery of a detained prisoner vio-

lates Article 3 of the Geneva Conventions.

B. The D.C. Circuit’s Decision Fails to

Recognize the Distinction Between

Detention and the Battlefield

The distinction between the “battlefield” and

“detention” is essential to the overall framework

of IHL. If those two zones of activity are conflated

into one—as the majority opinion below has done

—Common Article 3 is rendered meaningless. The

rights of detained persons to humane treatment

would become unenforceable if detained persons

were viewed as no different from the enemy sol-

dier on the battlefield who poses an immediate

threat and who lawfully can be shot dead.

Split second decisions are made on the battle-

field and those decisions may harm innocent vic-

tims. It is the reality of war that a soldier may

118 Stat. 2067 (2004) (the McCain Amendment): No indi-

vidual in the custody or under the physical control of the

United States Government, regardless of nationality or phys-

ical location shall be subject to cruel, inhuman, or degrading

treatment or punishment.

justifiably fire his weapon at an apparent threat

on the battlefield, only to subsequently discover

that he has mistakenly killed or wounded an inno-

cent civilian. To allow tort claims to proceed

against soldiers for that conduct—the authorized

use of force—would, as the majority below fears,

hamper the military's ability to perform its func-

tion. The “combatant activities” exception of the

FTCA may properly be construed to bar tort

claims arising from such battlefield incidents. 28

U.S.C. § 2680()).

But if the soldier’s privilege to commit acts of

violence on the battlefield were permitted to

extend to the controlled environment of the deten-

tion center, immunity would be extended to con-

duct that is condemned by IHL and does not

require the protection from civil liability that

greatly concerns the majority opinion. For exam-

ple, under the result of the court below, the guard

at Abu Ghraib who without provocation works vio-

lence upon a detained person would nonetheless

be immune from civil lability in the name of

“eliminating tort concepts from the battlefield.”

Saleh, 580 F.3d at 7. To contend that there is no

distinction between the battlefield and the deten-

tion center is to provide a free pass to soldiers and

contractors to disregard the obligation imposed by

Common Article 3 and to condone the intentional

mistreatment of detained persons in violation of

IHL.

The majority opinion below side-stepped this

distinction in its effort to identify a significant

conflict between a federal interest and applicable

state tort law. In reaching this conclusion, the

court relied on the Ninth Circuit’s decision in

Koohi v. United States, 976 F.2d 1328 (9th Cir.

1992), but Koohi provides an illustration of IHL

principles that undermines, rather than supports,

the reasoning and result below. In Koohi, the

Ninth Circuit applied Boyle to bar a products lia-

bility suit against a military contractor, for harm

caused by the contractor’s missile system used by

the U.S. military against perceived enemy attack

ers on the battlefield (who in fact were civilians).

Id. at 1337. The Koohi court looked to the FTCA

for guidance on the question of whether allowing

the tort suits to go forward would produce a “sig-

nificant conflict” with federal policies or interests.

Id. (applying Boyle, 487 U.S. at 504-13). Koohi

concluded that the “combatant activities” excep-

tion to the FTCA precluded tort liability because

under both domestic and international law, the

military is entitled to defend itself and owes no

“duty of care” to an attacker on the battlefield. Jd.

As the court explained, “one purpose of the com-

batant activities exception is to recognize that

during wartime encounters no duty of reasonable

care is owed to those against whom force is

directed as a result of authorized military action.”

Id. (emphasis added).

Koohi’s determination itself hinged on an

application of IHL principles. Those principles

authorize force to be directed towards military

objectives, such as enemy forces on the battlefield.

The plaintiffs in that case were owed no duty of

reasonable care because plaintiffs appeared to be

engaged with the defendants in combat. 976 F. 2d

at 1337.

In this case, the D.C. Circuit failed to recognize

that the IHL framework that drove the Koohi

court’s decision compels the opposite conclusion

here. In the battlefield context, military objectives

may properly be targeted, and lawful, split-second

military decisions may properly be insulated from

judicial review. See Koohi, 976 F. 2d at 1337. By

contrast, where military or civilian personnel are

engaged in the detention of prisoners or suspected

enemies who are hors de combat, IHL unambigu-

ously imposes a legal duty of humane treatment.

See Common Article 3. While the interpretation of

the FTCA’s combatant activities exception in

Koohi can be harmonized with the laws of war, the

D.C. Circuit’s application of the statute to the fun-

damentally distinct factual circumstances here is

inconsistent with the laws of war and should be

rejected. The Schooner Charming Betsy, 2 Cranch

at 118; see also RESTATEMENT (THIRD) OF THE

LAW OF FOREIGN RELATIONS § 114 (1987) (“Where

fairly possible, a United States statute is to be

construed so as not to conflict with international

law or with an international agreement of the

United States.”).

Amici can identify no federal interest in “elim-

inating tort concepts” from detention or in

developing domestic jurisprudence that directly

conflicts with U.S. obligations under IHL. To the

contrary, there is a pre-existing and exceptionally

strong federal interest in upholding the laws of

war (and DOD policy to comply with those laws)

including those that require the humane treat-

ment of prisoners in U.S. custody. This federal

interest is even stronger in counterinsurgency

operations such as the one ongoing in Iraq, where

protecting the lives of U.S. soldiers depends on

winning over the hearts and minds of the popu-

lation under occupation by demonstrating our

moral and legal accountability. As General Dav.d

Petraeus explained in a recent U.S. Army coun-

terinsurgency manual:

Illegitimate actions are those involving

the use of power without authority—

whether committed by government offi-

cials, security forces, or counterinsur-

gents. Such actions include unjustified or

excessive use of force, unlawful detention,

torture, and punishment without trial.

Efforts to build a legitimate government

through illegitimate actions are self-

defeating, even against insurgents who

conceal themselves amid noncombatants

and flout the law.

Moreover, participation in [counterinsur-

gency| operations by U.S. forces must fol-

low United States law, including domestic

laws, treaties to which the United States

is a party, and certain [host nation] laws.

Any human rights abuses or legal viola-

tions committed by U.S. forces quickly

become known throughout the local pop-

ulace and eventually around the world.

Illegitimate actions undermine both

long- and short-term [counterinsurgency]

efforts.

U.S. DEP’T OF THE ARMY, UNITED STATES ARMY

COUNTERINSURGENCY HANDBOOK 1-24, 41-132

(2006) (reference omitted). See also V. TASIKAS

ET. AL., RULE OF LAW HANDBOOK: A PRACTI-

TIONER’S GUIDE FOR JUDGE ADVOCATES 67 (2007)

(“in light of the need to establish the legitimacy of

the rule of law among the host nation’s populace,

conduct by US forces that would be questionable

under any mainstream interpretation of interna-

tional human rights law is unlikely to have a

place in rule of law operations”).

Ill, UNDER THE CIRCUMSTANCES OF THIS

CASE, THE UNITED STATES HAS NO

LEGITIMATE “UNIQUELY FEDERAL

INTEREST” IN “MILITARY FLEXIBILITY”

The D.C. Circuit concluded that allowing state

law tort suits to proceed against military con-

tractors would conflict with federal interests

because such suits “are really indirect challenges

to the actions of the U.S. military,” and would

“surely hamper military flexibility.” Saleh, 580

F.3d at 7, 8. But the court reached that conclusion

without considering that the military never has

the “flexibility” to command conduct involving tor-

ture or cruel, inhuman or degrading treatment.

The government contractor defense developed in

response to a products liability claim arising from

the malfunction of equipment manufactured to

government specifications, where the uniquely

federal interest at stake was “the procurement of

cquipmenée by the United States.” Boyle, 487 U.S.

at 507. To maintain the government’s immunity

from suits arising out of discretionary decisions

such as the specifications of military hardware,

the rule protects contractors whose products con-

form to specifications commanded by the govern-

ment. As a result, the government contractor

defense is analogous to the “superior orders”

defense, which in some circumstances excuses tor-

tious acts commanded by higher authority.

Extending Boyle to this case would be illogical

and unjust, because neither the military nor its

993

ant €

contractors can ever lawfully exercise discretion or

command to engage in acts of torture or other

vyross human rights violations. Both international

law and U.S. federal law, see 18 U.S.C. § 2340A,

18 U.S.C. § 2441, make clear that torture and sim-

ilar abuses are never acceptable, without excep-

tion. The “superior orders” defense is unavailable

where the superior orders are manifestly unlaw-

ful,*! which is necessarily the case when such

orders would require or facilitate a clear violation

of international human rights law:

The government contractor defense is

essentially based on the concept that the

government told me to do it, and knew as

much or more than I did about possible

harms, so I can stand behind the govern-

= See United States v. Ohlendorf (the Einsatzgruppen

Case), 1V Trials of War Criminals 1, 470-73, 483-86; The

Llandovery Castle Case, Supreme Court at Leipzig (1921),

reprinted in 16 Am. J. Int’) L. 708, 721-22 (1922); Attorney

General v. Eichmann, 45 Pesakim Mahoziim 8 (Jerusalem

Dist. Ct. 1965), reprinted in 36 1.L.R. 18, 256 (1968): The

Zyklon B Case (Trial of Bruno Tesh and Two Others),

reported in 1 U.N. War Crimes Commission, Law Reports of

the Trials of War Criminals 93 (1947). See also Rome Statute

of the International Criminal Court, UN Doc. A/CONFE. 1837/9;

37 ILM 1002 (1998); 2187 U.N.T.S. 90 art. 33, 5.1 (July 17,

1998) (superior orders defense available only where order

“not manifestly unlawful”); United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Committee Against Torture, Con

sideration of Reports Submitted by States Parties Under Artlt-

cle 19 of the Convention, Addendum to the Second Periodic

Reports of States Parties Due in 1999, United States of Amer-

ica, CAT/C/48/Add.3/Rev.1 94.6 (Jan. 13, 2006) (“No circum

stance whatsoever, including ... an order from a superior

officer or public authority, may be invoked as a justification

for or defense to committing torturce.”).

ment (which cannot be sued because of its

immunity). It is designed in part to save

the government money in its procurement

costs... . [T]his defensive notion has

been rejected [at Nuremburg and in other

post-World War II criminal trials]. It

should not be recognized, as the law now

stands, by courts protecting civilians and

land from depredations contrary to inter

national law.

In re Agent Orange Prod. Liab. Litig., 373 F. Supp.

2d 7, 91 (E.D.N.Y. 2005), aff'd, 517 F.3d 104 (2d

Cir. 2008), cert. denied, 129 8S. Ct. 1524 (2009).

The absurdity of considering whether the gov-

ernment—and its contractors can lawfully exer-

cise their discretion to engage in or authorize

torture may explain why the D.C. Circuit looked

to the FTCA’s “combatant activities” exception for

the purpose of identifying a preemptive federal

interest. Yet even the law governing combatant

activities leaves no room for “flexibility” to com-

mand or condone the type of conduct alleged in

this case. Just as no act of governmental “discre

tion” can justify torture, no military order—or del-

egation of responsibility—can provide a defense to

the wrongdoing alleged here.

CONCLUSION

The federal government has an interest in its

comphance with international norms of civilized

behavior, whether expressed in statutes, treaties

or customary international law. The appearance

that the government's contractors are being given

a free pass for serious acts of brutality can only

deprive the United States of any moral suasion in

its ongoing struggle to achieve greater worldwide

observance of these norms. It will also place into

peril American citizens who may become captives

of a foreign power and for whom the United States

will demand treatment no worse than what it

affords to others. Amict urge the Court to grant

the writ of certiorari and to conclude that the

expansion of the government contractor defense to

immunize gross violations of human rights law

and IHL is an unjust and unwarranted result.

Respectfully submitted,

ROBERT P. LOBUE