# Amicus Curiae Brief — Saleh v. Titan Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1918%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 821 ## Text 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 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 r+ (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 7 ( 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 | 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) 14 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 is 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). 15 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]. 19 16 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 (c) outrages upon personal dignity, in par- 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, 17 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. 18 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 19 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 20 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 21 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 22 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.”). 2A 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 Counsel of Record PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 (212) 336-2000 rplobue@pbwt.com Of Counsel MELINA C. MILAZZO HUMAN RIGHTS FIRST 333 Seventh Avenue, 13th Floor New York, New York 10001 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1918%3A07. Public record. Not legal advice.