The Battlefield Preemption Doctrine: Preempting Tort Claims Against Contractors on the Battlefield to Preserve Federal Interests in Wartime Matters

Transcription

1 The Battlefield Preemption Doctrine: Preempting Tort Claims Against Contractors on the Battlefield to Preserve Federal Interests in Wartime Matters BY sonia tabriz On June 30, 2008, a number of Iraqis detained in Abu Ghraib military prison filed lawsuits against government contractors hired by the United States. 1 These contractors were procured by the U.S. federal government to assist the U.S. military by interrogating persons thought to be withholding information. 2 The detainees filed tort claims against these contractors, alleging that they had engaged in torture and abuse. 3 More specifically, the detainees claimed that the contractors 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. 4 These allegations, which were recently contemplated by the U.S. Court of Appeals for the Fourth Circuit, raise a series of important questions regarding government contractor accountability when contractors aid the United States in implementing foreign policy objectives. 5 These are not easy questions. 6 The answers depend on a series of political inquiries that directly implicate the federal government s wartime efforts and international presence. 7 Upon contemplating the nature and gravity of these issues, only one guiding principle remains certain: Courts are not the appropriate forum for raising significant questions regarding military matters, and judges should not be answering them. 8 The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) expressed this sentiment in Saleh v. Titan Corp. 9 when it set forth the battlefield preemption doctrine and applied it to bar tort claims against the defendant-contractor. 10 The battlefield preemption doctrine stems from the combatant activities exception of the Federal Tort Claims Act (FTCA). 11 The doctrine states: During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor s engagement in such activities shall be preempted. 12 In practice, this rule removes matters relating to contractor accountability from the court s reach and instead reserves About the Author SONIA TABRIZ graduated from The George Washington University Law School, where she served as the editor-in-chief of the Public Contract Law Journal. She has accepted a position to join Fox Rothschild LLP in September She would like to thank Dean Daniel I. Gordon, David Kasanow, Judge Jeri Somers, and Professor Karen Thornton for their invaluable insight throughout the writing process. This article placed third in Division I (law students) of the American Bar Association Section of Public Contract Law s 2012 Writing Competition. It was previously published in the Public Contract Law Journal (Spring 2013). Journal of Contract Management / Summer

2 them for politically accountable branches to address in accordance with the nation s federal interests. 13 This article urges all courts to adopt the battlefield preemption doctrine and apply it to tort claims against contractors on the battlefield. 14 This article first chronicles the development of the battlefield preemption doctrine, including an explanation of the FTCA as well as an overview of important case law. The article then discusses the two primary reasons why courts should adopt the battlefield preemption doctrine, as articulated by the D.C. Circuit in Saleh. Finally, this article provides various statutory and contractual remedies that serve as a more appropriate means of promoting contractor accountability. Origins of the Battlefield Preemption Doctrine After the Supreme Court s decision in Boyle v. United Technologies Corp., 15 courts began drawing parallels to FTCA exceptions in order to bar claims against government contractors. 16 The D.C. Circuit continued this trend in Saleh by establishing the battlefield preemption doctrine, which arises from the combatant activities exception of the FTCA. 17 The Government s Immunity from Suit under Exceptions to the FTCA The United States enjoys sovereign immunity, and is therefore not subject to unconsented suit by private entities. 18 In 1946, Congress passed the FTCA 19 and provided a general waiver of this sovereign immunity. 20 The FTCA permits private parties to recover damages against the government for torts committed by agents of the United States. 21 These permissible claims are limited, however, by a number of exceptions. 22 The discretionary function exception and the combatant activities exception are two particularly relevant limitations to the federal government s waiver of sovereign immunity. The discretionary function exception prohibits claims based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on behalf of the federal government. 23 The purpose of this exception is to ban courts from second-guessing decisions of the legislature that contemplate important social, economic, and political policy considerations. 24 The FTCA also limits the government s waiver of sovereign immunity through the combatant activities exception. 25 The United States is not susceptible to [a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. 26 Stated simply, this exception prevents courts from interfering with decisions made by the federal government regarding military matters. 27 The Discretionary Function Exception as Applied to Government Contractors in Boyle v. United Technologies Corp. Although the FTCA exceptions only preclude tort claims against the federal government, 28 they have served as a basis for parallel court-made doctrines that preclude tort claims against government contractors. This trend began with the Supreme Court s decision in Boyle. David A. Boyle, a U.S. Marine Corps pilot, was killed when his helicopter crashed and he was unable to escape. 29 The helicopter was manufactured by United Technologies Corporation, a government contractor. 30 Boyle s father filed claims against United Technologies under state tort law, alleging that United Technologies defective design ultimately caused his son s death. 31 At trial, the jury awarded Boyle a favorable verdict and money damages, 32 but the Fourth Circuit reversed this decision, and remanded the case with directions to enter judgment for United Technologies. 33 The Fourth Circuit held that the military contractor defense precluded the suit. 34 Boyle then appealed to the Supreme Court, where he argued that the Fourth Circuit had impermissibly recognized a defense, absent statutory language that explicitly immunized government contractors from tort liability. 35 The Supreme Court disagreed. 36 According to the Court, there are certain instances where federal common law in this case, the military contractor defense necessarily preempts state tort law. 37 Federal law should govern when the litigation entails uniquely federal interests 38 and there exists a significant conflict between those federal interests and state tort law. 39 The Court relied on the discretionary function exception of the FTCA to identify federal interests at issue. 40 Though the claims were filed against a government contractor, the case obviously implicated the same interest in getting the government s work done. 41 Specifically, the Supreme Court held that the selection of the appropriate design for military equipment is assuredly a discretionary function within the meaning of [the FTCA]. 42 The design process entails decisions that involve balancing various considerations regarding the tradeoff between safety and effective combat. 43 These judgments should not be subject to second-guessing by the courts, even when they are being made by government contractors. 44 Upon establishing that the case implicated uniquely federal interests, the Supreme Court concluded that there was a significant conflict between the state law and the federal 88 Summer 2013 / Journal of Contract Management

3 interests at issue. 45 If the state law tort claim was permitted to proceed, United Technologies may have declined to manufacture the helicopters in accordance with the design approved by the U.S. Navy. 46 Furthermore, future contractors may inflate their contract prices to account for potential damages arising from tort liability, thereby passing the costs through to the federal government. 47 It makes little sense, stated the Supreme Court, to insulate the government against financial liability for the judgment that a particular feature of military equipment is necessary when the government produces the equipment itself, but not when it contracts for the production. 48 Therefore, the Supreme Court remanded the case for judgment in favor of United Technologies. 49 The court s decision in Boyle set the tone for a series of decisions to follow. 50 Various courts referenced Boyle when addressing whether government contractors, working alongside the military in various capacities, should be susceptible to tort liability. 51 For these courts, the Supreme Court s holding had broad implications. 52 Therefore, they did not limit their analysis to the discretionary function exception of the FTCA. Rather, many courts drew a new parallel holding that claims against contractors on the battlefield were preempted as an extension of the combatant activities exception. 53 The D.C. Circuit Establishes the Battlefield Preemption Doctrine in Saleh v. Titan Corp. In Saleh, the D.C. Circuit echoed Boyle and its offspring when it articulated a test for the battlefield preemption doctrine. 54 The contractors in Saleh Titan Corp. and CACI International were hired to provide interrogation and interpretation services to the U.S. military at the Abu Ghraib military prison. 55 The plaintiffs, Iraqi citizens, alleged that they or their relatives had been abused by contractor employees while in custody. 56 Faced with these tort claims, the U.S. District Court for the District of Columbia adopted a legal test: The plaintiffs claims against Titan and CACI would be preempted only if the contractor employees were under the direct command and exclusive operational control of the military chain of command. 57 Applying this test, the D.C. District Court held that the claims against Titan were preempted because its employees were fully integrated into the military. 58 Although Titan had the right to reassign its employees, the military dictated how Titan was to perform its translation duties under the contract. 59 Therefore, the military retained the requisite operational control for preemption. 60 The claims against CACI, however, were not preempted because CACI maintained a great deal of independent authority over its employees. 61 The court held that CACI and the site manager co-managed the employees, which resulted in dual oversight, as opposed to exclusive control by the military. 62 On appeal, the D.C. Circuit rejected the D.C. District Court s approach and established its own legal test for battlefield preemption. 63 The test no longer required that the military have exclusive operational control over the contractors. 64 This is because, according to the D.C. Circuit, the D.C. District Court s formulation incentivized irresponsibility among contractors. 65 A contractor may be deterred from raising issues or concerns to military authorities because this would reveal that the contractor had an internal reporting system in place and thereby retained some operational control. 66 Put differently, a contractor s reporting system could be used as evidence to establish that the military did not have exclusive operational control, 67 thereby subjecting the responsible contractor to tort liability. To alleviate this concern, the D.C. Circuit set forth the following legal test for the battlefield preemption doctrine: During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor s engagement in such activities shall be preempted. 68 A contractor is subject to tort liability only when the contractor operates in a discrete manner, such that its functions are separate from the combatant activities of the military, and the alleged tort victim challenges the contractor s sole discretion. 69 Upon applying this test, the D.C. Circuit held that all claims against both Titan and CACI were preempted. 70 The Fourth Circuit s Adoption of the Battlefield Preemption Doctrine in Al-Quraishi v. L-3 Services, Inc. and Al Shimari v. CACI International, Inc. More recently, the Fourth Circuit applied the battlefield preemption doctrine in Al-Quraishi v. L-3 Services, Inc. 71 and Al Shimari v. CACI International, Inc. 72 While the Fourth Circuit vacated its decision in both cases after reviewing them en banc, 73 the court originally applied the battlefield preemption doctrine in an exemplary manner. The government procured the contractors in both Al-Quraishi and Al Shimari to conduct interrogations for the purpose of obtaining intelligence from Abu Ghraib detainees. 74 The plaintiffs claimed that, while detained, they were tortured and abused by both contractor employees and military personnel. 75 Upon reviewing the claims, the Fourth Circuit applied the Journal of Contract Management / Summer

4 battlefield preemption doctrine and even reduced the level of military oversight required to trigger preemption. 76 While the D.C. Circuit s test mandated that the military retain command authority, 77 the Fourth Circuit provided that where a civilian contractor is integrated into wartime combatant activities over which the military broadly retains command, tort claims arising out of the contractors engagement in such activities are preempted. 78 After applying this test, all of the claims against the contractors were preempted. 79 But this holding, and the accompanying test, were short-lived. On November 8, 2011, the Fourth Circuit vacated its judgments in both Al-Quraishi and Al Shimari and granted en banc review. 80 On rehearing, the Fourth Circuit dismissed the appeals because they were interlocutory appeals over which the court did not have jurisdiction. 81 Because there was no final order or judgment issued by the district courts below, the Fourth Circuit held that it could review the appeals only if they: finally determine[d] 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. 82 According to the Fourth Circuit s en banc majority opinion, immunity from suit is a right entitled to review under the collateral order doctrine, whereas a defense is not entitled to such review. 83 The majority characterized the battlefield preemption doctrine, as set forth by the D.C. Circuit in Saleh, as a defense to liability and not an immunity from suit. 84 Accordingly, the court held that the appeals in Al-Quraishi and Al Shimari were improper for review without shedding a great deal of light on the battlefield preemption doctrine substantively. 85 Fortunately, Judge Wilkinson s dissenting opinion articulated the significant shortcomings of the court s decision and memorialized the rationale behind the battlefield preemption doctrine. Characterizing the majority s jurisdictional ruling as wrong and the decision as anything but innocuous, Judge Wilkinson focused his dissent on the profoundly negative implications of subjecting military operations to tort law, even when the alleged tortfeasor is a contractor. 86 By permitting these suits to proceed, stated Judge Wilkinson: the majority raise[d] thorny questions of whose law should apply, compromise[d] the military s ability to utilize contractors in the future, and nudge[d] foreign policy and war powers away from the political branches of the federal government and into the hands of federal courts. 87 Courts Should Adopt the Battlefield Preemption Doctrine and Apply it to Preempt Tort Claims Against Contractors on the Battlefield This article echoes Judge Wilkinson s concerns regarding the consequences of subjecting contractors on the battlefield to tort liability and urges courts to adopt the battlefield preemption doctrine, as articulated by the D.C. Circuit in Saleh. More specifically, a tort claim against a contractor on the battlefield should be preempted if it arises out of the contractor s wartime activities 88 and the contractor is integrated into combatant activities over which the military retains command authority. 89 Courts should adopt and apply the battlefield preemption doctrine for two primary reasons. First, traditional tort principles do not translate to the battlefield, even when the alleged tortfeasor is a contractor. Second, subjecting contractors on the battlefield to tort liability infringes on important federal interests. Traditional Tort Principles Do Not Translate to the Battlefield Courts should adopt the battlefield preemption doctrine because traditional principles of tort law do not translate to the battlefield. Tort law was developed to deter careless and irresponsible behavior, 90 to punish the tortfeasor, 91 and to recompense victims. 92 The combatant activities exception of the FTCA, from which the battlefield preemption doctrine arises, was enacted to eliminat[e] tort concepts from the battlefield, because [t]he very purposes of tort law are in conflict with the pursuit of warfare. 93 This remains true regardless of whether the alleged tortfeasor is a member of the military or a contractor on the battlefield. One principle of tort law is to deter bad behavior and make tortfeasors more careful. 94 However, exposing contractors on the battlefield to tort liability may interfere with the government s interest in achieving its extraterritorial goals. 95 Military personnel and contractors alike must make serious decisions on the battlefield. 96 These decisions may require balancing military goals with the safety of those involved. 97 In such situations, Congress recognized that it does not want the military to exercise great caution at a time when bold and imaginative measures might be necessary to overcome enemy forces. 98 This policy extends to contractors as well. For example, when a contractor on the battlefield is producing and transporting weaponry to military personnel, the government s interest in arming soldiers speedily may override the risk of imperfect workmanship. 99 However, if there is a potential for tort liability, the contractor may behave more cautiously despite the military s preference for expedited performance Summer 2013 / Journal of Contract Management

5 The second purpose of tort liability is to punish the tortfeasor. 101 This punitive purpose arises from the belief that a tortfeasor should suffer for causing harm. 102 However, this belief does not readily translate to the battlefield. War inevitably produces casualties. 103 Although unfortunate, these [c]asualties are contemplated prior to war and judged to be a necessary consequence of the decision to go to war. 104 Courts should not punish military personnel and contractors on the battlefield who are working to promote American principles and preserve their own lives for resulting injuries to a member of the enemy military or civilian population. 105 Lastly, tort law traditionally is used to make innocent victims whole. 106 War gives rise to a countless number of undeserving victims, including some due to negligence and intentional violence. 107 Against this backdrop, it is difficult to reconcile why certain victims should be compensated and others not, based on how or why the victim suffered harm. 108 The principle that [t]here can be no difference in compensation for those that die in war applies even when the alleged tortfeasor is a contractor. 109 When a deliberate choice has been made to tolerate tragedy for some higher purpose, 110 courts should respect that choice and bar tort claims that otherwise interfere with the federal government s wartime efforts. Subjecting Contractors on the Battlefield to Tort Liability Infringes on Important Federal Interests Permitting tort claims against contractors on the battlefield is also improper because it infringes on important federal interests. Although there is minimal legislative history regarding the combatant activities exception of the FTCA, it may be safely concluded that the exception relates to governmental activities which by their very nature should be free from the hindrance of a possible damage suit. 111 Specifically, the federal government has an interest in eliminating tort law from the battlefield to preserve the separation of powers 112 as well as to promote military effectiveness and efficiency. 113 By adopting the battlefield preemption doctrine, courts can ensure that these significant federal interests remain intact and conflicting state tort law is displaced. 114 First, permitting tort claims against contractors on the battlefield violates the separation of powers by enmeshing courts in wartime matters. 115 Military judgments are reserved for the executive branch, 116 and courts should not question sensitive military decisions. The Supreme Court memorialized this sentiment in Boyle, 117 and since then various federal courts have referenced this principle as well. 118 As stated by the D.C. Circuit in Saleh: The federal government s interest in preventing military policy from being subjected to fifty-one separate sovereigns (and that is only counting the American sovereigns) is not only broad it is obvious. 119 Furthermore, courts are not in a position to adequately evaluate actions taken on the battlefield to achieve military objectives. 120 Judges simply lack the requisite expertise to, for instance, develop a standard of care for a reasonably safe infantry assault on a fortified enemy outpost. 121 Permitting tort litigation will only result in extensive judicial probing of the government s wartime policies 122 in a manner that may be both arbitrary as well as inconsistent with foreign policy interests set forth by the politically accountable branches. 123 Second, the effectiveness of the military is compromised when contractors on the battlefield are subject to potential tort liability. The military promotes instinctive obedience to the orders of commanders to ensure that all military objectives are effectively carried out. 124 If tort claims are permitted against contractors on the battlefield, the dutiful deference given to commanders may be disrupted out of fear of liability. 125 Similarly, the fear of liability may distract contractors on the battlefield from the mission at hand. When a contractor on the battlefield is trusted to make sensitive judgments involving military goals, 126 apprehension may interfere with the contractor s commitment to military commands and compromise the mission s effectiveness. 127 Permitting tort claims against contractors on the battlefield also undermines the cost-effectiveness of wartime efforts. Contractors play a critical role in the federal government s military affairs. 128 But companies that consider working with the federal government must first weigh the risks and benefits associated with government contracting. 129 Litigating tort claims may have very costly consequences for a potential contractor. 130 Not only are trials lengthy and expensive endeavors, but the possibility of excessive damages and the uncertainties of the litigation process may justifiably deter contractors from pursuing government work in the first instance. 131 Further, the contractors that do ultimately decide to bid on a government contract may inflate their contract prices to compensate for any potential tort liability. 132 In either instance, the federal government is disadvantaged because the costs associated with potential tort liability are ultimately passed through to the procuring agency. 133 Lastly, the efficiency of American wartime operations is sacrificed when military personnel and contractors on the battlefield are entangled in lengthy and complex litigation. 134 As the Supreme Court noted, extensive discovery is a Journal of Contract Management / Summer

6 distraction of officials from their governmental duties. 135 Compelling depositions regarding military commands and foreign policy matters will impair military operations, 136 and demanding discovery will cause soldiers and contractors alike to focus on collecting data from the battlefield rather than the mission at hand. 137 At trial, if soldiers and contractors are forced to testify against one another, the unity of the force may even be sacrificed. 138 The secrecy of wartime matters will also be compromised by subjecting military affairs to judicial scrutiny. 139 Tort claims against contractors on the battlefield are likely to reveal highly sensitive military information 140 and may jeopardize the nation s security altogether. Statutory and Contractual Means of Promoting Accountability among Contractors on the Battlefield This article proposes that all courts adopt the battlefield preemption doctrine because tort law, in toto, is an inappropriate subject for injection into the area of military engagements. 141 Both statutory and contractual remedies promote contractor accountability while preserving the federal government s interest in wartime matters. 142 The Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act Two primary statutes govern both the military as well as contractors: the Uniform Code of Military Justice (UCMJ) 143 and the Military Extraterritorial Jurisdiction Act (MEJA). 144 Although the UCMJ is primarily used to discipline military personnel, it also applies to contractors on the battlefield under certain circumstances. 145 Originally, civilian contractors were only subject to UCMJ jurisdiction during a time of war. 146 Subsequent to the enactment of the John Warner National Defense Authorization Act for Fiscal Year 2007, 147 the UCMJ now applies [i]n time of declared war or a contingency operation to persons serving with or accompanying an armed force in the field. 148 In March 2008, after this statutory expansion, the Department of Defense (DOD) issued a memorandum authorizing military commanders to investigate, apprehend, arrest, and temporarily detain any contractor if there is probable cause that the contractor has committed an offense covered by the UCMJ. 149 Contractors prosecuted under the UCMJ are brought before a military justice system, which deploys with the military because of the UCMJ s worldwide reach. 150 The military justice system generally parallels the traditional U.S. justice system, except that the laws and procedures are specifically designed to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States. 151 These are important policy principles that traditional courts cannot adequately contemplate in tort litigation. Alongside the UCMJ, contractors may also be held accountable for wrongful behavior under MEJA. Originally, MEJA applied only to a narrow set of individuals, 152 but Congress has since expanded the scope to include all contractors and subcontractors of DOD or any other federal agency, so long as the contractor s work relates to DOD s mission overseas. 153 Under MEJA, DOD or the Department of State retains the discretion to investigate any potential violations and determines when to refer cases for potential prosecution. 154 Unlike the victims of a contractor s alleged tort, these agencies are in a better position to determine if a violation has occurred, and can properly evaluate how to proceed in light of relevant foreign policy considerations. According to then Assistant Attorney General Lanny A. Breuer, a number of DOD contractors, as well as non-dod contractors, whose work is related to supporting the mission of [DOD] overseas, have been prosecuted under MEJA. 155 Remedies Available Under Government Contract Law The UCMJ and MEJA provide statutory means to prosecute a contractor for alleged wrongdoing. However, the government may also exercise control over contractors through the very contracts that govern their relationship. 156 As stated by Judge Wilkinson in his dissenting opinion in Al Shimari, [t]ort suits place the oversight of military operations in an unelected judiciary, [whereas] contract law [places this oversight] in a politically accountable executive. 157 Contract law is an inherently precise mechanism, in that the parties can directly manipulate the terms of their agreement. 158 While tort law permits courts to impose a malleable standard of care, contract law enables the federal government to incorporate specific terms regarding contractor accountability into the language of the contract. 159 This allows for a politically accountable branch to delineate the boundaries of appropriate behavior on the battlefield, in accordance with the government s policy ideals. 160 The fundamental rights and responsibilities of a government contractor, as well as the mission essential services, are typically specified in the contract s statement of work and various terms and conditions. 161 Upon drafting the contract, the federal government may include clauses requiring that the contractor comply with military rules and manuals, or standards set forth by military commanders. 162 Additionally, the government may incorporate theater commander orders, 92 Summer 2013 / Journal of Contract Management

7 directives, and standard procedures that relate to personal safety, unit cohesion, and mission accomplishment. 163 Such provisions would require contractor employees to abide by all orders issued by a military commander. 164 The commander would retain the authority to penalize an employee that disobeys an order, and the contracting officer could even mandate removal of the employee altogether. 165 The contract may also set forth performance benchmarks, which could be used to measure the contractor s compliance with the contract terms. 166 Through more rigorous agency monitoring, 167 or even mandatory self-evaluation, 168 the government can readily scrutinize the contractor s performance in this manner. 169 Should the contractor fail to comply with the terms of the contract, the government may hold the contractor accountable through various contractual remedies. Pursuant to the Federal Acquisition Regulation (FAR), the government may terminate a contract for default if a contractor fails to perform under the contract. 170 Following a default termination, the contractor may be held liable for any excess costs associated with procuring a replacement contractor. 171 The termination for default also remains on the contractor s past performance record and may bear on the contractor s evaluation for future procurements. 172 In certain instances, suspension or debarment may also be an appropriate measure to ensure that a contractor is maintaining acceptable standards of behavior. 173 The FAR provides that criminal behavior in connection with a government contract is cause for both suspension and debarment 174 and further provides for debarment if a contractor exhibits a history of unsatisfactory performance. 175 The severity of this consequence barring the contractor from conducting business with the federal government 176 renders the threat of suspension and debarment a viable deterrent for improper behavior. 177 Taken together, remedies available under government contract law address disciplinary concerns while granting the government discretion to hold contractors accountable without compromising wartime efforts. 178 Conclusion The torture and abuse alleged by Iraqi citizens detained in the Abu Ghraib military prison have raised a number of important concerns regarding government contractor accountability. As stated by Judge Wilkinson in his dissenting opinion in Al Shimari: Americans of good will were sickened by [the Abu Ghraib photographs of torture and abuse that inspired the Al-Quraishi and Al Shimari litigation] and the depraved conduct that would be reprehensible whenever, wherever, and against whomever it was applied. But acknowledging 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. 179 Disciplining contractors on the battlefield for their wrongdoings may well be a necessary practice, but tort liability is not the appropriate mechanism for achieving contractor accountability. The principles underlying tort law are largely inapplicable on the battlefield, and important federal interests in the separation of powers, as well as military effectiveness and efficiency, are compromised when courts interfere with wartime matters. By adopting the battlefield preemption doctrine, as articulated by the D.C. Circuit in Saleh, and extending the principles underlying the FTCA s combatant activities exception to contractors on the battlefield, courts can remove tort liability from an arena where it does not belong. JCM Endnotes 1. Al Shimari v. CACI Int l, Inc., 679 F.3d 205, 209 (4th Cir. 2012) (en banc). 2. Ibid. 3. Ibid., at Ibid. 5. See ibid., at 225 (Wilkinson, J., dissenting) ( This case requires us to decide whether the contractors who assist our military on the battlefield will be held accountable through tort. ) 6. See ibid., at See ibid. 8. See ibid. ( Tort suits place the oversight of military operations in an unelected judiciary. [A]rrogating power to the [judiciary] in a contest over military authority is the wrong call under our Constitution. ) F.3d 1 (D.C. Cir. 2009). 10. Ibid., at 5, U.S.C. 2680(j) (2006). The FTCA is codified at 28 U.S.C (2006). 12. Saleh, 580 F.3d, at 9. Journal of Contract Management / Summer

8 13. See Al Shimari, 679 F.3d, at (Wilkinson, J., dissenting). 14. This article uses the phrase contractors on the battlefield to refer to all contractors that are integrated into combatant activities over which the military retains command authority (Saleh, 580 F.3d, at 9), and thereby fall within the parameters of the battlefield preemption doctrine as set forth by the D.C. Circuit in Saleh v. Titan Corp U.S. 500 (1988). 16. See, e.g., Koohi v. United States, 976 F.3d 1328 (9th Cir. 1992); and Bentzlin v. Hughes Aircraft Co., 833 F. Supp (C.D. Cal. 1993). 17. See Saleh, 580 F.3d, at See Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983) ( The United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity. ). 19. Legislative Reorganization Act of 1946, Pub. L , 401, 60 Stat. 812, 842 (codified as amended in scattered sections of 28 U.S.C.) U.S.C (2006). 21. Ibid. 22. Ibid., at Ibid., at 2680(a). 24. See United States v. Varig Airlines, 467 U.S. 797, 814 (1984) U.S.C. 2680(j). 26. Ibid. 27. See Johnson v. United States, 170 F.2d 767, 769 (9th Cir. 1948). Upon drafting this exception, Congress did not define important terms such as arising out of, combatant activities, or during time of war. (See Andrew Finkelman, Suing the Hired Guns: An Analysis of Two Federal Defenses to Tort Lawsuits Against Military Contractors, Brooklyn Journal of International Law 34 (2009): ) Courts have generally construed these terms broadly. (See ibid.; see also Johnson, 170 F.2d, at 770 (expanding the definition of combatant activities to include actions that are directly connected to actual hostilities); and Koohi v. United States, 976 F.2d 1328, 1334 (9th Cir. 1992) (noting that significant armed conflict is sufficient to meet the during time of war requirement).) 28. See 28 U.S.C. 2674, Boyle v. United Techs. Corp., 487 U.S. 500, 502 (1988). 30. Ibid. United Technologies Corp. worked side-by-side with the U.S. Navy to prepare specifications for the helicopters. (Boyle v. United Techs. Corp., 792 F.2d 413, 414 (4th Cir. 1986).) United Technologies helicopter design, including the mock-up for the emergency escape hatch, was approved by the Navy. (Ibid.) 31. Boyle, 487 U.S., at Ibid., at Boyle, 792 F.2d, at Ibid. Even if the suit was permitted to proceed, the court found that Boyle had failed to present sufficient evidence under state tort law. (Ibid.) 35. Boyle, 487 U.S., at Ibid., at Ibid. 38. Ibid. (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981)) (internal quotation marks omitted). 39. Ibid., at Ibid., at (citing 28 U.S.C. 1346(b) (1988)). 41. Ibid., at Ibid., at Ibid. 44. Ibid. (citing United States v. Varig Airlines, 467 U.S. 797, 814 (1984)). 45. Ibid., at See ibid., at Ibid. ( Either way, the interests of the United States will be directly affected. ). 48. Ibid., at Ibid., at 512, In Koohi v. United States, for example, the U.S. Court of Appeals for the Ninth Circuit held that, even though the alleged tortfeasors were government contractors, the plaintiff s action against the contractors was preempted. (976 F.2d 1328, 1336 (9th Cir. 1992).) This is because imposing liability on the contractors would compromise Congress intent upon enacting the combatant activities exception. (Ibid., at ) Similarly, in Bentzlin v. Hughes Aircraft Co., the U.S. District Court for the Central District of California held that [t]he combatant activities exception generates a federal common law defense which immunizes manufacturers from state tort suits arising from war. (833 F. Supp. 1486, 1492 (C.D. Cal. 1993).) According to the court, tort suits would frustrate the federal interest in ensuring the secrecy of wartime military decision-making and pose a significant practical problem of accumulating and retaining evidence. (Ibid., at ) 51. See, e.g., Koohi, 976 F.2d, at 1336 (citing Boyle, 487 U.S., at 511); Bentzlin, 833 F. Supp. at 1489 ( The rationale upon which the Boyle Court fashioned a federal common law defense against design defect claims supports preemption of plaintiffs tort suit on both high-tech and combat preemption grounds. ); and Saleh v. Titan Corp., 580 F.3d 1, 5 (D.C. Cir. 2009) ( We agree with the defendants that plaintiffs common law tort claims are controlled by Boyle. ). 52. See, e.g., Koohi, 976 F.2d, at 1336 ( [T]he Supreme Court has recognized that the exceptions to the FTCA may preempt common law tort actions against defense contractors under certain circumstances. (citing Boyle, 487 U.S., at 511)). 53. See note 51 and accompanying text. 54. Saleh, 580 F.3d, at Summer 2013 / Journal of Contract Management

9 55. Ibid., at Ibid. One of the plaintiffs further alleged that the contractors conspired with military personnel in the abuse. (Ibid.) 57. Ibrahim v. Titan Corp., 556 F. Supp. 2d 1, 4 (D.D.C. 2007) (emphasis added), aff d in part, rev d in part sub nom. Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009). 58. Ibid., at See ibid. 60. Ibid. 61. Ibid. 62. Ibid. 63. Saleh v. Titan Corp., 580 F.3d 1, 8-9 (D.C. Cir. 2009). 64. See ibid., at See ibid., at Ibid. 67. See ibid. 68. Ibid. 69. Ibid. 70. Ibid., at F.3d 201 (4th Cir. 2011) F.3d 413 (4th Cir. 2011). 73. Al Shimari v. CACI Int l, Inc., 679 F.3d 205, 212 (4th Cir. 2012) (en banc). 74. Al Shimari, 658 F.3d, at 415. The facts alleged in both Al-Shimari and Al-Quraishi were, for purposes of the issues [presented to the Fourth Circuit], the same. (Al-Quraishi, 657 F.3d at 202.) 75. Al Shimari, 658 F.3d, at 416. It appears that some of these alleged abuses were approved by the military, but others were not. (Ibid.) 76. See ibid., at Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir. 2009). 78. Al Shimari, 658 F.3d, at 420 (emphasis added) (citing Saleh, 580 F.3d, at 9). 79. See ibid. 80. Al Shimari v. CACI Int l, Inc., 679 F.3d 205, 212 (4th Cir. 2012) (en banc). Al-Quraishi and Al Shimari were consolidated on appeal. (Ibid.) 81. Ibid. 82. Ibid., at 213 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)) (internal quotation marks omitted). 83. Ibid., at 214 (citing Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988)). 84. Ibid., at Ibid., at 224. According to the majority, immunity stems from a statute or constitutional provision that explicitly guarantees that a trial will not proceed. (Ibid., at 217 (quoting Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989)).) But the majority failed to address the fact that the battlefield preemption doctrine stems from a statute: the combatant activities exception of the FTCA. (See 28 U.S.C. 2680(j) (2006).) 86. See Al Shimari, 679 F.3d, at 225 (Wilkinson, J., dissenting). 87. Ibid., at Courts have broadly interpreted the during time of war element of the FTCA s combatant activities. Specifically, war need not be declared in order to trigger the exception. (Morrison v. United States, 316 F. Supp. 78, 79 (M.D. Ga. 1970) ( [A] war is no less a war because it is undeclared. ).) [S]ignificant armed conflict is sufficient. (Koohi v. United States, 976 F.2d 1328, 1334 (9th Cir. 1992).) Therefore, significant armed conflict including armed conflict during contingency operations should likewise be sufficient to trigger the battlefield preemption doctrine. 89. See Saleh v. Titan Corp., 580 F.3d 1, 9 (D.C. Cir. 2009). This article further asserts that preemption should be limited to instances where the contractor was acting within the scope of its contract. Although the D.C. Circuit in Saleh did not expressly incorporate this limitation, the court did recognize that the battlefield preemption doctrine should be carefully tailored so as to coincide with the bounds of the federal interest being protected. (Ibid., at 8.) Congress defined these bounds when it enacted an amendment to the FTCA, namely the Westfall Act. (Pub. L , 102 Stat (1988).) The Westfall Act was enacted after the Supreme Court held that government officials would not be immune from tort liability unless the conduct in question was within the outer perimeter of an official s duties. (Westfall v. Erwin, 484 U.S. 292, 300 (1988).) Similarly, the Westfall Act requires that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose. (28 U.S.C. 2679(d); see also 28 U.S.C (defining [a]cting within the scope of his office or employment for a member of the military or naval forces or a member of the National Guard, as acting in [the] line of duty. ).) A government employee who acts within the bounds of his or her employment remains immune from tort liability under the FTCA. (See Westfall, 484 U.S., at 295.) However, that immunity does not extend to behavior beyond those bounds. Because the battlefield preemption doctrine stems directly from the FTCA s combatant activities exception (see Saleh, 580 F.3d, at 6), courts should limit its application in the same manner. 90. See Koohi, 976 F.2d, at 1334 (citing Oliver Wendall Holmes, Jr., The Common Law (M.D. Howe ed., 1963): 31 33; and Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (1970)). 91. Ibid., at 1335 (citing Restatement (Second) of Torts 901 (1965)). 92. Ibid. (citing Restatement (Second) of Torts 901 (1965)). 93. Saleh, 580 F.3d, at Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1493 (C.D. Cal. 1993). Journal of Contract Management / Summer

10 95. See ibid. 96. See Koohi, 976 F.2d, at See Boyle v. United Techs. Corp., 487 U.S. 500, 511 (1988) (noting that evaluating contractor liability would entail the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness ); see also John J. Michels, Jr., The Government Contractor Defense: The Limits of Immunity After Boyle, Air Force Law Review 33 (1990): 147, 150 ( To single out safety of operations as the dominant factor for holding a contractor liable would be to introduce into the governmental procurement decision a false shift in relative importance of the many factors a military [equipment] designer must consider. ). 98. Bentzlin, 833 F. Supp., at 1493 (quoting Koohi, 976 F.2d, at ). 99. Ibid Ibid Koohi, 976 F.2d, at Ibid Ibid Bentzlin, 833 F. Supp., at See Koohi, 976 F.2d, at See ibid Ibid Ibid Bentzlin, 833 F. Supp., at 1494 (holding that, even though the victim died as a result of a manufacturing defect, the tort claim against the contractor was barred) Ibid Johnson v. United States, 170 F.2d 767, 769 (9th Cir. 1948) See Boyle v. United Techs. Corp., 487 U.S. 500, 511 (1988) ( [P]ermitting second-guessing of these [military] judgments through state tort suits against contractors would produce the same effect sought to be avoided by the FTCA exemption. ) See Saleh v. Titan Corp., 580 F.3d 1, 8 (D.C. Cir. 2009) (discussing the impact of tort litigation on military flexibility and cost-effectiveness ) See Boyle, 487 U.S., at 504. State law tort claims must be displaced when there is a significant conflict between the federal interest or policy and the state law, or where applying the state law would frustrate specific [federal] objectives. (Ibid., at 507 (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966); and United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979)) (internal quotation marks omitted).) 115. See Harry A. Austin, Case Comment, Boyle v. United Technologies Corporation: A Questionable Expansion of the Government Contract Defense, Georgia Law Review 23: 227, 234 (discussing the separation of powers doctrine and noting that [c]ontrol of the military is primarily an executive function; judicial evaluation of military decisions is therefore inappropriate ); and Michels, note 97, at 151 (noting that by permitting courts to impose tort liability on military equipment contractors, the courts would move into an area where they not only have little knowledge or experience but no constitutional business as well ) See U.S. Const. art. II, 2, cl. 1 (naming the president the commander-in-chief of the armed forces) Boyle, 487 U.S., at See, e.g., Saleh, 580 F.3d, at Ibid. (emphasis in original) See Aktepe v. United States, 105 F.3d 1400, 1404 (11th Cir. 1997). As stated by the Supreme Court in Gilligan v. Morgan: [I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex[,] subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the legislative and executive branches. (413 U.S. 1, 10 (1973).). See also Michels, note 97, at 151 (stating that the judicial branch is particularly unsuited to evaluate military officials decision-making) McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1350 (11th Cir. 2007) (citing Chappell v. Wallace, 462 U.S. 296, 302 (1983)) (further noting that [w]here sensitive military judgments are involved, courts lack the capacity to determine the proper tradeoff between military effectiveness and the risk of harm to the soldiers ) Saleh, 580 F.3d, at As stated by Judge Wilkinson, if tort claims are permitted: Courts must henceforth set the standards of care in matters of wartime captures, detentions, and interrogations, as well as the measure of damages for the same. Not only that, but methods of interrogation and procurement of intelligence will be at the sufferance of a single judicial officer, safely ensconced in a secure courtroom, passing judgment on battlefield conduct thousands of miles away. (Al Shimari v. CACI Int l, Inc., 679 F.3d 205, 238 (4th Cir. 2012) (en banc) (Wilkinson, J., dissenting).) 124. Goldman v. Weinberger, 475 U.S. 503, 507 (1986) See United States v. Brown, 348 U.S. 110, 112 (1954), in which the Supreme Court noted: The peculiar and special relationship of the soldier to his superiors, the effect of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the [Federal] Tort Claims Act were allowed. These concerns also extend to contractors on the battlefield because even tangential intrusions into military decision-making may pose a threat to military discipline. (Finkelman, note 27, at 457.) 126. See Boyle v. United Techs. Corp., 487 U.S. 500, 511 (1988) See, e.g., Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1493 (C.D. Cal. 1993) (noting that the federal interest in expedience may be compromised in the face of tort liability) See Al Shimari, 679 F.3d, at 229, (Wilkinson, J., dissenting); Lane v. Halliburton, 529 F.3d 548, 96 Summer 2013 / Journal of Contract Management

11 554 (5th Cir. 2008) ( [T]he military finds the use of civilian contractors in support roles to be an essential component of a successful war-time mission. ); and Lisa L. Turner and Lynn G. Norton, Civilians at the Tip of the Spear, Air Force Law Review 51 (2001): 1, 7, 8 (noting the rapid and significant growth of [Department of Defense] dependence on contractor support, which is only expected to grow in the twenty-first century ) See Al Shimari, 679 F.3d, at 229 (Wilkinson, J., dissenting) See ibid. In Al-Quraishi v. Nakhla, the U.S. District Court for the District of Maryland applied the lex loci delicti rule to address choice of law. (728 F. Supp. 2d 702, 761 (D. Md. 2010).) This rule provides that the substantive rights of the parties involved are determined by the law of the jurisdiction in which the alleged tort occurred. (Ibid.) Because the alleged torts took place while the plaintiffs were detained in Iraq, the court held that Iraqi tort law would be applied to their claims. (Ibid., at ) While subjecting contractors to potential tort liability may discourage contracting with the U.S. government generally, this impact is only intensified when international law may apply. When corporations contemplate bidding on a federal contract, they first contemplate any potential liabilities. (Al Shimari, 679 F.3d, at 229 (Wilkinson, J., dissenting).) The mere possibility of defending a lawsuit every time a foreign citizen claims a violation of foreign tort law might substantially alter the profitability of government contracts, even more so than the threat of liability under domestic tort laws. (Ibid.) It is also worth noting the impracticability of a U.S. court applying international tort law. The Maryland District Court in Al-Quraishi had to defer judgment on basic questions of law, including whether aiding and abetting as well as conspiracy are even recognized causes of action under Iraqi law, even though the parties had submitted affidavits from Iraqi law experts to inform the court s review. (Al-Quraishi, 728 F. Supp. 2d, at 764; see also Al Shimari, 679 F.3d, at 229 (Wilkinson, J., dissenting).) 131. See Al Shimari, 679 F.3d, at (Wilkinson, J., dissenting) ( [F]orcing contractors to undertake a highly complex and deeply uncertain legal analysis before aiding our military operations [would] jeopardize the military s ability to employ contractors in the future. ); and Michels, note 97, at 152 (stating that fewer contractors would bid on government work if they are faced with potential liability, and that contractors would not bid as aggressively because it would be more difficult to assess the costs of performing) See Boyle v. United Techs. Corp., 487 U.S. 500, 507 (1988); and Michels, note 97, at 152 ( That [the government s] costs would rise as a result of liability seems axiomatic. Contractors would be expected to raise prices either to establish a war chest of funds to pay judgments, or to pay for liability insurance against lawsuits. ) See Boyle, 487 U.S., at 507. Recently, the Supreme Court expressed this sentiment in Filarsky v. Delia when it stated: Sometimes private individuals will work in close coordination with public employees, and face threatened legal action for the same conduct. Because government employees will often be protected from suit by some form of immunity, those working alongside them could be left holding the bag facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same activity. Under such circumstances, any private individual with a choice might think twice before accepting a government assignment. (132 S. Ct. 1657, 1666 (2012) (citations omitted).) 134. See Saleh v. Titan Corp., 580 F.3d 1, 8 (D.C. Cir. 2009); and Al Shimari, 679 F.3d, at 246 (Wilkinson, J., dissenting) (noting that litigation would divert [the soldiers ] efforts and attention from the military offensive abroad to the legal defensive at home. (quoting Johnson v. Eisentrager, 339 U.S. 763, 779 (1950)) Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982) See United States v. Stanley, 483 U.S. 669, (1987) See Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1495 (C.D. Cal. 1993) Ibid See Al Shimari, 679 F.3d, at 242, (Wilkinson, J., dissenting). The government may assert the state secrets privilege, a common law evidentiary rule, which would permit the government to withhold certain evidence if its disclosure would harm national security. (See United States v. Reynolds, 345 U.S. 1, 6 8 (1953).) However, this privilege is not to be lightly invoked. (Ibid., at 7.) The privilege must be asserted by the head of the agency department, after personal consideration. (Ibid., at 7 8.) Then the court must evaluate whether granting the privilege is appropriate, given the circumstances. (Ibid., at 8.) 140. Finkelman, note 27, at Such information includes interrogation tactics, military operational orders, and secret counterterrorism activities. (Ibid., at 456.) 141. Koohi v. United States, 976 F.2d 1328, 1335 (9th Cir. 1992). Notably, Congress has declined to enact any civil cause of action that plaintiffs can employ against contractors. (Saleh v. Titan Corp., 580 F.3d 1, 13 n.9 (D.C. Cir. 2009).) 142. See Bentzlin, 833 F. Supp., at 1494 (noting that the government is far better suited to hold contractors accountable for wrongful behavior through the threat of bringing criminal suits against contractors whose misconduct is egregious or through the threat of terminating business relationships ). While the effectiveness of these statutory and contractual mechanisms are a topic of debate, this article simply seeks to establish that these approaches are available alternatives to tort litigation U.S.C (2006) U.S.C (2006) U.S.C. 802(a)(10); see also Memorandum from Sec y of Def. to Sec ys of the Military Dep ts, Chairman of the Joint Chiefs of Staff, Under Sec ys of Def., & Commander of the Combatant Commands, UCMJ Jurisdiction Over DOD Civilian Employees, DoD Contractor Personnel, and Other Persons Serving With or Accompanying the Armed Forces Overseas During Declared War and in Contingency Operations (March 10, 2008) (hereinafter Memorandum from Sec y of Def., UCMJ Jurisdiction ) U.S.C. 802(a)(10) (2000) Pub. L , 120 Stat (2006) U.S.C. 802(a)(10) (2006); see John Warner National Defense Authorization Act for Fiscal Year 2007, 552 Journal of Contract Management / Summer