Public Contract Law Journal

Amending the Government Contractor Defense: A Legislative Solution to Protect the Intelligence Contractors Taking the Fall for Controversial U.S.Government Policies

by Victoria Muth

Victoria Muth (vfmuth@law.gwu.edu) is a third-year J.D. candidate at The George Washington University Law School. She wishes to thank Professor Joshua Schwartz, Judge Jeri Somers, and Bryan Byrd for their guidance during the Note-writing process.

I.  Introduction

Suleiman Abdullah Salim, a Tanzanian citizen, alleged that in March 2003 the Central Intelligence Agency (CIA) and Kenyan security forces captured him in Somalia and rendered him to Kenya on suspicions of terrorist activity.1 From Kenya, Salim claims he was moved to different CIA detention facilities throughout Afghanistan and subjected to enhanced interrogation techniques.2 Salim remained in CIA custody for five years until August 2008 — at which point, he was released and given a Department of Defense (DoD) memorandum informing him that he was “determined to pose no threat to the United States Armed Forces or its interests in Afghanistan.”3 Along with two other individuals claiming the CIA illegally rendered and tortured them, Salim brought action in the U.S. District Court for the Eastern District of Washington against two CIA contracted psychologists hired to develop interrogation techniques for use on terrorist suspects.4

The plaintiffs alleged that these interrogation techniques amounted to torture.5 The techniques allegedly included solitary confinement; extreme darkness, cold, and noise; repeated beatings of detainees; starvation; stress positions; sleep deprivation; confinement; and water boarding.6 This action was brought under the Alien Tort Statute (ATS)7 — a statute allowing aliens to sue in U.S. courts for torts arising out of conduct amounting to a violation of international law — alleging that defendant psychologists were liable because they “conspired with the CIA” to violate international law.8 The court has allowed the complaint to proceed past two motions to dismiss and seems likely to reach a trial on the merits.9

Salim v. Mitchell is indicative of a broader trend. When the U.S. government is shielded from liability for certain actions abroad under its status as a sovereign, an alien plaintiff ’s only option to have his or her day in court is to file suit against the government’s contractors; therefore, contractors that are executing the will and policies of the U.S. government have become “a convenient punching bag” for those who wish to challenge controversial U.S. intelligence policies, such as the CIA’s interrogation program.10 These contractors currently lack any effective defense. While the Supreme Court created a federal common law government contractor defense (GCD) in its case Boyle v. United Technologies,11 this defense has been applied only to preempt state tort law, not federal statutes like the ATS, and is highly fact specific and thus, likely to fail in ATS cases.12

This Note seeks to propose a solution to the problem exemplified in Salim. The solution intends to provide intelligence contractors with a defense when performing a service they would not otherwise be performing if not for the government’s request. Part II will discuss a general background of intelligence contracting. Part III will discuss the background of the current GCD and history of the ATS. Lastly, Part IV will propose a new defense for certain intelligence contractors.

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