Victoria Muth (firstname.lastname@example.org) 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.
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.
II. Intelligence Contracting
Contractors have never before played such a crucial role for the intelligence community, and as such, it is critical to protect these contractors from liability when necessary to avoid unnecessarily risk adversity when performing their jobs.13 Historically, the role of military contractors has been to provide logistical support,14 but in the wake of 9/11, the use of contractors in both the military and intelligence communities grew exponentially.15 Intelligence contracting has since become such a large, complex system that no one knows “how many people it employs, how many programs exist within it or exactly how many agencies do the same work.”16 In 2006, seventy percent of the intelligence budget was spent on contracts,17 and as of 2008, intelligence contracting was estimated to be a market worth almost $50 billion a year.18 Subsequently in 2010, approximately 1,271 government organizations and 1,931 private companies worked on programs related to counter- terrorism, homeland security, and intelligence, in approximately 10,000 locations throughout the United States.19 Retired Admiral Dennis Blair, the former U.S. Director of National Intelligence, noted the attitudes of some toward intelligence contract spending: “After 9/11, when we decided to attack violent extremism, we did as we so often do in this country. The attitude was, if it’s worth doing, it’s probably worth overdoing.”20
Some tasks outsourced by the intelligence community in recent years include: overseeing spy networks out of embassies, conducting intelligence collection and analysis, participating in covert operations, analyzing intelligence collected from unmanned aerial vehicles, supplying software programs, providing security services, drafting budgets, and conducting the interrogation of prisoners.21 Perhaps one of the more controversial roles contractors have taken is that of the private interrogator, working at facilities such as those in Abu Ghraib, Afghanistan, and Guantanamo Bay, Cuba, where contractors have played a central role in carrying out the CIA’s coercive interrogation methods.22 For example, at some of the CIA facilities detaining terrorist suspects, allegations of contractor abuses have included use of techniques similar to those described by plaintiffs in Salim.23
These numbers indicate that the practice of hiring contractors to fulfill military and intelligence roles will not decline in the near future.24 Although combat operations in Iraq and Afghanistan have mostly ceased, “commentators have noted that contractors will continue to be vital to future military efforts.”25 As such, it has become critical for Congress to address the trend of foreign plaintiffs suing military and intelligence contractors for alleged wrongdoing when plaintiffs cannot sue the U.S. government. One commentator aptly described the issue: “Contractors are especially attractive magnets for suits mounted by anti-war activists or entrepreneurial attorneys, because contractors are a convenient punching bag for the press or Congress who attack them to indirectly challenge U.S. security policies.”26 This observation is illustrative of a need for an effective defense for contractors faced with this situation.
III. The Government Contractor Defense & the Alien Tort Statute
A. History of the Government Contractor Defense
1. Preemption Under the Federal Tort Claims Act
As a sovereign, the United States enjoys immunity from civil liability.27 However, in the Federal Tort Claims Act (FTCA), the United States has waived its immunity for certain tort claims.28 Despite waiving federal government immunity for certain claims, the FTCA defines a number of exceptions to civil liability where the United States retains its sovereign immunity.29 These exceptions include: claims arising from a government employee performing a “discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused;”30 “any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war;”31 and “any claim arising in a foreign country.”32 A “discretionary function” is one involving the “government’s policy-making activities,”33 not including unlawful activity, and is limited to lawful discretionary acts.34 To the extent that suits against the government or its contractors under state tort law are incompatible with the policy of the FTCA, the FTCA preempts the state tort law.35 These principles form the basis of the current GCD for state tort suits. The Supreme Court first articulated this defense in Boyle v. United Technologies Corporation, as discussed below.36
2. Boyle v. United Technologies Corporation
When plaintiffs sue government contractors for remedies — due to the federal government’s immunity37 — the Supreme Court has looked to the exceptions outlined in the FTCA to protect contractors from this liability.38 The Court, in Boyle v. United Technologies Corp., established a common law defense for certain state tort actions brought against federal government contractors.39 This case involved a representative of David Boyle, a Marine helicopter pilot killed when his helicopter crashed during a training exercise.40 While Boyle survived the impact of the crash, he drowned after being unable to escape from the helicopter.41 Boyle’s father brought suit on his son’s behalf against Sikorsky, the company contracted by the United States to build the helicopter.42 The question before the Supreme Court was “when [can] a contractor providing military equipment to the Federal Government . . . be held liable under state tort law for injury caused by a design defect.”43 In answering this question, the Court established a defense available to government contractors to preempt state tort law claims brought in an effort to hold contractors liable for military equipment defects,44 because imposing such liability would significantly contradict federal policy.45 What has since been dubbed the “government contractor defense” applies when there is a “unique federal interest” at stake — “if [the] authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing [the government’s] will.”46
In federal procurement contracts, such as those of military equipment, the “uniquely federal interest” at stake for the government is the risk that contractors would simply raise their prices to mitigate the potential cost of liability in third party tort actions.47 Raised contract prices would, in effect, pass the cost of liability back to the government.48 Such a result would undermine the policy behind the FTCA retaining the government’s sovereign immunity from tort liability in instances where the government exercises a discretionary function.49 The Court, therefore, found it appropriate to preempt state tort law actions in cases that would conflict with this federal interest.50 Limiting the application of a GCD preempting state tort law, the Court explained “[d]isplacement [of state law] will occur only where . . . a significant conflict exists between an identifiable federal policy or interest and the operation of state law, or application of state law would frustrate specific objectives of federal legislation.”51
The Court relied on the discretionary function exception of the FTCA in crafting this new common law defense because Congress did not authorize damages for causes of action in tort where government employees exercised a discretionary function under this exception.52 Selection of military equipment design is a discretionary function because “[i]t often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness.”53 Judicial second-guessing of military decisions in contracting for certain equipment would undermine the policy of the FTCA by causing the same effect the FTCA sought to avoid — passing the contractors’ financial burden back to the government.54
The Court proposed a three factor test to determine where the GCD would apply: (1) whether the United States approved reasonably precise specifications (indicating it does not matter who initiated the design), (2) whether the contractor followed the specifications, and (3) whether the contractor warned the United States about the dangers of the equipment’s use known to the contractor but not known to the United States.55 These first two elements ensure that a civil claim falls within the government’s discretionary function and the government was able to make an informed discretionary decision.56 However, since Boyle, the lower courts have struggled to define the scope of the GCD.
3. The GCD After Boyle
Lower courts have been inconsistently applying the GCD.57 For example, in Hudgens v. Bell Helicopters/ Textron, the Court expanded the GCD so it would be available to government contractors whose liability resulted from performance contracts, not just procurement contracts.58 In Hudgens, a helicopter’s fin detached from the aircraft and injured two Army pilots, resulting in a crash.59 An investigation revealed that the malfunction occurred as a result of a crack that formed near the base of the fin.60 The two pilots brought suit claiming that DynCorp, the company responsible for maintenance and repairs on the aircraft, was negligent under state law for failing to make the necessary repairs.61 DynCorp raised the GCD.62
Extending the GCD to service contracts, the Eleventh Circuit stated in Hudgens that “[a]lthough Boyle referred specifically to procurement contracts, the analysis it requires is not designed to promote all-or-nothing rules regarding different classes of contract. Rather, the question is whether subjecting a contractor to liability under state tort law would create a significant conflict with a unique federal interest.”63 The performance of a maintenance contract in this case required the government to exercise discretion similar to that required in procurement contracts, as the Supreme Court found in Boyle.64 Therefore, the Eleventh Circuit adopted the same three-factor test in Boyle to evaluate whether the state tort claims should be preempted in a case involving a service contract.65
The GCD was further expanded in Bentzlin v. Hughes Aircraft Co.66 This case diverged from Boyle in two key ways. First, the district court recognized a defense based on the combatant activities exception of the FTCA as opposed to the discretionary function exception, as was used in Boyle and Hudgens.67 Second, instead of adopting a defense based on the three factors articulated in Boyle, the court in Bentzlin adopted a defense based on whether imposing liability on military contractors would serve the three primary purposes of tort liability, which will be detailed below.68 In Bentzlin, six Marines died in combat near the border of Kuwait and Saudi Arabia during Operation Desert Storm.69 The Marines were riding in a vehicle toward enemy forces when a U.S. missile missed its target and hit their vehicle.70 The family members of the Marines brought suit against Hughes Aircraft Co., the manufacturer of the missile, on state tort law grounds alleging that a manufacturing defect was responsible for causing the missile to miss its intended target.71
The court first held that the Boyle defense should be extended to suits arising from the FTCA’s “combatant activities” exception and should not be exclusively limited to instances implicating the government’s discretionary function.72 There was a uniquely federal interest implicated in this case because the missile at issue was a technically sophisticated weapon with no civilian counterpart and manufactured solely for use in combat.73 Therefore, the court found that subjecting contractors to state tort law would undermine the government’s unique federal interest in obtaining and using this type of weapon because contractors would presumably be compelled to disclose the design and capability of weaponry during discovery.74 Limiting its holding to combat equipment with no civilian counterpart, the court argued:
If a particular [civilian] truck possessed unique military features whose disclosure would harm national security, the government could assert state secrets privilege over those aspects of the truck for which the design is unique to the military, barring discovery. A suit which implicated the design of such aspects of the product may be dismissed after the privilege has been asserted.75
The court found strong support for extending the GCD because the missile was “a clear example of a suit which must be barred on the pleadings even without assertion of privilege since no aspect of a missile’s design may ever be disclosed,”76 and “[t]he disclosure of the extent to which the government knowingly accepts tradeoffs between [products’ risks and costs] cannot be a legitimate concern of civil discovery.”77 Additional justification for extending the defense included the government’s granting of security clearances to contracted workers, indicating the government’s involvement in the manufacture of the weaponry.78 When the government involves itself in the manufacturing process through the security clearance procedure, state tort suits would additionally interfere with discretionary decisions made by the government.79
In its second holding, the Bentzlin court looked to the three primary purposes of tort liability to justify applying a version of the GCD to the contractors, as opposed to evaluating the three specific factors that the Supreme Court outlined in Boyle.80 The first purpose of tort liability is to make tortfeasors more careful.81 This purpose would not be served by extending liability to contractors in this case because the government should not want the military to “exercise great caution at a time when bold and imaginative measures might be necessary to overcome enemy forces.”82
A second purpose of tort liability is to punish tortfeasors.83 By creating the combatant activities exception to the FTCA, Congress determined that the government should not be punished for mistakes made during war.84 This policy applies to contractors as well as government employees because the United States is in the best position to monitor wrongful conduct of contractors through either contract termination or criminal prosecution.85 The United States is also in the best position to monitor contractors because civilians are not in the business of buying war missiles, and contractors depend on their on- going business relationship with the United States for economic development — creating an incentive for contractors to comply with U.S. instructions.86 A third purpose of tort liability is to provide a remedy to victims.87 However, the court found that by imposing state tort liability on the involved military contractors this policy also was not served because there should be no compensation for those who die in war.88
Because none of the three purposes of tort liability would be served by imposing liability in this case, the court ultimately held that state tort suits should be preempted when they arise from combat actions.89 Such suits would “frustrate the federal interest in ensuring the secrecy of wartime military decision making due to the causation issues that arise... .”90
This holding could have numerous implications on intelligence contractors facing tort liability. Like the Bentzlin court’s hesitation to impose liability on military contractors that manufacture combat equipment out of fear of stifling creative and innovative measures, courts should likewise hesitate before imposing liability on intelligence contractors who must perform equally dangerous yet “bold and imaginative” tasks when the government hires them to do so.91 A plaintiff wishing to bring suit against an intelligence contractor should also, arguably, have the ability to prove that any alleged harm was the direct cause of the contractor, not the result of either poor U.S. policy judgement or the United States deliberately using risky methods of intelligence collecting despite potential costs.92 Additionally, because the U.S. government must grant intelligence contractors security clearances before they may begin work, the United States is involved in the projects it hires contractors to perform.93 Therefore, any state tort suits brought against intelligence contractors could similarly interfere with the federal government’s discretionary decisions.
B. History of the ATS
The ATS provides in relevant part: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”94 This statute confers jurisdiction on federal district courts to hear such claims; however, the statute does not create a cause of action.95 International law or treaty law, not U.S. tort law, recognizes these causes of action an alien may bring in federal district courts.96 In recent decades, aliens have used the ATS as a human rights tool when they, or relatives, have been injured or killed by contractor personnel in order to obtain monetary compensation for alleged violations of international law.97 In order to properly state a claim for an actionable violation of international law, it has been held that “plaintiffs must allege violations of international law norms that (i) are universally recognized, (ii) have specific definition and content, and (iii) are binding and enforceable, rather than merely aspirational.”98 In other words, a plaintiff ’s claim under the ATS must be for a violation of “precise conduct that would constitute violation of an enforceable rule.”99
The ATS was virtually ignored until the 1980s, but between 1995 and 2012, 154 cases were filed against U.S. corporations under the statute.100 Expressing hesitation in imposing ATS liability, the Supreme Court in Sosa v. Alvarez-Machain advised lower courts to engage in “vigilant doorkeeping” when determining ATS claims.101 The Supreme Court thought that lower courts should exercise restraint in “importing international norms (if such exist) into American law in the absence of explicit legislative authorization or guidance.”102 Therefore, if Congress has not provided courts with a “mandate to seek out and define new and debatable violations of the law of nations,”103 courts should hesitate before finding an ATS claim not based on one of the originally recognized violations of the law of nations that the statute first contemplated in 1789.104 Lower courts must remain mindful of the Supreme Court’s warning to engage in “vigilant doorkeeping” before deciding to allow an ATS claim to proceed based on a potentially new and undefined violation of international law.105
Further limiting the applicability of the ATS, the Supreme Court recently decided Kiobel v. Royal Dutch Petroleum, a landmark case holding that alien tort claims must “touch and concern the territory of the United States, [and] they must do so with sufficient force to displace the presumption against extraterritorial application [of a statute].”106 Kiobel, a human rights case, involved plaintiffs who alleged that foreign Nigerian oil companies were working with local governments in Nigeria to exert economic influence.107 The oil companies allegedly did so by aiding and abetting the Nigerian government in committing human rights violations against a local indigenous population.108 Nigerian nationals residing within the United States then sued the oil companies involved in the alleged abuses under the ATS, raising the issue before the Supreme Court whether, and to what extent, the ATS could apply extraterritorially.109
While the Court did not explain exactly what its “touch and concern” standard meant, Justice Alito, joined by Justice Thomas, argued in a concurrence that the tortious action must take place within the United States,110 which would narrow the statute’s applicability considerably. Justices Alito and Thomas would further restrict the majority’s “touch and concern” standard to when the conduct at issue is “the ‘focus’ of congressional concern” under the ATS — which would appear to limit the application of the ATS to the three principle offenses Congress had in mind when it enacted the statute in 1789.111 Such offenses would include only the “violation of safe conducts, infringement of the rights of ambassadors, and piracy,” and other offenses of similar “definiteness and acceptance among civilized nations.”112
The reasoning behind Justice Alito’s concurrence has influenced lower courts, which have applied the new “touch and concern” standard.113 At the time the Supreme Court handed down the Kiobel decision, seventy percent of the forty pending ATS suits in lower courts throughout the country were dismissed on extraterritoriality grounds.114 Kiobel effectively prevented “foreign-cubed” cases, where “foreign plaintiffs sue foreign defendants for torts committed in a foreign country,” but the effect of the decision on cases where the corporation or contractor being sued is established in the United States, or where some of the alleged conduct occurred in the United States, is less clear.115 This has resulted in a circuit split as to how the presumption against extraterritoriality and the “touch and concern” standard applies.116 The primary contention and division among the lower courts has been whether “significant contacts with the United States are sufficient to trigger ATS jurisdiction or whether the violation of the ‘law of nations’ that is the subject matter of the ATS must itself take place within the United States.”117
The Fourth Circuit is one such circuit that has grappled with the “touch and concern” standard. In the Al Shimari v. CACI Premier Technologies, Inc. saga, the Fourth Circuit has addressed what the proper applicability of the ATS is in the human rights context.118 Al Shimari involves Iraqi nationals previously detained at Abu Ghraib who brought suit against CACI, a private military contractor that conducted interrogations at the prison.119 The plaintiffs alleged that the contractors committed torture and war crimes in violation of the ATS through the cruel, inhuman, and degrading treatment of detainees; assault and battery; sexual assault; and intentional infliction of emotional distress.120 Relying on Kiobel, the district court dismissed the ATS claims because the conduct occurred exclusively in Iraq and thus, did not sufficiently “touch and concern” the United States.121 The Fourth Circuit on appeal in Al Shimari III interpreted Kiobel to not automatically bar all torts occurring in a foreign country but rather that all factual connections to the United States must be considered when evaluating whether a claim touches and concerns the United States with sufficient force.122
Five distinct factors were considered to decide whether the presumption against extraterritorial application was displaced.123 Such factors included: (1) CACI’s status as a U.S. corporation; (2) the U.S. citizenship of CACI em- ployees, whose conduct formed the basis of the plaintiffs’ ATS claims; (3) the fact that CACI’s contract to perform interrogation services was issued in the United States by the U.S. government; (4) the U.S. government issued CACI employees security clearances; and (5) CACI managers, located in the United States, gave approval for the acts committed by CACI employees.124 “To date, this is the only case post-Kiobel in which a court has found a sufficient U.S. nexus to permit ATS claims to proceed against a U.S. company on the merits.”125 The case was then remanded back to the district court to decide the ATS claims on the merits.126
Al Shimari has numerous implications for ATS claims brought against intelligence contractors, such as in the instance of Salim v. Mitchell.127 The Fourth Circuit’s decision in Al Shimari III will have an impact for intelligence contractors defending themselves in ATS litigation because it will likely not be sufficient to simply argue that since the alleged misconduct occurred in another country, ATS claims should be dismissed. For contractors like the psychologists in Salim v. Mitchell, if factors such as the U.S. citizenship of the contractors, security clearances issued by the U.S. government, and a contract issued by the U.S. government in the United States are present, then future courts may find that misconduct abroad sufficiently touches and concerns the United States such that the presumption against extraterritorial application may be displaced. It is yet to be seen how the Fourth Circuit will rule on the merits for the ATS claims against CACI should the district court’s decision on remand from Al Shimari III be appealed.
A defense akin to the GCD should be available in ATS cases brought against intelligence contractors. The ATS presents a threat to national security128 by imposing potential liability on intelligence contractors who must not be risk adverse when carrying out the duties for which the U.S. government hires them to complete. This trend towards increased use of the ATS will likely continue in the future due to the increase in the government’s dependence on contractors in the defense and intelligence communities.129 The GCD, as it is currently being applied by the courts, is insufficient to protect intelligence contractors from ATS claims.130 The best solution is for Congress to adopt a measure to protect contractors in intelligence and military operations by enacting legislation akin to the current GCD, using a hybrid theory of the discretionary function exception and combatant activities exception from the FTCA, as discussed below.
A. Implications of Allowing the ATS to Apply to Intelligence Contractors
The implication of allowing contractors to be sued under the ATS for their role in programs such as extraordinary rendition and enhanced interrogation that the “War on Terror” is, in effect, put on trial.131 After 9/11, the threats posed by non-state actors changed the way the United States articulated its national security strategy: “The struggle against global terrorism is different from any other war in our history. It will be fought on many fronts against a particularly elusive enemy over an extended period of time.”132 If plaintiffs can now bring suit against government contractors for actions and policies for which the government will not itself be liable, this could likely have the same consequence that the Supreme Court feared in Boyle: the cost of litigation will be passed back to the government because contractors will need to raise their costs as a form of liability insurance.133 Allowing such litigation also raises the concern present in Koohi that contractors will act in a risk adverse manner when doing their jobs.134 Another concern includes a constitutional issue of having a federal judge question the competence of the President as Commander-in-Chief and the competence of the Executive as the primary organ of foreign affairs.135 By allowing private litigants to bring suit against defense and intelligence contractors, unintended consequences could include a future lack of cooperation from U.S. allies and loss of U.S. prestige.136
Furthermore, one circuit has provided some guidance, based on Boyle’s precedent, on how courts in the future may rule on ATS cases against federal contractors. The Fourth Circuit initially held in Al Shimari I — a decision since vacated on other grounds—that the plaintiffs’ ATS claims against CACI were preempted under Boyle because their claims were initially held to have implicated a uniquely federal interest.137 Liability of contractors would “affect the availability and costs of using contract workers in conjunction with military operations,” and thus, the implicated federal interest was the potential shortage of military personnel available to conduct interrogations of detainees at Abu Ghraib.138 Similar to the district court’s reasoning in Bentzlin, the Fourth Circuit in Al Shimari I believed the combatant activ- ities exception found in the FTCA formed the basis to preempt ATS claims, as opposed to the discretionary function exception which formed the basis of the GCD in Boyle:139
Congress intended the [combatant activities] exception to ‘eliminat[e] . . . tort from the battlefield, both to preempt state or foreign regulation of federal wartime conduct and to free military commanders from the doubts and uncertainty inherent in potential subjection to civil suit.’ . . . [W]here a civilian contractor is integrated into wartime combatant activities over which the military broadly retains command authority, tort claims arising out of the contractors’ engagement in such activities are preempted.140
However, Al Shimari I was later vacated and dismissed.141
The Fourth Circuit’s reasoning in Al Shimari I nonetheless sheds some light on how future cases against intelligence contractors may be resolved.142 Although the decision was vacated on other grounds, the Fourth Circuit’s analysis is persuasive and informative to future courts because it applied Boyle to protect contractors performing controversial services for the government from liability.143 The difficulty for intelligence contractors who may face ATS litigation will be that they may not be able to make the same argument as the Fourth Circuit based on the combatant activities exception of the FTCA because many times, intelligence contracts are not being carried out in the theater of war.144 Such was the case in Salim v. Mitchell.145 So while a Boyle defense may in limited circumstances be successful, the defense will have to be modified so that it does not depend on the presence of combatant activity.
B. The Difficulty of Applying the Current GCD to Cases Such as Salim v. Mitchell
The GCD — as currently articulated and applied in the lower courts — will have very little effect defending intelligence contractors facing ATS suits because the test is highly fact specific. For example, in a case like Salim v. Mitchell, the current GCD would almost surely fail because the government contracted psychologists to design the interrogation program with broad discretion, and therefore, there were no “reasonably precise specifications” as required under the current Boyle test. For this reason, a court would likely find that a GCD would not be available.146 The test is also limited to a pre- emption of state tort law, so it is unclear how it could apply to ATS claims. Lastly, intelligence contractors, such as those in Salim v. Mitchell, would likely not benefit from a version of the GCD that is premised on the combatant activities exception of the FTCA because intelligence contracts are often not carried out in active combat zones.147
C. Solution: Legislation Modifying the Current Judicially Created GCD
Congress must modify the GCD to provide intelligence contractors with a defense when they carry out programs or policies of the federal government. A new defense should not be exclusively available to preempt state tort law — as is the case with the current judicially created rule — but rather give contractors limited immunity from suits brought under the ATS in in- stances where the conduct giving rise to the cause of action is a result of the contractor simply “executing [the] will” of the government.148 By enacting new legislation, Congress can also clarify for federal courts the confusion regarding the underlying policy of the defense and the extent to which it can be applied.
Legislation is imperative because intelligence contractors are often hired to perform a service that contractors in their private capacity would not otherwise perform without the government’s request for such services. For example, psychologists would not likely, on their own initiative and in their private capacity, create an interrogation program, if not for the government’s request for such a program. A special defense must be available for instances in which intelligence contractors face an ATS lawsuit for the very services the government contracted them to provide, in which, they assist the government in implementing a controversial program.149
Part of the policy rationale behind a new GCD statute should consider the principle of derivative sovereign immunity. For example, in In re KBR, Inc. Burn Pit Litigation,150 the Fourth Circuit found “that private employees can perform the same functions as government employees and . . . they should receive immunity from suit when they perform these functions.”151 Furthermore, the Fourth Circuit held that it is necessary to protect contractors from suit when acting within the scope of validly conferred authority to prevent “unwarranted timidity.”152 The policy underlying qualified immunity is to “avoid ‘unwarranted timidity’ in performance of public duties, ensuring that talented candidates are not deterred from public service, and preventing harmful distractions from carrying out the work of government that can often accompany damages suits.”153 Congress must keep this policy in mind when crafting a new defense available to intelligence contractors.
The new statutory defense should also diverge from Boyle’s three factor test because it is too fact specific to be helpful to intelligence contractors given broad discretion in carrying out controversial U.S. policies. Instead, the new statutory defense should adopt the following standard dismissing an ATS suit: (1) the conduct giving rise to the suit implicates a uniquely federal interest, meaning there is no commercial alternative or counterpart for such conduct; (2) imposing liability would not serve the traditional rationales for tort law, including (a) making a tortfeasor more careful, (b) punishing tortfeasors, and (c) providing a victim with a remedy; and (3) imposing liability would in effect put U.S. defense policy on trial.
The first factor would ensure that the lawsuit’s activity in question would not have been an activity that the defendant contractor would be engaged in but for the government’s instructions. When this is the case, ATS suits brought against intelligence contractors could be dismissed for the same policy reasons underlying the derivative sovereign immunity doctrine. The second factor would ensure that traditional rationales for imposing tort liability are, in fact, served by allowing a case to proceed on the merits. The last factor would ensure that plaintiffs are required to show that there is a direct cause between the contractor’s conduct — acting outside the scope of the government contract — and the alleged harm and that the cause was not the United States making a poor policy judgment or deliberately using risky methods of intelligence collecting.
While the current GCD would not protect the defendant psychologists in Salim v. Mitchell for the reasons previously explained, this new statutory defense would provide greater protection to intelligence contractors facing ATS litigation. Applying the proposed factors to Salim illustrates how this test will provide greater protection:
(1) The psychologists’ conduct giving rise to the cause of action implicated a uniquely federal interest because there was no commercial alternative or counterpart for such conduct. As mentioned above, psychologists do not generally on their own accord develop interrogation programs. If it were not for the government’s desire to implement such a program, the psychologists in this case would likely not have engaged in this conduct.
(2) The traditional rationales of imposing tort liability are not served by holding the psychologists liable. Imposing tort liability would not make contractors such as the psychologists “more careful” because they are implementing the program at the will of the government. It would be poor policy to attempt to make such contractors more “careful” during a time of conflict when innovation is needed. Also, it would not be productive to punish intelligence contractors for implementing programs, such as the interrogation program, because as the court noted in Bentzlin, the executive branch is in the best position to monitor the conduct of intelligence contractors through either termination or criminal prosecution.154 The executive branch is also in the best position to monitor contractor behavior due to the foreign policy implications in implementing controversial intelligence pro- grams and because there is often no commercial counterpart for such programs.155 Furthermore, while tort liability would provide victims with a monetary remedy, Congress has already indicated that the United States owes no duty of care to its enemies.156
(3) Lastly, to hold the psychologist contractors liable would, in effect, put U.S. executive branch policy on trial. This is unacceptable because it would result in judicial second-guessing of national security decisions implicating foreign policy and diplomatic concerns. Such review is barred by the political question doctrine.157
This proposed standard, enforced via congressional statute, is desirable for several reasons. First, a statute that is passed via the full bicameral process is less controversial than the traditional GCD because a congressional statute would not raise concerns of federalism and judicial activism. Second, courts lack the requisite expertise in foreign affairs and intelligence operations, and thus, deference should be given to the intelligence community similar to the deference courts have given to the military for similar cases against government contractors arising out of military operations.158 Third, there are other remedies available to plaintiffs besides damages resulting from a civil action, leaving tort suits unwarranted in the interest of protecting national security.159
Foreclosing a civil cause of action does not mean that potential plaintiffs do not have other remedies available to them. One remedy instead of civil damages could be compensation from the executive branch. For example, the executive branch has access to the classified information that is likely to be involved in tort suits against intelligence contractors, which could foreclose the option of judicial compensation to plaintiffs.160 If this is the case, the executive branch and intelligence community could determine whether a plaintiff ’s claim has merit and decide to provide a monetary remedy. Another remedy could be for Congress to set up an investigative committee, which it has done to assess prior CIA actions,161 and could enact additional legislation to change the behavior of the intelligence community in the future.162
When the government is shielded from liability for certain actions abroad, plaintiffs’ only option to have their day in court is to file suit against the government’s contractors; therefore, contractors who are executing the will and policies of the government have become “a convenient punching bag” for those who wish to challenge controversial U.S. intelligence policies.163 Civil liability for contractors is not the answer in these situations because in most cases, it would cause contractors to either pass the cost back to the government by raising the price of the contract or to act in a risk adverse manner when carrying out the will of the government. The appropriate remedy is for Congress to adopt a modified government contractor defense to preempt ATS actions to protect intelligence contractors who, when acting within the scope of their employment are performing a service that they would not otherwise be performing but for the government’s request for such services, assist the government in implementing controversial programs.
- Complaint & Demand for Jury Trial ¶ 9, Salim v. Mitchell, No. 2:15-CV-286-JLQ (E.D. Wash. Oct. 13, 2015).
- Salim v. Mitchell, 183 F. Supp. 3d 1121, 1123 (E.D. Wash. 2016).
- Complaint & Demand for Jury Trial, supra note 1, ¶ 2.
- Id. ¶ 3.
- Id. ¶ 14.
- Id. ¶ 17.
- Emma Kohse, Salim v. Mitchell: ATS Suit Against CIA Contractors Survives Motion to Dismiss, LAWFARE (Feb. 3, 2017, 10:30 AM), https://www.lawfareblog.com/salim-v-mitchell-ats-suit-against-cia-contractors-survives-second-motion-dismiss [https://perma.cc/XA98-JBVD].
- Mark E. Rosen, The Alien Tort Statute: An Emerging Threat to National Security, 16 ST. THOMAS L. REV. 627, 653 (2004).
- Boyle v. United Techs. Corp., 487 U.S. 500, 512–13 (1988).
- Id. at 507.
- See Dana Priest & William M. Arkin, National Security Inc., WASH. POST ( July 20, 2010, 12:24 AM), http://projects.washingtonpost.com/top-secret-america/articles/national-security-inc/ [https://perma.cc/62BR-PK8J] (describing the crucial role contractors have in government operations).
- Kristine Huskey & Scott Sullivan, United States: Law and Policy Governing Private Military Contractors After 9/11, in MULTILEVEL REGULATION OF MILITARY AND SECURITY CONTRACTORS: THE INTERPLAY BETWEEN INTERNATIONAL, EUROPEAN AND DOMESTIC NORMS 331, 337 (Christine Bakker & Mirko Sossai eds., 2012).
- Dana Priest & William M. Arkin, A Hidden World, Growing Beyond Control, WASH. POST ( July 19, 2010), http://projects.washingtonpost.com/top-secret-america/articles/a-hidden-world-growing-beyond-control/ [https://perma.cc/Z82B-QD87]; see also TIM SHORROCK, SPIES FOR HIRE: THE SECRET WORLD OF INTELLIGENCE OUTSOURCING 35 (2008).
- Priest & Arkin, supra note 15.
- SHORROCK, supra note 15, at 13.
- Id. at 12.
- Priest & Arkin, supra note 15.
- SHORROCK, supra note 15, at 12.
- Id. at 15.
- See, e.g., Complaint & Demand for Jury Trial, supra note 1, ¶ 3.
- See Priest & Arkin, supra note 15 (describing the government as dependent on contractors and explaining that replacing contractors with government personnel is not a process that will produce quick results).
- RODNEY M. PERRY, CONG. RESEARCH SERV., R43462, TORT SUITS AGAINST FEDERAL CONTRACTORS: SELECTED LEGAL ISSUES 1 (2014) [hereinafter TORT SUITS AGAINST FEDERAL CONTRACTORS].
- Rosen, supra note 10, at 653.
- TORT SUITS AGAINST FEDERAL CONTRACTORS, supra note 25, at 2.
- 28 U.S.C. § 2674 (2012) (stating the United States is liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or punitive damages”).
- 28 U.S.C. § 2680 (2012).
- 28 U.S.C. § 2680(a).
- 28 U.S.C. § 2680(j).
- 28 U.S.C. § 2680(k).
- TORT SUITS AGAINST FEDERAL CONTRACTORS, supra note 25, at 18.
- Al Shimari v. CACI Premier Tech., Inc. (Al Shimari IV), 840 F.3d 147, 159 (4th Cir. 2016).
- TORT SUITS AGAINST FEDERAL CONTRACTORS, supra note 25, at 3 (citing U.S. CONST. art. VI, cl. 2).
- Boyle v. United Techs. Corp., 487 U.S. 500, 512–13 (1988).
- See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073–74 (9th Cir. 2010) (noting that plaintiffs sued Jeppesen, a government contractor, for its alleged involvement in providing the CIA with flight and logistical support services to implement a CIA extraordinary rendition program; plaintiffs presumably brought suit against the contractor because the CIA was immune from suit).
- Boyle, 487 U.S. at 511 (relying on the discretionary function exception of the FTCA to preempt state tort liability).
- Id. at 512–13.
- Id. at 502.
- Id. at 507.
- Id. at 511–12.
- Id. at 506 (citing Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 20–21 (1940)).
- Id. at 507 (stating “either the contractor will decline to manufacture the design specified by the Government, or it will raise its price”).
- Id. at 511–12.
- Id. at 512 (“To put the point different: it makes little sense 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. In sum, we are of the view that state law which holds Government contractors liable for design defects in military equipment does in some circumstances present a ‘significant conflict’ with federal policy and must be displaced.”).
- Id. at 507 (internal citations and quotations omitted).
- Id. at 511.
- Id. at 512.
- TORT SUITS AGAINST FEDERAL CONTRACTORS, supra note 25, at 6 (noting that because the Boyle Court only immunized contractors from state tort liability for design defects in governmentselected equipment, lower courts have been unclear with the scope of the Boyle government contractor defense, including whether it protects contractors from manufacturing defect claims, whether the FTCA’s combatant activities exception may be extended to contractors, and whether the defense applies to service contracts).
- Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1334 (11th Cir. 2003).
- Id. at 1330.
- Id. at 1331.
- Id. at 1332.
- Id. at 1334.
- Id. at 1333.
- Id.; see also TORT SUITS AGAINST FEDERAL CONTRACTORS, supra note 25, at 7.
- Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486 (C.D. Cal. 1993).
- Id. at 1492.
- Id. at 1493–94.
- Id. at 1487.
- Id. at 1489.
- Id. at 1490.
- Id. (describing how state tort claims would require plaintiffs to prove proximate causation, “which necessitates the disclosure of a product’s design”).
- Id. at 1491.
- Id. at 1492.
- Id. at 1491.
- Id. at 1493.
- Id. (citing Koohi v. United States, 976 F.2d 1328, 1334–45 (9th Cir. 1992)).
- Bentzlin, 833 F. Supp. at 1493.
- Id. at 1493–94; see also Koohi, 976 F.2d at 1335 (while discussing the possibility of imposing liability on military contractors for mistakenly shooting down an Iranian civilian plane during a time of hostilities, the court stated that “[i]t is unlikely that there are many Americans who would favor punishing our servicemen for injuring members of the enemy military or civilian population as a result of actions taken in order to preserve their own lives and limbs”).
- Bentzlin, 833 F. Supp. at 1494.
- Id.; see also Koohi, 976 F.2d at 1335 (stating that it does not make sense to give compensation to a few victims during a time of war on the basis that the harm suffered was due to the alleged negligence of U.S. military forces or contractors because of the “overwhelming and pervasive violence which each side intentionally inflicts on the other”).
- Bentzlin, 833 F. Supp. at 1494.
- Id. at 1494–95.
- Id. at 1493 (citing Koohi, 976 F.2d at 1334–35) (describing Congress’s intent when enacting the combatant activities exception was to not stifle the military from taking “bold and imaginative measures” to overcome enemy forces).
- See, e.g., Koohi, 976 F.2d at 1335 (holding that a deliberate executive decision to engage in a particular program or to engage in particular encounters with other sovereigns is a uniquely federal interest).
- See Bentzlin, 833 F. Supp. at 1492 (stating that tort suits against government contractors responsible for manufacturing military weapons would undermine the FTCA’s discretionary function exception because the government is involved in the manufacture of such weapons through the security clearance procedure).
- Alien Tort Statute, 28 U.S.C. § 1350 (2012).
- See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 713 (2004).
- See Filartiga v. Pena-Irala, 630 F.2d 876, 888 (2d Cir. 1980) (holding that to bring a successful ATS claim, an alien must prove either a treaty violation or a violation of customary international law); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995) (holding that an ATS claim is permitted when three criteria are met: (1) an alien, (2) brings a cause of action for an alleged tort, (3) committed in violation of the law of nations or a U.S. treaty).
- Huskey & Sullivan, supra note 14, at 363.
- In re Xe Servs. Alien Tort Litig., 665 F. Supp. 2d 569, 582 (E.D. Va. 2009).
- Id. at 579.
- Siddhartha Mahanta, Suing Companies for Atrocities Has Never Been Harder. Thanks, Supreme Court!, FOREIGN POL’Y (Nov. 19, 2014), http://foreignpolicy.com/2014/11/19/suing-companies-for-atrocities-has-never-been-harder-thanks-supreme-court/ [https://perma.cc/5G42-N7DL].
- Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004).
- In re Xe Servs. Alien Tort Litig., 665 F. Supp. 2d at 579 (emphasis added).
- Sosa, 542 U.S. at 728.
- See Thomas H. Lee, The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations, 89 NOTRE DAME L. REV. 1645, 1646 (2014) (explaining that the original function of the ATS was to provide a civil remedy for tort or property damage committed by Americans against aliens which, if not redressed, would have been attributable to the U.S. under international law and the U.S. would thus be in violation of the contemporaneous rule of general implied safe conduct).
- Sosa, 542 U.S. at 792.
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).
- Id. at 1662.
- Id. at 1663.
- Id. at 1670.
- See John B. Bellinger III & R. Reeves Anderson, U.S. Chamber Inst. for Legal Reform, As Kiobel Turns Two: How the Supreme Court is Leaving the Details to Lower Courts 4 (Aug. 11, 2015).
- Id. at 1.
- See John Bellinger, In Spate of New ATS Decisions, Courts Are Divided About Meaning of Kiobel’s “Touch and Concern” Standard, LAWFARE (Sept. 28, 2014), https://www.lawfareblog.com/spate-new-ats-decisions-courts-are-divided-about-meaning-kiobels-touch-and-concern-standard [https://perma.cc/QE26-8PNZ]. Compare, e.g., Mujica v. Airscan, Inc., 771 F.3d 580, 594 (9th Cir. 2014) (holding that U.S. residency or citizenship of the defendant is not enough to “touch and concern” with sufficient force to displace the presumption of extraterritoriality), and Baloco v. Drummond Co., 767 F.3d 1129, 1237–38 (11th Cir. 2014) (holding that a plaintiff ’s claim must be focused within the U.S. to displace the presumption against extraterritoriality), with Doe v. Exxon Mobil Corp., 69 F. Supp. 3d 75, 95 (D.D.C. 2014) (interpreting Kiobel to require a combination of domestic conduct and an American defendant).
- BELLINGER & ANDERSON, supra note 113, at 1–2.
- Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 151 (4th Cir. 2016).
- Al Shimari v. CACI Int’l, Inc., 951 F. Supp. 2d 857, 874 (E.D. Va. 2013), vacated sub nom. Al Shimari v. CACI Premier Tech., Inc. (Al Shimari III), 758 F.3d 516 (4th Cir. 2014).
- Al Shimari III, 758 F.3d at 528.
- Id. at 528–29.
- BELLINGER & ANDERSON, supra note 113, at 16.
- Al Shimari III, 758 F.3d at 537.
- See discussion supra Part I.
- See generally Rosen, supra note 10 (describing the ATS as a threat to national security).
- See, e.g., Priest & Arkin, supra note 15 (describing the government as dependent on contractors and explaining that replacing contractors with government personnel is not a process that will produce quick results).
- See, e.g., Anthony J. Sebok, A Bid to Litigate the Legality of U.S.-Sponsored Torture in Federal Court: Will It Succeed?, FINDLAW ( June 5, 2007), http://writ.news.findlaw.com/sebok/20070605.html [https://perma.cc/MY57-MGQ9]; Rosen, supra note 10, at 663–64, 666.
- See Sebok, supra note 130.
- White House, The National Security Strategy of the United States of America 5 (2002).
- Boyle v. United Techs. Corp., 487 U.S. 500, 507 (1988).
- See Koohi v. United States, 976 F.2d 1328, 1334–45 (9th Cir. 1992).
- Rosen, supra note 10, at 654; see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
- Rosen, supra note 10, at 654.
- Al Shimari v. CACI Int’l, Inc. (Al Shimari I), 658 F.3d 413, 415, 417 (4th Cir. 2011), vacated, 679 F.3d 205 (4th Cir. 2012) (en banc).
- Al Shimari I, 658 F.3d at 418.
- Id. at 419.
- Id. at 419–20 (citing Saleh v. Titan Corp., 580 F.3d 1, 7 (D.C. Cir. 2009)).
- Al Shimari v. CACI Int’l, Inc. (Al Shimari II), 679 F.3d 205, 223–24 (4th Cir. 2012) (en banc).
- Al Shimari I, 658 F.3d at 418–19.
- See, e.g., Salim v. Mitchell, 183 F. Supp. 3d 1121, 1123–25 (E.D. Wash. 2016).
- See, e.g., In re Katrina Canal Breaches Litig., 620 F.3d 455, 465 (5th Cir. 2010) (holding that a government contractor defense should only apply when the specifications pertaining to a particular design feature at issue are reasonably precise).
- See, e.g., Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1490 (C.D. Cal. 1993) (extending the GCD to design defect claims of military equipment used on the battlefield for which there is no civilian counterpart); Al Shimari I, 658 F.3d at 418 (extending the GCD to contractor performing duties in a military prison in Afghanistan).
- In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 342 (4th Cir. 2014) (citing Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21–22 (1940)).
- See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 n.6 (2001) (“[w]here the government has directed a contractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense”).
- In re KBR, Inc., Burn Pit Litig., 744 F.3d at 331, 341–42, 342 n.6 (citations omitted). Here, contractors were hired by the government to perform certain services in Iraq and Afghanistan and the plaintiffs alleged that they were harmed as a result of the contractors’ waste disposal and water treatment practices. Id. at 331. The plaintiffs sought remedies under state tort law and KBR, one of the involved contractors, asked the court for immunity, rather than preemption, as was done under the Supreme Court’s holding in Boyle). Id. at 341–42, 342 n.6 (citations omitted).
- Id. at 344.
- Id.; see also Filarsky v. Delia, 132 S. Ct. 1657, 1666 (2012) (stating that contractors who work alongside the government should not be left “holding the bag—facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same activity”).
- Filarsky, 132 S. Ct. at 1665.
- Bentzlin v. Hughes Aircraft Co., 833 F. Supp. 1486, 1493 (C.D. Cal. 1993).
- Id. at 1493–94; see also Koohi v. United States, 976 F.2d 1328, 1335 (9th Cir. 1992).
- Koohi, 976 F.2d at 1337 (discussing the policy underlying the combatant activities exception to the FTCA and noting that the U.S. owes no duty of care to enemies, and contractors should likely not face liability for tort claims because this would “create a duty of care where the combatant activities exception is intended to ensure that none exists”).
- See Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that judicial review is limited where: (1) there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) there is “a lack of judicially manageable standards for resolving [a case]”; (3) the case is impossible to decide “without an initial policy determination of a kind clearly for nonjudicial discretion”; (4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”; (5) “an unusual need for unquestioning adherence to a political decision already made”; and (6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question”).
- See, e.g., Koohi, 976 F.2d at 1332 (noting that if plaintiffs had sought injunctive relief as opposed to damages for injuries suffered, the court would be required to “engage in the type of operational decision-making beyond [its] competence”).
- See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1091 (9th Cir. 2010).
- Id. at 1092.
- Rosen, supra note 10, at 653.