Vаcated and remanded by published opinion. Judge KEENAN wrote the opinion, in which Judge FLOYD and Judge COGBURN joined.
In this appeal, we consider whether a federal district court has subject matter jurisdiction to consider certain civil claims seeking damages against an American corporation for the torture and mistreatment of foreign nationals at the Abu Ghraib prison in Iraq.
1
The primary issue on appeal concerns whether the Alien Tort Statute, 28 U.S.C. § 1350, as interpreted by the Supreme Court in
Kiobel v. Royal Dutch Petroleum Co.,
— U.S. -,
We conclude that the Supreme Court’s decision in
Kiobel
does not foreclose the plaintiffs’ claims under the Alien Tort Statute, and that the district court erred in reaching a contrary conclusion. Upon applying the fact-based inquiry articulated by the Supreme Court in
Kiobel,
we hold that the plaintiffs’ claims “touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritorial application of the Alien Tort Statute.
See Kiobel,
I.
In 2003, a multi-national force led by the United States and the United Kingdom invaded Iraq and deposed its sovereign leader, Saddam Hussein. The United States took control of Abu Ghraib, the site of a prison facility near Baghdad, and used the prison to detain various individuals, including criminals, enemies of the provisional government, and other persons selected for interrogation because they were thought to possess information regarding Iraqi insurgents.
Due to a shortage of trained military interrogators, the United States hired civilian contractors to interrogate detainees at Abu Ghraib. During the time period relevant to this civil action, those private interrogators were provided exclusively by CACI Premier Technology, Inc. (CACI), a corporation domiciled in the United States. CACI’s corporate headquarters is located in Virginia, and CACI is a wholly-owned subsidiary of CACI International, Inc. (CACI International), a publicly traded Delaware corporation that also has corporate headquarters in Virginia.
According to an official investigation commissioned by the United States Department of Defense (Defense Department), “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees” at the Abu Ghraib prison between October and December 2003. MAJ. GEN. ANTONIO M. TAGUBA, ARTICLE 15-6 INVESTIGATION OF THE 800TH MILITARY POLICE BRIGADE 16 (2004) [hereinafter REPORT OF MAJ. GEN. TAGUBA], These atrocities were condemned by the President of the United States as being “abhorrent” practices that “don’t represent America.” White House, Press Release, President Bush Meets with Al Arabiya Television, 2004 WLNR 2540883 (May 5, 2004). Both houses of Congress condemned the abuses, stating that those acts “contradicted] the policies, orders, and laws of the United States аnd the United States military,” H.R. Res. 627, 108th Cong. (2004), and “urg[ing] that all individuals responsible for such despicable acts be held accountable,” S. Res. 356, 108th Cong. (2004). Investigations conducted by the Defense Department concluded that CACI interrogators directed or participated in some of the abuses, along with a number of military personnel. See REPORT OF MAJ. GEN. TAGUBA 48; MAJ. GEN. GEORGE R. FAY, ARTICLE 15-6 INVESTIGATION OF THE ABU GHRAIB DETENTION FACILITY AND 205TH MILITARY INTELLIGENCE BRIGADE 7-8, 84, 86-87, 89, 116-17, 132-35 (2004).
The four plaintiffs in this case are foreign nationals who allege that they were tortured and otherwise mistreated by American civilian and military personnel while detained at Abu Ghraib. 2 Among many other examples of mistreatment, the plaintiffs describe having been “repeatedly beaten,” “shot in the leg,” “repeatedly shot in the head with a taser gun,” “subjected to mock execution,” “threatened with unleashed dogs,” “stripped naked,” “kept in a cage,” “beaten on [the] genitals with a stick,” “forcibly subjected to sexual acts,” and “forced to watch” the “rape[][of] a female detainee.” Many of the acts allegedly were perpetrated “during the night *522 shift” in order to “minimize the risk of detection by nonparticipants” and to “soften up” the detainees for later interrogation.
The plaintiffs allege that CACI employees “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees that clearly violated the Geneva Conventions, the Army Field Manual, and the laws of the United States.” In particular, the plaintiffs allege that in the “command vacuum at Abu Ghraib,” CACI interrogators operated with “little to no supervision” and were perceived as superiors by United States military personnel. Military personnel allegedly carried out orders issued by the CACI civilian interrogators to “soften up” and “set conditions” for the abuse of particular detainees, contrary to the terms of CACI’s contract with the United States government.
In that contract, which was executed in August 2003, CACI agreed to provide interrogation-related services to the military. This contract was not awarded by the Defense Department or military sources, but by the Department of the Interior (Interi- or Department). The contract, which was issued by an Interior Department contracting officer in Arizona, authorized CACI to collect payments in excess of $19 million by mailing invoices to Interior Department accounting offices in Colorado.
Under the terms of the Statement of Work (SOW) governing CACI’s contract with the government, CACI was obligated to supply interrogation “management and support” and to “function[] as resident experts” in interrogation regulations and procedures. The SOW stated that CACI would “provide Interrogation Support Cells, as directed by military authority, ... to assist, supervise, coordinate, and monitor all aspects of interrogation activities.” The SOW further specified that “[t]he Contractor is responsible for providing supervision for all contractor personnel.”
The plaintiffs allege that during CACI’s performance of this contract, CACI’s managers failed to hire suitable interrogators, insufficiently supervised CACI employees, ignored reports of abuse, and attempted to “cover up” the misconduct. The plaintiffs further allege that CACI’s site manager at the Abu Ghraib prison, Daniel Porvaznik, reviewed interrogation reports that “raised concerns of potential abuse” by CACI employees, established “daily contact with CACI [] in the United States,” and submitted reports that were reviewed weekly by CACI’s executive team in the United States “to assess the company’s overall worldwide business situation.” The plaintiffs also claim that CACI viсe-president Chuck Mudd traveled “regularly” to Iraq to become familiar with the interrogation operation at Abu Ghraib.
In addition, the plaintiffs allege that, despite troubling reports from CACI employees, CACI management failed to investigate or to report accusations of wrongdoing and repeatedly denied that any CACI employees had engaged in abusive conduct. Also, according to the complaint, CACI management [redacted]
The present litigation began with a civil action filed in June 2008 by plaintiff Suhail Najim Abdullah A1 Shimari (A1 Shimari) against CACI, CACI International, former CACI employee Timothy Dugan, and L-3 Services, Inc., another government contractor. The action originally was filed in the Southern District of Ohio, where defendant Timothy Dugan resided. In the complaint, A1 Shimari alleged claims under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, including claims of war crimes, torture, and cruel, inhuman, or degrading treatment (collectively, the ATS claims). The complaint also contained numerous common law claims, including claims of *523 assault and battery, sexual assault and battery, intentional and negligent infliction of emotional distress, and negligent hiring and training (collectively, the common law tort claims).
In August 2008, A1 Shimari’s aсtion was transferred to the Eastern District of Virginia, where the corporate headquarters of CACI and CACI International are located. The following month, A1 Shimari submitted an amended complaint that included the similar claims of three other plaintiffs, namely, Taha Yaseen Arraq Rashid, Salah Hasan Nusaif Al-Ejaili, and Asa’ad Hamza Hanfoosh Al-Zuba’e 3 (collectively, the Rashid plaintiffs). The amended complaint also identified the names of three CACI employees who allegedly “directed and caused some of the most egregious [acts of] torture and abuse at Abu Ghraib,” which information was based on post-conviction testimony and statements given by military personnel who had been prosecuted for their misconduct.
In October 2008, the defendants moved to dismiss the amended complaint on numerous grounds, including the political question doctrine, federal preemption, derivative sovereign immunity, and lack of subject matter jurisdiction under the ATS. The district court denied the defendants’ motion and held that the plaintiffs’ allegations did not present a political question. However, the court concluded that it lacked jurisdiction over the plaintiffs’ ATS claims because of the novelty of asserting such claims against private parties as opposed to state actors, and indicated that those claims could only proceed under diversity or federal question jurisdiction rather than under the ATS. CACI filed an interlocutory appeal of the district court’s decision.
On appeal, a panel of this Court concluded that the district court erred in permitting the plaintiffs’ claims to proceed because they were preempted by federal law under the Supreme Court’s reasoning in
Boyle v. United Technologies Corp.,
Our en banc decision was based on the conclusion that we lacked appellate jurisdiction because the district court’s rulings were not appealable under the collateral order doctrine articulated by the Supreme Court in
Cohen v. Beneficial Industrial Loan Corp.,
The case was returned to the district court, which entered a number of orders that are relevant to this appeal. First, the district court reinstated the plaintiffs’ ATS claims, observing that “a growing body of law ... suggests that plaintiffs’ claims ... are within the purview of international law.” The court dismissed some of the plaintiffs’ claims as insufficiently pleaded, but permitted the plaintiffs to amend their pleadings to allege a conspiracy between CACI and the United States military. The court also dismissed the Rashid plaintiffs’ common law tort claims with prejudice, concluding that Virginia law applied to the common law claims and that those claims were barred by the applicable statute of limitations and by a recent decision of the Supreme Court of Virginia holding that equitable tolling was unavailable under Virginia law.
The plaintiffs filed a third amended complaint against CACI only, which contained all four plaintiffs’ ATS claims and only plaintiff Al Shimari’s common law tort claims. The deadline for discovery in the case expired in April 2013. However, the record reflects that only a limited amount of information was obtained during discovery. Three of the four plaintiffs did not give deposition testimony in the case. Also, no depositions appear to have been taken of any individuals who served as former interrogators at Abu Ghraib, including the CACI interrogators who were identified specifically by the plaintiffs as participants in the alleged abuse.
Within weeks of the close of discovery, the Supreme Court issued its decision in
Kiobel v. Royal Dutch Petroleum Co.,
— U.S. -,
Thе district court also dismissed A1 Shi-mari’s remaining common law tort claims, holding that governing Iraqi law promulgated by the Coalition Provisional Authority (CPA) 4 precluded imposition of liability on the defendants, and awarded CACI $13,731.61 in costs as the prevailing party in the civil action. The plaintiffs timely appealed the district court’s entry of final judgment with respect to all four plaintiffs’ ATS and common law claims, as well as the district court’s taxation of costs against the plaintiffs.
II.
We address CACI’s two challenges to our subject matter jurisdiction. Because the district court dismissed the plaintiffs’ claims under the ATS for lack of jurisdiction, we first consider the jurisdictional scope of the ATS and whether the plaintiffs’ ATS claims fall within the reach of the statute. Based on our conclusion that *525 the plaintiffs’ ATS claims are within the statute’s reach, we also address whether those claims or the plaintiffs’ common law tort claims raise any nonjusticiable political questions.
A.
The plaintiffs seek to impose liability on CACI for alleged violations of international law, including torture. They assert that the claimed violations fall within the jurisdictional scope of the ATS, which provides that “[t]he 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.” 28 U.S.C. § 1350. The ATS, which was created as part of the Judiciary Act of 1789, enables federal courts to consider a limited category of claims that are defined by the law of nations.
Sosa v. Alvarez-Machain,
The international law violations that may be asserted under the ATS must be sufficiently definite in their content and acceptance among civilized nations that they reflect “historical paradigms” that were familiar at the time that the ATS was enacted.
Id.
at 732,
We emphasize, however, that we do not have before us the question whether the plaintiffs sufficiently have stated or established claims under the ATS alleging violations of international law. 5 Instead, we address our subject matter jurisdiction under the ATS, and decide whether the district court erred in holding that the ATS does not provide a cause of action for tortious conduct occurring outside the United States.
We begin by observing that the ATS is a jurisdictional statute that addresses “the power of the courts to entertain cases concerned with a certain subject,” and does not authorize the courts to “mold substantive law.”
Sosa,
In
Kiobel,
the Suрreme Court considered “whether a claim [brought under the ATS] may reach conduct occurring in the territory of a foreign sovereign.”
All the atrocities were alleged to have been committed in Nigeria, and it was undisputed that none of the conduct alleged in the complaint occurred within the territory of the United States. Id. at 1662-63. Moreover, none of the defendants had engaged in any activities in the United States that appeared relevant to the claimed tortious acts that occurred in Nigeria. The ATS claims’ only connections to the territory of the United States consisted of the foreign cоrporate defendants’ listings on the New York Stock Exchange and their affiliation with a public relations office in New York City. Id. at 1677 (Breyer, J., concurring in the judgment).
The Supreme Court held that the petitioners’ ATS claims were barred.
Id.
at 1669 (majority opinion). In reaching this conclusion, the Court primarily relied on the principles underlying an established canon of statutory interpretation, which raises a presumption against extraterritorial application of acts of Congress (“the presumption,” or “the presumption against extraterritorial application”).
See id.
at 1664-65, 1669. The presumption reflects the “longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States” because “Congress ordinarily legislates with respect to domestic, not foreign matters.”
Morrison v. Nat’l Austl. Bank Ltd.,
The Supreme Court explained that the principles underlying the presumption restrain courts in their consideration of causes of action that may be brought under the ATS.
Kiobel,
Under the presumption, “[w]hen a statute gives no clear indication of an extraterritorial application, it has none[.]”
Id.
(quoting
Morrison,
Crucially, however, the Court explained its holding by stating that “[o]n these facts, all the relevant conduct took place outside the United States.” Id. The Court elaborated that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Id. And, in a reference to the fact that the pеtitioners had not alleged any connection with the territory of the United States other than the physical presence of the foreign corporate defendants, the Court explained that “[cjorporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Id.
We observe that the Supreme Court used the phrase “relevant conduct” to frame its “touch and concern” inquiry, but never defined that term. Under the facts presented, there was no need to do so because all the conduct underlying the petitioners’ claims occurred outside United States territory. We also note that the Court broadly stated that the “claims,” rather than the alleged tortious conduct, must touch and concern United States territory with sufficient force, suggesting that courts must consider all the facts that give rise to ATS claims, including the parties’ identities and their relationship to the causes of action. Id.; see, e.g., Black’s Law Dictionary 281 (9th ed.2009) (defining “claim” as the “aggregate of operative facts giving rise to a right enforceable by a court”).
The Court’s choice of such broad terminology was not happenstance, as illustrated by the opinions of concurring Justices who offered alternative views. For example, Justice Alito, in a concurring opinion in which Justice Thomas joined, advocated a “broader” view of the presumption’s effect on ATS jurisdiction, which would bar an ATS action “unless the domestic conduct is sufficient to violate an international law norm” that is sufficiently definite and accepted among civilized nations.
Kiobel,
The “touch and concern” language set forth in the majority opinion contemplates that courts will apply a fact-based analysis to determine whether particular ATS claims displace the presumption against extraterritorial application. In an opinion concurring in the judgment, Justice Breyer, with whоm Justice Ginsburg, Justice Sotomayor, and Justice Kagan joined, would have allowed jurisdiction whenever: “(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” Id. at 1674 (Breyer, J., concurring in the judgment). And, as Justice Kennedy observed in his concurring opinion, the Supreme Court evidently left unanswered “significant questions regarding the reach and interpretation of the Alien Tort Statute” that “may require some further elaboration and explanation” of the “proper implementation” of the presumption in cases that are not “covered ... by the reasoning *528 and holding of [Kiobel].” Id. at 1669 (Kennedy, J., concurring).
In the present case, the plaintiffs argue that based on Kiobel, the ATS provides jurisdiction for claims that “touch and concern” United States territory with “sufficient force to displace” the presumption. See id. (majority opinion). The plaintiffs contend that their claims’ substantial connections to United States territory are sufficient to rebut the presumption.
In response, the defendants argue that, under the decision in Kiobel, the ATS does not under any circumstances reach tor-tious conduct occurring abroad. The defendants maintain that the sole material consideration before us is the fact that the plaintiffs’ claims allege extraterritorial tor-tious conduct, which subjects their claims to the same fatal outcome as those in Kiobel. We disagree with the defendants’ argument, which essentially advances the view expressed by Justices Alito and Thomas in their separate opinion in Kiobel.
Because five justices, including Justice Kennedy, joined in the majority’s rationale applying the presumption against extraterritorial application, the presumption is part of the calculus that we apply here. However, the clear implication of the Court’s “touch and concern” language is that courts should not assume that the presumption categorically bars cases that manifest a close connection to United States territory. Under the “touch and concern” language, a fact-based analysis is required in such cases to determine whether courts may exercise jurisdiction over certain ATS claims. Accordingly, the presumption against extraterritorial application bars the exercise of subject matter jurisdiction over the plaintiffs’ ATS claims unless the “relevant conduct” alleged in the claims “touch[es] and concernfs] the territory of the United States with sufficient force to displace the presumption. ...”
In Kiobel, the Court’s observation that all the “relevant conduct” occurred abroad reflected those claims’ extremely attenuated connection to United States territory, which amounted to “mere corporate presence.” Indeed, the only facts relating to the territory of the United States were the foreign corporations’ public relations office in New York City and their listings on the New York Stock Exchange. Because the petitioners in Kiobel were unable to point to any “relevant conduct” in their claims that occurred in the territory of the United States, the presumption was conclusive when applied to the facts presented.
In the present case, however, the issue is not as easily resolved. The plaintiffs’ claims reflect extensive “relevant conduct” in United States territory, in contrast to the “mere presence” of foreign corporations that was deemed insufficient in Kiobel. When a claim’s substantial ties to United States territory include the performance of a contract executed by a United States corporation with the United States government, a more nuanced analysis is required to determine whether the presumption has been displaced. In such cases, it is not sufficient merely to say that because the actual injuries were inflicted abroad, the claims do not touch and concern United States territory.
Here, the plaintiffs’ claims allege acts of torture committed by United States citizens who were employed by an American corporation, CACI, which has corporate headquarters located in Fairfax County, Virginia. The alleged torture occurred at a military facility operated by United States government personnel.
In addition, the employees who allegedly participated in the acts of torture were hired by CACI in the United States to fulfill the terms of a contract that CACI *529 executed with the United States Department of the Interior. The contract between CACI and the Department of the Interior was issued by a government office in Arizona, and CACI was authorized to collect payments by mailing invoices to government accounting offices in Colorado. Under the terms of the contract, CACI interrogators were required to obtain security clearances from the United States Department of Defense.
Finally, the allegations are not confined to the assertion that CACI’s employees participated directly in acts of torture committed at the Abu Ghraib prison. The plaintiffs also allege that CACI’s managers located in the United States were aware of reports of misconduct abroad, attempted to “cover up” the misconduct, and “implicitly, if not expressly, encouraged” it.
These ties to the territory of the United States are far greater than those considered recently by the Second Circuit in
Balintulo v. Daimler AG,
Although the “touch and concern” language in Kiobel may be explained in greater detail in future Supreme Court decisions, we conclude that this language provides current guidance to federal courts when ATS claims involve substantial ties to United States territory. We have such a case before us now, and we cannot decline to consider the Supreme Court’s guidance simply because it does not state a precise formula for our analysis.
Applying this guidance, we conclude that the ATS claims’ connection to the territory of the United States and CACI’s relevant conduct in the United States require a different result than that reached in
Kio-bel.
In its decision in
Morrison,
the Supreme Court emphasized that although the presumption is no “timid sentinel,” its proper application “often[] is not selfevi-dently dispositive” and “requires further analysis.”
Indeed, we observe that mechanically applying the presumption to bar these ATS claims would not advance the purposes of the presumption. A basic premise of the presumption against extraterritorial application is that United States courts must be wary of “international dis
*530
cord” resulting from “unintended clashes between our laws and those of other nations.”
Kiobel,
We likewise note that further litigation of these ATS claims will not require “unwarranted judicial interference in the conduct of foreign policy.”
Kiobel,
The plaintiffs do not appear to have access to federal courts under the Torture Victim Protection Act of 1991 (TVPA), presumably because they did not suffer injury “under actual or apparent authority, or color of law, of any
foreign
nation.... ” Pub.L. No. 102-256, 106 Stat. 73, note following 28 U.S.C. § 1350 (emphasis added). Nevertheless, the TVPA’s broad prohibition against torture reflects Congress’s recognition of a “distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”
Kiobel,
We conclude that the plaintiffs’ ATS claims “touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritorial application based on: (1) CACI’s status as a United States corporation; (2) the United States citizenship of CACI’s employees, upon whose conduct the ATS claims are based; (3) the facts in the record showing that CACI’s contract to perform interrogation services in Iraq was *531 issued in the United States by the United States Department of the Interior, and that the contract required CACI’s employees to obtain security clearances from the United States Department of Defense; (4) the allegations that CACI’s managers in the United States gave tacit approval to the acts of torture committed by CACI employees at the Abu Ghraib prison, attempted to “cover up” the misconduct, and “implicitly, if not expressly, encouraged” it; and (5) the expressed intent of Congress, through enactment of the TVPA and 18 U.S.C. § 2340A, to provide aliens access to United States courts and to hold citizens of the United States accountable for acts of torture committed abroad. 8 Accordingly, we hold that the district court erred in concluding that it lacked subject matter jurisdiction under the ATS, and we vacate the district court’s judgment dismissing the plaintiffs’ ATS claims on that basis.
B.
Our decision regarding the ATS answers only the first issue of subject matter jurisdiction presented in this appeal. We also must consider whether the record before us adequately supports a finding that litigation of the plaintiffs’ ATS claims and common law tort claims will avoid any “political questions” that would place those claims outside the jurisdiction of the federal courts.
The political question doctrine is a “function of the separation of powers,” and prevents federal courts from deciding issues that the Constitution assigns to the political branches, or that the judiciary is ill-equipped to address.
Baker v. Carr,
In considering these issues when a defendant challenges subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court may evaluate the pleadings as evidence on the issue and may consider other evidence in the record “without converting the proceeding to one for summary judgment.”
Velasco v. Gov’t of Indon.,
We first observe that CACI’s position asserting the presence of a political question was resolved by the district court in the plaintiffs’ favor much earlier in this litigation. In March 2009, before any discovery had been conducted, CACI challenged the court’s subject matter jurisdiction on political question grounds, based on the allegations in the complaint.
At that time, the district court analyzed the six factors set forth by the Supreme Court in Baker solely by reference to the plaintiffs’ complaint, and rejected CACI’s jurisdictional challenge. The court concluded that the case was not “constitutionally committed” to the executive branch becаuse the case “challenges not the government itself or the adequacy of official government policies, but the conduct of government contractors carrying on a business for profit.” Next, the court found that in view of the allegations of a conspiracy between “low-level contractors and military personnel,” the court “could analyze this low-level conspiracy” without questioning the interrogation policies authorized by “top military and government officials.”
The district court further concluded that there were “judicially discoverable and manageable standards” for evaluating the plaintiffs’ claims, citing other “extensive” litigation regarding the events at Abu Ghraib prison, the availability of eyewitness testimony based on courts martial of military personnel, and the limited nature of any classified discovery material. The court stated that “manageable judicial standards are readily accessible through the discovery process,” and that the court “suspect[ed] that the contract [between CACI and the government] details CACI’s responsibilities in conducting the interrogations, outlines the applicable laws and rules that CACI рersonnel are bound by, and sets further restrictions on the type of conduct permitted.”
The district court also noted that the process of reviewing CACI’s conduct would not demonstrate a “lack of respect” for the political branches, because “matters are not beyond the reach of the judiciary simply because they touch upon war or foreign affairs.” The court found that the case could be decided without the need for policy determinations clearly requiring “nonjudicial discretion,”
see Baker,
Although CACI appealed the district court’s ruling on numerous bases, including justiciability, our conclusion that we lacked jurisdiction over the interlocutory appeal under the collateral order doctrine returned the case to the district court without a decision whether the case presented a political question.
See Al Shimari,
In this appeal, CACI renews its political question challenge, contending that the treatment and interrogation of detainees during war is a key component of national *533 defense considerations that are committed to the political branches of government. CACI also asserts that there are no judicially discoverable standards for deciding intentional tort claims in the context of a war zone, and that CACI interrogators were performing a “common mission” with the military and were acting under direct military command and control. CACI further maintains that most of the alleged forms of abuse at issue “were approved by the Secretary of Defense and incorporated into rules of engagement by military commanders at Abu Ghraib.”
CACI’s arguments are based on constitutional considerations and factual assertions that are intertwined in many respects. We begin our considеration of these arguments by recognizing that “most military decisions” are matters “solely within the purview of the executive branch,”
Taylor,
Nevertheless, the fact that a military contractor was acting pursuant to “orders of the military does not, in and of itself, insulate the claim from judicial review.”
Taylor,
Importantly, in the present case, more than five years have elapsed since the district court rendered its initial determination of justiciability. During the intervening period, this Court has formulated a test for considering whether litigation involving the actions of certain types of government contractors is justiciable under the political question doctrine.
See Taylor,
In our decision in
Taylor,
we adapted the Supreme Court’s analysis in
Baker
to a particular subset of lawsuits, namely, those brought against government contractors who perform services for the military.
See Burn Pit,
In analyzing the justiciability of the soldier’s negligence claim, we recognized the need to “carefully assess the relationship” between the military and the contractor, and to “gauge the degree to which national defense interests may be implicated in a judicial assessment” of the claim.
Id.
at 409-10. We distilled the six
Baker
factors into two critical components: (1) whether the government contractor was under the “plenary” or “direct” control of the military; and (2) whether national defense interests were “closely intertwined” with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim “would require the
*534
judiciary to question actual, sensitive judgments made by the military.”
Id.
at 411 (quotation omitted). We noted that an affirmative answer to either of these questions will signal the presence of a nonjusti-ciable political question.
See Burn Pit,
We further explained in
Taylor
that, in conducting this two-part inquiry, a court must “ ‘look beyond the complaint, and consider how [the plaintiffs] might prove [their] claim[s]
and
how [the contractor] would defend.’ ”
Taylor,
In
Taylor,
we stated that “if a military contractor operates under the plenary control of the military, the contractor’s decisions may be considered as de facto military decisions.”
We contrasted these facts with those reviewed in
Carmichael v. Kellogg, Brown & Root Services, Inc.,
Since our decision in
Taylor,
we have clarified that the critical issue with respect to the question of “plenary” or “direct” control is not whether the military “exercised some level of oversight” over a contractor’s activities.
Burn Pit,
The second
Taylor
factor concerns whether “a decision on the merits ... would require the judiciary to question actual, sensitive judgments made by the military.”
Taylor,
By contrast, in
Bum Pit
we analyzed a military contractor’s “proximate сausation” defense, in which the contractor maintained that the plaintiffs’ alleged injuries were caused by military decisions and conduct.
In the present case, however, we do not have a factual record developed by the district court like the records considered in Taylor and in Burn Pit. And, from our rеview of the record before us, we are unable to determine whether a political question exists at this stage of the litigation. 9
With respect to the first Taylor factor, the evidence in the record is inconclusive regarding the extent to which military personnel actually exercised control over CACI employees in their performance of their interrogation functions. CACI argues that military control is evidenced by the contract’s stipulation that CACI would *536 provide services “as directed by military authority.” CACI also cites a deposition in which a military officer stated that [redacted] According to that officer, [redacted] Finally, a military contracting officer declared that [redacted]
The plaintiffs argue in response that there was an absence of “direct control” by the military over the manner in which CACI’s contract was to be performed, and that the contract language reflects a broad grant of discretion to CACI.
See Taylor,
This limited record suggests that, at least for required interrogations, CACI interrogators may have been under the direct control of the military if they submitted and executed interrogation plans approved by the military, and if those interrogation plans detailed particular methods for treating detainees. However, based on the minimal evidence before us, we are unable to determine whether the actual content of any interrogation plans subjected the CACI interrogators to such direct control. We also are unable to determine the extent to which the military controlled the conduct of the CACI interrogators outside the context of required interrogations, which is particularly concerning given the plaintiffs’ allegations that “Most of the abuse” ocсurred at night, and that the abuse was intended to “soften up” the detainees for later interrogations.
A thorough analysis of these matters, as mandated by
Taylor,
cannot be achieved simply by reviewing the plaintiffs’ pleadings and the limited record on appeal, but also will require factual development of the record by the district court and possibly additional jurisdictional discovery. Therefore, we will remand this case to the district court for further consideration with respect to the application of the first
Taylor
factor of “direct control.”
See Burn Pit,
We reach a similar conclusion with respect to the second
Taylor
factor, because the record does not reveal the defenses that the defendants intend to employ with regard to the merits of the plaintiffs’ claims. Indeed, the district court has not yet identified the precise elements that the plaintiffs will be required to prove in their ATS claims for the alleged international law violations. Thus, we are unable to assess whether a decision on the merits would require the judiciary “to question actual, sensitive judgments made by the military.”
See Taylor,
Although the plaintiffs’ remaining common law tort claims are premised on familiar causes of action, which the district court thoroughly analyzed in its decision regarding the sufficiency of those claims under Federal Rule of Civil Procedure 12(b)(6), we do not know the degree to which CACI’s defenses to these claims might implicate any political questions until the contours of all the plaintiffs’ claims are further developed. We therefore re *537 frain from reaching the additional issues presented on appeal regarding whether the plaintiffs’ common law claims properly were dismissed under Rule 12(b)(6). 10
Based on the issues we have identified that cannot be resolved on the present record, we are unable to perform a “discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling ..., and of the possible consequences of judicial action.”
Baker,
III.
For these reasons, we vacate the district court’s judgment and, consequently, the court’s award of costs, and remand all the plaintiffs’ claims for further proceedings in accordance with the principles expressed in this opinion.
VACATED AND REMANDED.
Notes
. Some of the information pertinent to this appeal has been filed under seal. This Court has avoided reference to sealed documents to the greatest extent possible and has made any necessary redactions to the publicly available version of the opinion.
. The record does not contain any evidence that the plaintiffs were designated “enemy combatants” by the United States government. In fact, Defense Department documents in the record state that plaintiff Al Shimari "is not an Enemy Combatant in the Global War on Terror.” (Emphasis in original.)
. We note that various spellings of the name of one of the plaintiffs, Asa'ad Hamza Han-foosh Al-Zuba’e, appear in documents filed with the district court and in the parties' appellate briefs. For the purposes of this opinion, we adopt the spelling that appears on the face of the plaintiffs' third amended complaint and in the plaintiffs’ opening brief.
. The CPA was a temporary governing body that was created by U.S. Army General Tommy Franks, the Commander of Coalition Forces, and recognized by a United Nations Security Council resolution. See, e.g., U.S. ex rel. DRC, Inc. v. Custer Battles, LLC, 562 F.3d 295, 297 (4th Cir.2009). The CPA governed Iraq from May 2003 to June 2004, when governing authority passed to the Interim Government of Iraq. Id. at 298.
. We also do not have before us the question whether a corporation can be held liable for the tortious conduct of its employees constituting international law violations under the ATS.
. The petitioners alleged that Nigerian police and military forces were responsible for "beating, raping, killing, and arresting residents and destroying or looting property.”
Kiobel,
. We also note that ATS jurisdiction is not precluded by the fact that the alleged conduct occurred while the plaintiffs in this case were detained in the custody of the United States military. In
Rasul v. Bush,
the Supreme Court considered this issue with regard to detainees at Guantanamo Bay, Cuba, where the United States maintains a Naval Base under a treaty and a long-term lease with the government of Cuba. See
. Because of our holding that the plaintiffs' ATS claims "touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritorial application, we need not address the plaintiffs' alternative argument that the relevant conduct did not occur within the territory of a foreign sovereign because the Abu Ghraib prison constituted the "de facto territory” of the United States.
. We also observe that the United States has not sought to intervene or file an amicus brief with respect to the present appeal. We note, however, that during earlier proceedings in this case, the United States represented that "[t]he Court need not resolve defendants’ political question arguments at this stage of the litigation.” Brief for the United States as Amicus Curiae,
Al Shimari v. CACI Int'l, Inc.,
. In remanding the plaintiffs’ common law claims for further proceedings under Federal Rule of Civil Procedure 12(b)(1), we express no opinion regarding the correctness of the district court's dismissal of those claims under Federal Rule of Civil Procedure 12(b)(6).