Lead Opinion
Suhail A1 Shimari, Taha Rashid, Salah Al-Ejaili, and Asa’ad Al-Zuba’e (the plaintiffs), four Iraqi nationals, alleged that they were abused while detained in the custody of the United States Army at Abu Ghraib prison, located near Baghdad, Iraq, in 2003 and 2004. They were detained beginning in the fall of 2003, and ultimately were released without being charged with a crime. In 2008, they filed this civil action against CACI Premier Technology, Inc. (CACI), which provided contract interrogation services for the military at the time of the alleged mistreatment.
In their third amended complaint, the plaintiffs alleged pursuant to the Alien Tort Statute (ATS), 28 U.S.C. § 1350, that CACI employees committed acts involving torture and war crimes, and cruel, inhuman, or degrading treatment. The plaintiffs also asserted various tort claims under the common law, including assault and battery, sexual assault and battery, and intentional infliction of emotional distress.
This case is before this Court for the fourth time. In our most recent decision, we remanded the case to the district court to conduct jurisdictional discovery on the issue whether the political question doctrine barred the plaintiffs’ claims. On remand, after reopening discovery, the district court dismissed the plaintiffs’ complaint on the ground that it presented a non-justiciable political question. The court based its decision on three grounds: (1) that the military exercised direct control over interrogation operations at Abu Ghraib; (2) that adjudication of the-plaintiffs’ claims would require the court improperly to question sensitive military judgments; and (3) that the court lacked any judicially manageable standards to resolve the plaintiffs’ claims.
The plaintiffs once again appeal. Upon our review, we conclude that the district court erred in its analysis by failing to determine whether the military exercised actual control over any of CACI’s alleged conduct. We hold that conduct by CACI employees that was unlawful when committed is justiciable, irrespective whether that conduct occurred under the actual control of the military; We further hold that acts committed by CACI employees are shielded from judicial review under the political question doctrine if they were not unlawful when committed and occurred under the actual control of the military or involved sensitive military judgments."
We therefore vacate the district court’s judgment. We remand the case for the district court to re-examine its subject matter jurisdiction under the political question doctrine in accordance with the above holdings.
I.
We recounted the circumstances underlying the plaintiffs’ complaint and the complicated procedural history of this case at length in our previous opinion, Al Shimari v. CACI Premier Tech., Inc.,
Following the invasion of Iraq in 2003, the United States took control of Abu Ghraib prison (Abu Ghraib), a facility located near Baghdad, Iraq that previously was under the control-of Saddam Hussein. Upon assuming control of the facility, the United States military used the prison to detain criminals, enemies of the provisional government, and other persons held for
As documented in a later investigation conducted by the United States Department of Defense, “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees” at Abu Ghraib between October and December 2003. Al Shimari III,
The plaintiffs alleged in their complaint that CACI interrogators entered into a conspiracy with low-ranking military police officials to commit abusive acts on the plaintiffs, in order to “soften up” the detainees so that they would be more responsive during later interrogations. The plaintiffs further alleged that they were victims of a wide range of mistreatment, including being beaten, choked, “subjected to electric shocks,” “repeatedly shot in the head with a taser gun,” “forcibly subjected to sexual acts,” subjected to sensory deprivation, placed in stress positions for extended periods of time, deprived of food, water, and sleep, threatened with unleashed dogs and death, and forced to wear women’s underwear.
Additionally, the plaintiffs alleged that CACI interrogators “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.” According to the plaintiffs, most of these acts of abuse occurred during the nighttime shift at the prison, in order to reduce the likelihood that nonparticipants would learn of this conduct. The plaintiffs contend that these acts of abuse were possible because of a “command vacuum” at Abu Ghraib, caused by the failure of military leaders to exercise effective oversight over CACI interrogators and military police.
CACI moved to dismiss the plaintiffs’ complaint on several 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, holding in part that the plaintiffs’ claims did not present a political question. Nevertheless, the court concluded that it lacked jurisdiction over the plaintiffs’ ATS claims, because CACI was a private party rather than a governmental actor, and opined that those claims could only proceed under diversity or federal question jurisdiction.
On appeal, a panel of this Court concluded that the plaintiffs’ claims were preempted by federal law under the Supreme Court’s decision in Boyle v. United Technologies Corp.,
On remand from Al Shimari II, the district court reinstated the plaintiffs’ ATS claims, but dismissed without prejudice the plaintiffs’ claims alleging a conspiracy between CACI and the military.
In April 2013, shortly after the third amended complaint was filed, the deadline for discovery on the merits of the plaintiffs’ claims expired. The same week, the Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum Co., — U.S. -,
On appeal from that decision, in AI Shi-mari III we concluded that the district court had jurisdiction over the plaintiffs’ ATS claims under the Supreme Court’s reasoning in Kiobel.
On remand from Al Shimari III, the district court reopened the record for jurisdictional discovery on the issue of the political question doctrine, although it appears that minimal, if any, additional discovery was taken.
II.
The plaintiffs contend that the district court erred in dismissing their complaint as non-justiciable under the political question doctrine. They first assert that the district court erred.in finding that the military had direct control over formal interrogations at Abu Ghraib prison, and in failing to evaluate whether the military actually exercised such control during related activities that occurred outside the formal interrogation process. In the plain
The plaintiffs also argue that. their claims would not require the courts to evaluate sensitive military judgments because the claims challenge the legality, rather than the reasonableness, of CACI’s conduct. Separately, the plaintiffs assert that the district court erred in concluding that it lacked manageable standards for resolving their claims.
In response, CACI contends that the district court properly concluded that this case presents a political question. According to CACI, the district court’s finding that the military exercised control over interrogation operations at Abu Ghraib ends the issue of justiciability in this case. CACI also maintains that the district court correctly held,that the case is non-justicia-ble because judicial review of the interrogation tactics used would require a court to question sensitive military judgments. Finally, CACI asserts that the district court correctly concluded that it lacked manageable standards for resolving the plaintiffs’ claims. We disagree with CACI’s arguments.
III.
In reviewing a district court’s dismissal of a claim for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we review the court’s factual findings for clear error and its legal conclusions de novo. In re KBR, Inc., Burn Pit Litig.,
The district court is authorized to resolve factual disputes in evaluating its subject matter jurisdiction. United States ex rel. Vuyyuru v. Jadhav,
A.
The political question doctrine derives from- the principle of separation of powers, and deprives courts of jurisdiction over “controversies which revolve around policy choices and value determinations constitutionally committed” to Congress or, as alleged in this case, to the executive branch. Japan Whaling Ass’n v. Am. Cetacean Soc’y,
The Supreme Court established a six-factor test in Baker v. Carr,
In Taylor v. Kellogg Brown & Root Services, Inc.,
The plaintiff in' Taylor, a Marine who ' suffered' inj mies' resulting from an electrical shock sustained on a military base in Iraq, asserted a negligence claim against a government contractor based on the contractor’s activation of a generator while the plaintiff was performing work on a wiring box.
Our holding in Taylor reflected our concern that when national defense interests are at stake, courts must carefully assess the extent to which these interests may be implicated in any litigation of a plaintiffs claims involving the conduct of a military contractor. Taylor,
B.
The present case requires us to examine the factors and related considerations dis
i.
As stated above, the first Taylor factor asks whether' the acts occurred while the government contractor was under the direct control of the military. Taylor,
In the district court, the evidence regarding the military’s control over the CACI interrogators proceeded on parallel tracks, with evidence demonstrating formal military control presented alongside evidence showing that the military failed to exercise actual control over the interrogators. With regard to formal control, the record shows that the military was in charge of the official command structure at Abu Ghraib and instituted procedures governing the interrogation process. For example, in September and October 2003, military leadership located in Baghdad issued two memoranda establishing the particularized rules of engagement for interrogations (IROEs) conducted at Abu Ghraib, which authorized the use of several, specific interrogation techniques.
Other evidence in the record, however, indicated that the military failed to exercise actual control over the work conducted by the CACI interrogators. In one government report, an investigator unequivocally concluded that military leaders at Abu Ghraib “failed to supervise subordinates or provide direct oversight” of the mission, and that the “lack of command presence, particularly at night, was clear.”
The above evidence of a “command vacuum” raises the question whether the military exercised actual control over any interrogation-related activities during which
Rather than addressing the issue of actual control, the district court began and ended its analysis by drawing conclusions based on the evidence of formal control. This approach failed to address the full scope of review that the district court needed to conduct on remand. We explained in A1 Shimari III that the record was inconclusive “regarding the extent to which military personnel actually exercised control over CACI employees in their performance of their interrogation functions.” Al Shimari III,
We thus asked the district court to consider whether the military actually controlled the CACI interrogators’ Job performance, including any activities that occurred outside the formal interrogation process. The first Taylor factor is not satisfied by merely examining the directives issued by the military for .conducting interrogation sessions, or by reviewing any particular interrogation plans that the military command approved in advance. Instead, the concept of direct control encompasses not only the requirements that were set in place in advance of the interrogations, but also what actually occurred in practice during those interrogations and related activities.
In examining the issue of direct control, when a contractor engages in a lawful action under the actual control of the military, we will consider the contractor’s action to be a “de facto military decision[ ]” shielded from judicial review under the political question doctrine. Taylor,
ii.
We turn now to consider the district court’s treatment of the second Tay
We conclude that the above analysis that the district court conducted was incomplete. In addressing the second Taylor factor, the district court erred in failing to draw a distinction between unlawful conduct and discretionary acts that were not unlawful when committed.
The commission of unlawful acts is not based on “military expertise and judgment,” and is not a function committed to a coordinate branch of government. See Carmichael,
iii.
In reaching this conclusion, we emphasize the long-standing principle that courts are competent to engage in the traditional judicial exercise of determining whether particular conduct complied with applicable law. See El-Shifa Pharm. Indus. Co. v. United States,
For the same reasons, this principle generally renders justiciable claims against a government contractor alleging a statutory violation. See El-Shifa,
The Supreme Court likewise has explained that' the political question doctrine does not strip courts of their authority to construe treaties and agreements entered into by the executive branch, despite the potential political implications of judicial review. Japan Whaling,
iv.
Applying' the Taylor factors in accordance with the above-stated principles, we hold that any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject, to judicial review. Thus, the plaintiffs’ claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.
We remain mindful, however, that this - dichotomy between lawful discretionary acts and unlawful activity will not always be clear when applied to particular conduct. Although alleged conduct that on its face is aggravated and criminal in nature, such as sexual assault and beatings, clearly will present, a subject for judicial review unaffected by the political question doctrine, other conduct may not be capable of such clear categorization. In instances in which the lawfulness of such conduct was not settled at the time the conduct occurred, and the conduct occurred under the actual control, of the military or involved sensitive military judgments, that conduct will not be subject to judicial review. Cf. Viet. Ass’n for Victims of Agent Orange v. Dow Chem. Co.,
Here, the plaintiffs alleged pursuant to the ATS that CACI interrogators engaged in a wide spectrum of conduct amounting to torture, war crimes, and/or cruel, inhuman, or degrading treatment, as well as various torts under the common law. Among other things, the plaintiffs alleged that they were subjected to beatings, stress positions, forced nudity, sexual assault, and death threats, in addition to the withholding of food, water, and medical care, sensory deprivation, and exposure to extreme temperatures. Counsel for CACI conceded at oral argument that at least some of the most egregious conduct alleged, including sexual assault and beatings, was clearly unlawful, even though CACI maintains that the plaintiffs cannot show that CACI interrogators perpetrated any of these abuses.
We decline to render in the first instance a comprehensive determination of which acts alleged were unlawful when committed, or whether the plaintiffs have stated claims to relief that could survive a motion filed under Federal Rule of Civil Procedure 12(b)(6). Nevertheless, as noted above, some of the alleged acts plainly were unlawful at the time they were committed and will not require extensive consideration by the district court. Accordingly, on remand, the district court will be required to determine which of the alleged acts, or constellations of alleged acts, violated settled international law and criminal law governing CACI’s conduct and, therefore, are subject to judicial review.
This “discriminating analysis,” see Baker,
C.
Distinct from its holding of non-justiciability under Taylor, the district court separately concluded under the second Baker factor that the case lacked manageable standards for judicial resolution of the plaintiffs’ claims. The court emphasized that its general lack of expertise in applying international law, and thé difficulty of determining the constraints of such law, also rendered the case non-justiciable. We disagree with the district court’s conclusion.
Unlike in negligence cases calling into question military standards of conduct, the district court in the present case is called upon to interpret statutory terms and established international' norms to resolve the issues presented by the ATS claims. See Kadic v. Karadzic,
With regard to the present case, the terms “torture” and “war crimes” are defined at length in the United States Code and in international agreements to which the United States government has obligated itself. See, e.g., 18 U.S.C. §§ 2340-2340A (implementing the United States’ obligations as a signatory of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment); 18 U.S.C. § 2441 (prescribing criminal penalties under the United States Code for “war crimes,” including “grave breaches” of the Geneva Conventions). Courts also have undertaken the challenge of evaluating whether particular conduct amounts to torture, war crimes, or cruel, inhuman, or degrading treatment. See, e.g., United States v. Belfast,
Although the substantive law applicable to the present claims may be unfamiliar and complicated in many respects, we cannot conclude that we lack manageable standards for their adjudication justifying invocation of the political question doctrine. In reaching this conclusion, we agree with the observation that courts may not “decline to resolve a' controversy within their traditional competence and proper jurisdiction simply because the question is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches.” Zivotofsky,
We recognize that the legal issues presented in this case are indisputably complex, but we nevertheless 'cannot abdicate our judicial role in such cases. Nor will we risk weakening prohibitions under United States and international law against torture and war crimes by questioning the justiciability of a case merely because the case involves the need to define such terms. The political question doctrine does not shield from judicial review intentional acts by a government contractor that were unlawful at the time they were committed.
Accordingly, we vacate the district court’s judgment, and remand this case for further proceedings consistent with the principles and instructions stated in this opinion.
VACATED AND REMANDED
. The court also dismissed with prejudice the plaintiffs’ claims against the parent company of CACI, CACI International, and the conspiracy claims against individual CACI employees.
. Notably, after eight years of litigation, to date only one of the plaintiffs has been deposed in this case, because the United States government has not allowed the plaintiffs to enter the United States.
. Generally, investigative government reports of this nature are admissible as an exception to the rule against hearsay under Federal Rule of Evidence 803(8)(A)(iii).
. The United States Department' of the Army Field Manual 34-52, Intelligence Interrogation (Sept. 28, 1992) (the Field Manual or Manual), in effect at the time of the alleged events in this case, states that interrogations must occur within the "constraints” of the Uniform Code of Military Justice as well as the Geneva Conventions. Id. preface at iv-v. The Manual expressly prohibits ‘‘[p]hysical or mental torture and coercion,” defining "torture” as "the infliction of intense pain to body or mind to extract a confession or information, or for sadistic pleasure." Id. at 1-8. The Manual also lists examples of prohibited practices, including some of the techniques challenged in this case, such as electric shocks, food deprivation, "[a]ny form of beating,” “[f]orcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time,” mock executions, and "[a]bnormal sleep deprivation.” Id. The Field Manual cautions that any "[s]uch illegal acts are not authorized and will not be condoned” by the military. Id.
. Given the nature of the claims alleged in this case, we are not presented at this stage of the litigation with “policy choices and value determinations” embedded within a claim alleging a violation of customary international law. See El-Shifa,
. We decline CACI’s invitation to rely on out-of-circtiif precedent cited in its letter submitted to the Court after oral argument. These citations are not the proper subject of a submission pursuant to Federal Rule of Appellate Procedure 28(j). And, in any event, these' authorities only reinforce our view that, when a plaintiff's claim challenges a core foreign policy decision made by the political branches of government, the political question doctrine bars review.
. As with the ATS claims, to the extent that conduct underlying the common law claims was unlawful, those claims also will be justiciable. We observe, however, that certain allegations underlying the common law claims may involve conduct that, although tortious under the common law, did not constitute a violation of applicable criminal or international law. A nonconsensual touching that might constitute battery, or conduct that might amount to intentional infliction of emotional distress, under the common law nevertheless may have been an interrogation tactic that the military lawfully could have authorized. Accordingly, we express no view on the justiciability of common law claims alleging conduct that was not unlawful at the time. We leave this determination to the district court in the first instance.
In the event that the district court determines that any of the common law claims are justiciable, the court nevertheless may elect to reinstate its prior order dismissing those claims under Rule 12(b)(6), which order this Court has not yet reviewed.
Concurrence Opinion
concurring:
I am pleased to join in Judge Keenan’s fine opinion in this case. I write separately to articulate my understanding of one aspect of our holding. I agree that the “dichotomy between lawful discretionary acts and unlawful activity will not always be clear when applied to particular conduct.” Ante at 159. In discussing this concept with the term “grey area,” ante at 159-60, I do not understand the opinion to suggest that courts cannot adjudicate close questions of lawfulness regarding military affairs. Courts can adjudicate such questions without offending the political question doctrine.
“The nonjusticiability of a political question is primarily a function of the separation of powers” under our constitutional scheme. Baker v. Carr,
The precise contours of “what the law is” may be uncertain until a court evaluates the lawfulness of specific conduct. For example, despite repeated judicial application of torture laws, see ante at 161, the precise legal scope of the prohibition on torture is not perfectly defined. There is, in other words, conduct for which the judiciary has yet.to determine the lawfulness: loosely, a grey area.
But this greyness does not render close torture cases nonjusticiable merely because the alleged torturer was part of the executive branch. While executive officers can declare the military reasonableness of conduct amounting to torture, it is beyond the power of even- the President to declare such conduct lawful. The same is true for any other applicable legal prohibition. The fact that the President—let alone a significantly inferior executive officer—opines that certain conduct is lawful does not determine the actual lawfulness of that conduct. The determination of specific violations of law is constitutionally committed to the courts, even if.that law touches military affairs. Cf., e.g., Gilligan v. Morgan,
Of course the fact that a claim is justiciable under the political question doctrine says very little about that claim’s proce