DOJ Files Amicus Brief in Fourth Circuit Contractor Torture Cases

By Steve Vladeck
Sunday, January 15, 2012, 1:51 PM

We've written previously about the Fourth Circuit's (upcoming) en banc rehearing of Al-Shimari v. CACI International, Inc. and Al-Quraishi v. L-3 Services, Inc., two decisions in which a three-judge panel threw out state-law tort claims arising out of torture at Abu Ghraib and other detention facilities in Iraq and Afghanistan on the ground that they were preempted by federal common law inferred from the "combat activities" exception to the Federal Tort Claims Act, following the D.C. Circuit's decision in Saleh v. Titan Corp., which I discussed in more detail in the prior post.

The federal government has now filed an amicus brief in the two cases, arguing (1) that the Fourth Circuit lacks jurisdiction to reach the merits of these cases because they are not subject to interlocutory appeal under the collateral order doctrine [if this argument is correct, then it would lead to the restoration of the district court's decisions allowing these suits to go forward]; and (2) that, on the merits, preemption is usually appropriate when it comes to claims against contractors arising out of the detention and interrogation of "enemy aliens in a U.S. military prison," but not in cases--such as these--where the underlying claim is "torture as defined by federal criminal law," and where there aren't other remedies available to deter torturous conduct by contractors. [The brief goes on to note subsequent developments that might obviate the need for such state-law remedies for abuses that occur today, but emphasizes that those remedies weren't in place at the time of the Abu Ghraib abuses.]

The whole brief is worth reading, but this strikes me as an important intervention by the Justice Department, especially on the second point. It may be that the government's position on the merits, if nothing else, is enough to convince a majority of the Fourth Circuit to rest on the jurisdictional defect, and to send these cases back to the district court for further proceedings...