Interrogation: Interrogation Abuses: Civil Liability

A Few Notes on the al-Shimari Fourth Circuit En Banc Argument

By Steve Vladeck
Friday, February 3, 2012, 10:51 AM

I wasn't able to attend last Friday's oral argument before the en banc Fourth Circuit in the Abu Ghraib contractor suits (about which we've said quite a bit previously). But I thought I'd flag three helpful links for folks who are interested in how it went (and what's likely to happen from here):

  • Kevin Walsh from the University of Richmond, who did attend the argument, shares his reflections here.
  • The (long) oral argument audio is available here.
  • Ariane de Vogue from ABC has a thorough story, up today, reflecting on both the oral argument and the Obama Administration's ... delicate ... amicus brief in support of the plaintiffs.

Having listened to the argument, I remain of the view that the most likely outcome is that the Fourth Circuit ducks the merits by holding that, whatever the nature of the contractors' defense, it isn't an appropriate basis for an immediate interlocutory appeal under the collateral order doctrine (which would send these cases back to the district court barring a long-shot cert. petition on the jurisdictional issue). But if the en banc court does reach the merits, it seems more than a remote possibility that they'll disagree with the D.C. Circuit's Saleh decision--and that the question of whether military contractors operating overseas can be subject to state tort law will therefore be up before the Supreme Court as soon as this fall.