Suhail Najim Abdullah Al Shimari v. CACI Premier Tech., Inc.

• Decision Date: 21 October 2016
• Docket Number: No. 15-1831,15-1831
• Citation: 840 F.3d 147
• Parties: Suhail Najim Abdullah Al Shimari; Taha Yaseen Arraq Rashid; Salah Hasan Nusaif Al–Ejaili; Asa'ad Hamza Hanfoosh Al–Zuba'e, Plaintiffs–Appellants, and Sa'ad Hamza Hantoosh Al–Zuba'e, Plaintiff, v. CACI Premier Technology, Inc., Defendant–Appellee, and Timothy Dugan; CACI International, Inc.; L–3 Services, Inc., Defendants. Professors of Constitutional Law and Federal Courts; Juan E. Mendez, U.N. Special Rapporteur on Torture; Retired Military Officers; American Civil Liberties Union Foundation, Amnesty International, and Human Rights Watch; Alberto Mora, Former General Counsel, U.S. Department of the Navy; Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe Abdi Yousuf, Amici Supporting Appellants, Professional Services Council–The Voice of the Government Services Industry; Coalition for Government Procurement ; KBR, Inc., Amici Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

840 F.3d 147

Suhail Najim Abdullah Al Shimari; Taha Yaseen Arraq Rashid; Salah Hasan Nusaif Al–Ejaili; Asa'ad Hamza Hanfoosh Al–Zuba'e, Plaintiffs–Appellants,

and

Sa'ad Hamza Hantoosh Al–Zuba'e, Plaintiff,

v.CACI Premier Technology, Inc., Defendant–Appellee,andTimothy Dugan; CACI International, Inc.; L–3 Services, Inc., Defendants.

Professors of Constitutional Law and Federal Courts; Juan E. Mendez, U.N. Special Rapporteur on Torture; Retired Military Officers; American Civil Liberties Union Foundation, Amnesty International, and Human Rights Watch; Alberto Mora, Former General Counsel, U.S. Department of the Navy; Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe Abdi Yousuf, Amici Supporting Appellants,

Professional Services Council–The Voice of the Government Services Industry; Coalition for Government Procurement ; KBR, Inc., Amici Supporting Appellee.

No. 15-1831

United States Court of Appeals, Fourth Circuit.

Argued: May 12, 2016

Decided: October 21, 2016

ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, for Appellants. John Frederick O'Connor, Jr., STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellee. ON BRIEF: Katherine Gallagher, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York; Robert P. LoBue, PATTERSON BELKNAP WEBB & TYLER LLP, New York, New York; Shereef Hadi Akeel, AKEEL & VALENTINE, P.C., Troy, Michigan; Jeena Shah, CONSTITUTIONAL RIGHTS & INTERNATIONAL HUMAN RIGHTS CLINIC, Newark, New Jersey, for Appellants. Stephen I. Vladeck, Washington, D.C.; Charles S. Barquist, Los Angeles, California, Betre M. Gizaw, MORRISON & FOERSTER LLP, Washington, D.C., for Amici Professors of Constitutional Law and Federal Courts. Eric L. Lewis, A. Katherine Toomey, James P. Davenport, Waleed Nassar, LEWIS BAACH PLLC, Washington, D.C.; Melissa Hooper, HUMAN RIGHTS FIRST, New York, New York, for Amici Retired Military Officers. Dror Ladin, Hina Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union Foundation, Amnesty International, and Human Rights Watch. George M. Clarke, III, BAKER & MCKENZIE LLP, Washington, D.C.; Alberto Mora, Carr Center For Human Rights Policy, HARVARD KENNEDY SCHOOL, Cambridge, Massachusetts, for Amicus Alberto Mora. William J. Aceves, CALIFORNIA WESTERN SCHOOL OF LAW, San Diego, California; Deena R. Hurwitz, International Human Rights Law Clinic, AMERICAN UNIVERSITY, Washington, D.C., for Amicus Juan E. Mendez. L. Kathleen Roberts, Nushin Sarkarati, THE CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California; Michael E. Tigar, Oriental, North Carolina; Ali A. Beydoun, UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Washington, D.C., for Amici Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe Abdi Yousuf. Lawrence S. Ebner, Lisa N. Himes, Tami Lyn Azorsky, Jessica C. Abrahams, DENTONS US LLP, Washington, D.C., for Amici Professional Services Council–The Voice of the Government Services Industry, and Coalition for Government Procurement. Raymond B. Biagini, Daniel L. Russell Jr., Herbert L. Fenster, COVINGTON & BURLING LLP, Washington, D.C., for Amicus KBR, Incorporated.

Before KEENAN, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge Keenan

wrote the opinion, in which Judge Floyd and Judge Thacker joined. Judge Floyd wrote a separate concurring opinion.

BARBARA MILANO KEENAN

, Circuit Judge:

Suhail Al 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., 758 F.3d 516 (4th Cir. 2014)

(Al Shimari III). We will review here only the facts relevant to the present appeal.

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 interrogation related to intelligence gathering. Due to a shortage of military interrogators, the United States government entered into a contract with CACI to provide additional interrogation services at Abu Ghraib.

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, 758 F.3d at 521

(citing Maj. Gen. Antonio M. Taguba, Article 15–6 Investigation of the 800th Military Police Brigade 16 (2004) (Taguba Report)). Department of Defense investigators concluded that CACI interrogators as well as military personnel engaged in such abusive conduct. Id.(citing Taguba Report at 48 and 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)). Numerous service members were disciplined administratively or punished under military law by court martial for conduct related to these acts. Some service members received significant terms of imprisonment for their role in these offenses.

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...