The decision also opens “a veritable Pandora’s Box of threats to the United States that sovereign immunity was designed to protect,” including second guessing U.S. military decisions made during wartime operations, CACI told the U.S. Court of Appeals for the Fourth Circuit April 23.
A federal judge in Virginia disagreed in a novel ruling last month.
“There are some acts that are, as a matter of morality and reason, fundamentally wrong such that no state may authorize their commission nor immunize those involved in such acts from liability,” Judge
Brinkema’s sovereign immunity opinion, assuming it stands, would remove a major roadblock for torture survivors seeking remedies against the U.S. government, lawyers tracking the litigation say. It also may result in many other similar suits being filed.
“If this opinion becomes the law of the land—and the higher courts will decide that question—it raises the specter of a wave of litigation,” attorney Roderick L. Thomas of Wiley Rein LLP in Washington said. “That litigation could be brought against the United States, whether or not government contractors are involved or alleged torture is at issue.”
Jeffery M. Chiow of Rogers Joseph O’Donnell PC in Washington said he thinks Brinkema is correct and he wouldn’t expect the Fourth Circuit to overturn “one of the most complex, interesting and potentially consequential cases I have read.”
But, then again, a reversal over this “complicated and fraught question” wouldn’t be surprising either, he said.
CACI will have “an uphill battle on appeal” based on the high bar the Fourth Circuit has set for contractor immunity based on military directives in other contexts, said lawyer Lawrence S. Ebner of Capital Appellate Advocacy PLLC.
Intelligence Extracted, Torture Alleged
The plaintiffs filed their suit in 2008, alleging that, 15 years ago in Iraq, the defense contractor aided and abetted beatings with weapons, electric shocks, dog attacks, sleep deprivation, sexual humiliation, threats to family members, and stress positions that caused permanent physical damage.
The former Abu Ghraib prisoners want a jury to award them damages for their resulting physical and mental injuries. Brinkema’s March 22 ruling teed up a trial that had been slated to start this week. But the trial judge put the proceedings on hold so that the Fourth Circuit could weigh in on her “unprecedented” immunity ruling.
Any acts that were unlawful when committed are subject to judicial review regardless of whether they occurred under actual control of the military, the Fourth Circuit held.
After Brinkema took over the case on remand, CACI tried to shift blame to the military and 60 unnamed “actual alleged wrongdoers” by, in January 2018, filing a third-party complaint against the government.
The Justice Department moved to dismiss CACI’s claims. It argued that the Federal Tort Claims Act preserves U.S. immunity to any claim arising in a foreign country, and any claim arising out of combatant activities during wartime.
That the government used Abu Ghraib to extract intelligence to support counter-insurgency operations means the government is shielded from the claims, it said.
Brinkema rejected the argument, finding the government isn’t acting in a sovereign capacity when it commits acts that violate internationally agreed on norms, or so called jus cogens violations.
The government has impliedly waived immunity with respect to such violations by joining the community of nations and accepting the law of nations, Brinkema said. Genocide, murder, slavery, and torture all fall into this category.
Jus cogens “norms have developed as an expression of the international community’s recognition that all states are obligated, in their capacity as states, to respect certain fundamental rights of individuals,” Brinkema said.
But she also ruled that a 2007 settlement agreement with CACI allowed the U.S. to exit the case, leaving only the claims against the contractor to proceed.
Open Door But for How Long?
Advocates for the alleged torture victims said the ruling could result in more claims being litigated.
“After so many decisions shutting out survivors of U.S. government torture and abuse, this decision cracks the courthouse doors open for suits against the United States,” said attorney Dror Ladin of the American Civil Liberties Union.
Immunity arguments have been “roadblocks for people who suffered at the hands of U.S. officials since 9/11. To not be able to get courts to assess their claims is absurd,” said Scott Roehm, director of the Center for Victims of Torture in Washington.
But whether the ruling will be upheld on appeal is far from certain and lawyers say Brinkema’s ruling leaves much to litigate.
Few can doubt the universal condemnation of genocide, slavery, murder, and torture discussed in the opinion, but “an implied waiver of sovereign immunity for the indeterminate and evolving ‘fundamental rights of individuals’ certainly is fertile ground for litigation,” Thomas, of Wiley Rein, said.
“In perhaps a significant understatement in the opinion, the court notes that ‘the exact content of the set of jus cogens norms is debatable,’” he said.
Regardless of the appeal outcome, “it seems more likely than not that there would be a dissenting opinion,” Chiow said.
“Whoever loses would be inclined to take the Fourth Circuit’s decision to the Supreme Court, especially if there’s a dissent,” he said.
The Justice Department declined to comment in response to Brinkema’s ruling. But an appeal of its own is almost certain, said attorney Edmund M. Amorosi of Smith Pachter McWhorter PLC.
Steptoe & Johnson LLP and Law Offices of William D. Dolan, III, PC represent CACI.
The case is CACI Premier Tech. Inc. v. Al Shimari, 4th Cir., No. 19-1328, brief 4/23/19.
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