Former Abu Ghraib Detainees Appeal Political Question Dismissal Of Suit Against War-Zone Contractor

Iraqi citizens who claim that they were abused by civilian government contractor employees who helped the US military interrogate detainees at Abu Ghraib prison following the US invasion in 2003 are appealing a federal district court's dismissal of their damages suit. On June 24, 2015, after eight years of litigation—including two prior appeals to the US Court of Appeals for the Fourth Circuit (the first of which involved the court's en banc review)—Judge Gerald Bruce Lee of the US District Court for the Eastern District of Virginia entered judgment dismissing the suit on the ground that it is nonjusticiable under the political question doctrine. Al Shimari v. CACI Premier Tech., Inc., No. 1:08-cv-00827-GBL-JFA, 2015 WL 4740217 (E.D. Va. June 18, 2015). The Fourth Circuit docketed the current appeal, No. 15-1831, on July 28, 2015.

"The political question doctrine is a 'function of the separation of powers,' and prevents federal courts from deciding issues that the Constitution assigns to the political branches, or that the judiciary is ill-equipped to address." Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 531 (4th Cir. 2014) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). It is a threshold, jurisdictional defense, which government contractors that provided a wide variety of combat-zone services to the US military in Iraq and Afghanistan have raised with mixed success when seeking pretrial dismissal of wrongful death, personal injury, and other types of private-party tort suits that sovereign immunity precludes if brought against the United States. Early in 2015, the Supreme Court declined to review three appeals that squarely raised the political question issue in the context of "battlefield contractor" litigation. See In re KBR, Inc., Burn Pit Litig., 744 F.3d 326 (4th Cir. 2014); cert. denied sub nom. Metzgar v. Kellogg Brown & Root Servs., Inc., 135 S. Ct. 1153 (2015); Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458 (3d Cir. 2013), cert. denied, 135 S. Ct. 1152 (2015); McManaway v. Kellogg Brown & Root Servs., Inc., 554 F. App'x 347 (5th Cir. 2014), cert. denied, 135 S. Ct. 1153 (2015).

In Al Shimari, the district court, before any discovery was conducted, initially declined to dismiss the suit on political question grounds. A three-judge Fourth Circuit panel reversed, but on rehearing, a divided en banc Fourth Circuit refused, for lack of appellate jurisdiction, to hear CACI's interlocutory appeal of the district...