The United States Court of Appeals for the Fourth Circuit has reversed a district court's ruling that a war crimes lawsuit brought by Iraqi nationals allegedly tortured by military contractors in 2003 and 2004 cannot go forward.

The claim alleged sundry acts of heinous abuse visited upon detainees at the infamous Abu Ghraib prison by United States military contractor CACI Premier Technology, Inc. (CACI). The litigation over the torture and war crimes allegations has been ongoing for over eight years, and has been before the Fourth Circuit four times.

In this instance, the district court dismissed the plaintiffs' lawsuit as a non-justiciable political question. According to the circuit court, "[t]he political question doctrine derives from the principle of separation of powers, and deprives courts of jurisdiction over 'controversies which revolve around policy choices and value determinations constitutionally committed to Congress or, as alleged in this case, to the executive branch." The district court concluded that the case amounted to a non-justiciable political question because the military controlled interrogation operations at Abu Ghraib, any resolution of the claim would require the court to improperly question sensitive military judgments, and it lacked the judicially manageable standards to resolve the claims.

The circuit court disagreed, finding that the district court failed to determine whether the United States military exercised "actual control" over any of CACI's conduct to begin with. Further, the court held that the military's control over CACI's actions, whether on paper or in actuality, would not render unlawful acts by CACI non-justiciable.

In essence, if CACI was under the actual control of the military, which, given the allegations of a "command vacuum" at Abu Ghraib seems unlikely, then lawful actions would be shielded from judicial review under the political question doctrine. However, if CACI acted unlawfully, which the plaintiffs certainly alleged, then no amount of control by the military could render the actions non-justiciable. This is because unlawful actions "[are] not based on 'military expertise and judgment,' and [are] not a function committed to a coordinate branch of government."

     "Accordingly," wrote the court, "when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."

The plaintiffs most certainly alleged unlawful acts committed by CACI personnel, but the court left it to the district court to determine what was lawful and what was not on remand.

"Among other things, the plaintiffs alleged that they were subjected to beatings, stress positions, forced nudity, sexual assault, and death threats, in addition to the withholding of food, water, and medical care, sensory deprivation, and exposure to extreme temperatures," wrote the court. "[O]n remand, the district court will be required to determine which of the alleged acts, or constellations of alleged acts, violated settled international law and criminal law governing CACI's conduct and, therefore, are subject to judicial review."

The court also dismissed the district court's concern over its lack of manageable standards for adjudicating this very complicated and politically charged case, in which the United States has thus far refused to even allow the plaintiffs to enter the country

"[C]ourts may not decline to resolve a controversy within their traditional competence and proper jurisdiction simply because the question is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches," noted the court.

The plaintiffs, Suhail Najim Abdullah Al Shimari, Taha Yaseen Arraq Rashid, Salah Hasan Nusaif Al-Ejaili, and Asa'ad Hamza Hanfoosh Al-Zuba'e were supported in their appeal by "friend of the court" briefs filed by 17 individuals and organizations, including Amnesty International, the American Civil Liberties Union and the U.N. Special Rapporteur on Torture.

Case:  Al-Shimari v. CACI Premier Technology, Inc., United States Court of Appeals for the Fourth Circuit, Case No. 15-1831 (October 21, 2016).

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