Wissam Abdullateff Sa’eed Al-Quraishi, et al., Plaintiffs v. Adel Nakhla, et al., Defendants
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||United States District Court for the District of Maryland, Greenbelt Division, United States
||29 July 2010
- Wissam Abdullateff Sa’eed Al-Quraishi and 71 other individuals
- Adel Nakhla
- L-3 Services, Inc. (formerly Titan Corporation)
||Torture, War crimes
||Abu Ghraib; accountability (private contractors); Alien Tort Claims Act; immunity; torture; war crimes
In March 2003, a military coalition led by the U.S. invaded Iraq and toppled the regime of President Saddam Hussein. Coalition forces remained in Iraq as an occupying force, engaging in the process of rebuilding the country. During the occupation, the US military contracted with several private military contractors for a wide array of services the US military simply had no manpower for, due to the implications of the occupation and rebuilding process. The use of these contractors has led to certain controversy, mainly because of multiple instances where they were hired to supervise detention centres or to provide security services and ended up torturing or unlawfully killing civilians. These practices led to three big law suits by groups of Iraqis who had allegedly been tortured in prisons guarded and/or maintained by private contractors: Saleh v. Titan Corp., Al-Shimari v. CACI Inc., and the current case Al-Quraishi v. Nakhla & L-3 Services Inc.
The current case revolves around L-3 Services, Inc., a U.S. company that was hired to provide civilian translators of Arabic in connection with military operations. These translators worked at, among other places, military prisons and detention facilities in Iraq, such as the Abu Ghraib prison – notorious for the torturing of detainees – just outside of Baghdad. Adel Nakhla, a U.S. citizen from Egyptian origin, was one of the translators working for L-3 Services at Abu Ghraib. Plaintiffs – 72 Iraqis who were arrested between July 2003 and May 2008 by coalition forces and held for periods varying from less than a month to more than four years at various military-run detention facilities in Iraq, including the Abu Ghraib prison – alleged that they were innocent and that they were eventually released from custody without being charged with any crimes. They filed a complaint before the U.S. District Court for Maryland, accusing L-3 Services and its employees (including Nakhla) of war crimes, torture and other (systematic) maltreatment committed against them during their custody. These abuses included beatings, hanging by the hands and feet, electrical shocks, mock executions, dragging across rough ground, threats of death and rape, sleep deprivation, abuse of the genitals, forced nudity, dousing with cold water, stress positions, sexual assault, confinement in small spaces, and sensory deprivation. They also alleged that their individual mistreatment occurred as part of a larger conspiracy involving L-3 Services and its employees, certain members of the military, and other private contractors. L-3 Services and Nakhla responded with motions to dismiss, arguing that they were immune from prosecution and, relying on the political question doctrine, that the Court had no competence to hear the complaint.
The Court disagreed with defendants. On 29 June 2010, it rejected the motions to dismiss, noting that the alleged behaviour violated national and international law and that defendants, who were private contractors, could not rely on the political question doctrine. The case was deferred for further review under Iraqi law.
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On 30 June 2008, Al-Quraishi et al. filed a complaint and jury trial demand against Adel Nakhla, L-3 Services, Inc., CACI International Inc. and CACI Premier Technology, Inc. at the US District Court for Maryland, Greenbelt Division.The plaintiffs moved to dismiss CACI from the action on 11 August, and amended their complaint on 5 September 2008. Three days later, L-3 Services filed a motion to transfer venue to the Eastern District of Virginia. Plaintiffs filed a second amended complaint on 1 October 2008 and opposed L-3 Services’ motion to transfer on 2 October 2008. On 17 October 2008, L-3 Services replied to the plaintiffs’ response to the motion to transfer. Plaintiffs’ motion to amend the complaint was granted on 12 November 2008; Nakhla and L-3 Services filed separate motions to dismiss on 26 November 2008. On 2 January 2009, plaintiffs filed responses in opposition to defendants’ motions to dismiss, to which L-3 Services and Nakhla filed their counterarguments on 26 January 2009. The first hearing on the motions to dismiss the case took place on 9 March 2009.
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L-3 Services filed a notice of appeal on 4 August 2010 (followed by Nakhla on 6 August 2010) against the District Court’s rejection of the motion to dismiss, asserting that the Court has jurisdiction over the appeal pursuant to the collateral order doctrine. Appeal briefs were filed by defendants on 2 September 2010 and by plaintiffs on 22 September 2010. Earthrights International intervened on the 28 September 2010 with an amicus curiae brief in support of plaintiffs’ claim, and defendants answered with a reply brief on 30 September 2010. Oral arguments were heard on 26 October 2010, and the trial continued until the Court issued an order staying the proceedings pending resolution of the petition for a writ of certiorari filed in the Supreme Court in Saleh et al. v Titan et al., since the questions the petition brought before the Supreme Court were important for the current case: whether ATS claims for torture and other war crimes can be brought against private actors, and whether a previous court in Saleh et al. v. Titan et al. had correctly established the "battle-field pre-emption doctrine”, which extends derivative sovereign immunity to private contractors.
The petition for certiorari was denied on 27 June 2011, without answering the questions. Therefore, on 21 September 2011, the US Appeals Court for the Fourth Circuit granted the appeal and rejected the District Court’s judgment in the current case, accepting the ruling in Saleh et al. v. Titan et al. that U.S. federal law protects civilian contractors acting under control of the U.S. military in a combat situation, and thus pre-empted the plaintiffs' tort claims. It should be noted that the pre-emption doctrine’s analysis was developed in the similar case Al-Shimari v. CACI International; the judgment in this case was issued on 21 September 2011 as well, and the Court in the case of Al-Quraishi mainly referred to the Al-Shimari case for the analysis. Plaintiffs responded with a petition for rehearing en banc (i.e. before the whole bench of judges instead of a panel), which was granted on 8 November 2011. Oral arguments were scheduled for January 2012; meanwhile, amicus curiae briefs were filed on 20 December 2011 by Earthrights International, other human rights organisations and legal experts, and retired military officers, all supporting plaintiffs and rejecting defendants’ foreign affairs pre-emption argument. The US Department of Justice, on the other side, filed an amicus curiae brief in support of defendants on 14 January 2012. Plaintiffs-appellants replied six days later. Oral arguments were held on 27 January 2012 (which can be heard here).
The en banc judgment (in which the Al-Quraishi and Al-Shimari cases were joined) was issued on 11 May 2012: the Court rejected the appeal because it lacked subject-matter jurisdiction. L-3 Services eventually agreed to settle the case, and the case was voluntarily dismissed on 5 October 2012. In January 2013, L-3 Services paid a 5 million dollar settlement.
The Al-Shimari case against CACI continued, resulting in a dismissal because the alleged abuse had taken place overseas; as such, the Court ruled on 25 June 2013 that it lacked jurisdiction to decide the case. Consequently, CACI initiated proceedings against the former detainees, seeking legal expenses.
On 30 June 2014, the Fourth Circuit Court of Appeals ruled that victims of abuse in Abu Ghraib prison could pursue legal claims against private military contractors, overturning the 2013 decision that had barred the survivors from suing U.S. corporations involved in the torture in U.S. courts.
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On 18 June 2015, an Order of the District Court of Virginia dismissed the case, concluding that CACI’s actions were controlled by the U.S. military and that assessing torture and war crimes claims would require an impermissible review of the military’s judgment, and thus the issues in the case present a “political question” that the judiciary cannot appropriately answer. The Center for Constitutional Rights (CCR) appealed the dismissal to the Fourth Circuit Court of Appeals. Six amicus briefs were filed with the Fourth Circuit Court of Appeals on 28 September 2015 in support of Al Shimari and the 3 other appellants.
Legally relevant facts
All 72 plaintiffs – Iraqi citizens who were formerly detained for significant periods of time without charge at military prisons in Iraq, including Abu Ghraib –sued L-3 Services, a military contractor which provided civilian translators for US military forces in Iraq, and Nakhla, a former employee of L-3 Services who served as one of its translators there. The complaint asserted twenty causes of action, alleging that defendants had – in various forms of participation, either directly or in conspiracy – tortured, sexually assaulted and otherwise physically and mentally abused plaintiffs during their detention, that L-3 Services had been negligent in its hiring of personnel, and that defendants should be held liable for these crimes (which partly qualify as war crimes) under the Alien Tort Statute (ATS), in damages for their actions (pp. 1-2). Defendants replied by filing motions to dismiss (MTDs) on a number of grounds. They argued that the suit had to be dismissed because they were immune under the laws of war, because the suit raised non-justiciable political questions, and because they possess derivative sovereign immunity. Furthermore, they were seeking dismissal of that part of the claims which was based on state law (as opposed to international law) on the basis of government contractor immunity, premised on the notion that plaintiffs cannot proceed on these state law claims which arise out of combatant activities of the military. Defendants also argued that none of the causes of action were cognisable under the ATS since none of their actions had violated the law of nations, a requirement of the ATS. They further contended that the state law claims were governed by the substantive law of Iraq which makes them immune from suit or, if not immune, that at least some of the claims were not cognisable under Iraqi law (because the Coalition Provisional Authority – the governmental body established by the U.S. and U.K. during their occupation of Iraq – provided in its Order Number 17 that coalition contractors shall be immune from Iraqi Legal Process with respect to acts performed by them within their official activities, see pp. 84-85). And lastly, defendants asserted that plaintiffs failed to plead sufficient facts in support of their claims of conspiracy and aiding and abetting in war crimes and torture (p. 2).
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Core legal questions
The questions to be answered by the Court were those pertaining from the MTDs of Nakhla and L-3 Services. Thus, in order to decide whether plaintiffs’ claims must be dismissed, it must be seen whether defendants were immune from suit under US and Iraqi law, and, if they were not immune, whether the claims actually fulfilled all requirements for ATS applicability?
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Specific legal rules and provisions
Federal Rules of Civil Procedure, 2009, United States:
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Court's holding and analysis
The Court first established that, on the facts alleged, defendants’ actions arguably violated the laws of war and that they were therefore not immune from suit under the laws of war. Defendants’ referral to the political question doctrine was rejected, because the case entailed a suit against private actors and was not directed against a certain government policy; hence, the separation of powers (which the political question doctrine is meant to protect) was not compromised. Moreover, ‘[d]efendants’ alleged actions appear to be squarely at odds with the policies and judgments of the political branches’ (p. 31). Derivative sovereign immunity was rejected as well because the Court found itself unable to determine from the complaint alone that defendants were acting within the scope of their contracts with the U.S. (as required by the defence). The Court further rejected the argument of government contractor immunity: defendants’ asserted premise for the defence, namely that the claims arise out of combatant activities of the military, was neither a valid basis for the defence in itself, nor true in the light of the aforementioned about the defendants’ actions being contrary to government policy (pp. 46-47).
With regard to the ATS, the Court ruled that – contrary to what defendants alleged – plaintiffs’ claims did constitute recognised violations of the law of nations indeed, which were appropriately asserted against defendants. Furthermore, the Court also ruled that although defendants are private actors (individuals and corporations), the ATS was nevertheless applicable in case of war crimes (pp. 52, 67). Their private nature would have made torture – which per definition can only be committed by state actors or by those who act under the color of law – fall outside the scope of the ATS (p. 59). However, defendants fulfilled ‘a function that has been traditionally and exclusively reserved to the sovereign’ (p. 61) and as such, the Court ruled that they were acting for the state or “under color of law” (p. 65). It is important to note that ‘[s]ince color of law jurisprudence encompasses individual behavior and not just official behavior, there is no contradiction in finding that Defendants acted under color of law but that their actions were personal and not official actions. Plaintiffs [were seeking] redress from private defendants, as opposed to the U.S. Government. That Defendants may have acted under color of law does not trigger sovereign immunity and does not require dismissal on that basis’ (p. 67).
As for plaintiffs’ state law claims, the Court found that they were governed by Iraqi law; however, without referring to information outside the complaint (in particular defendants’ contracts) the Court was unable to determine at the time whether defendants qualified for immunity under Iraqi law. Accordingly, as to this latter argument, as well as to the question of whether plaintiffs’ claims were cognisable under Iraqi law, the Court deferred the decision pending discovery. And finally, the Court ruled that plaintiffs had set forth sufficient facts to support their claims of conspiracy and aiding and abetting. The motions to dismiss were denied on 29 July 2010.
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Center for Constitutional Rights, 'Corporations & Torture in Prisons in Iraq. The cases against Titan/L-3 and CACI'.
Center for Constitutional Rights, ‘Al-Quraishi et al v. Nakhla et al.’.
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About the legal standard for review of a motion to dismiss, see also Al-Aulaqi v. United States.
For the dismissal of defendants’ argument that under the laws of war, aliens detained abroad by the military cannot sue for damages for treatment arising out of their confinement, the Court emphasised that in Johnson v. Eisentrager (upon which defendants relied) the circumstances were substantially different from those in the current case. The Court pointed out that the scope of Johnson v. Eisentrager had been significantly narrowed and brought up-to-date in the 2004 Rasul v. Bush and 2008 Boumediene v. Bush cases (pp. 7-17).
With regard to the rule for a suit to be barred under the political question doctrine, plaintiffs must “challenge official policies and directives that were established by the executive branch and are consequently non-reviewable by the judiciary” (as well as for many of the immunity-related issues), the Court referred to the cases Al Shimari v. CACI Premier Technology, Inc. and Saleh v. Titan Corp., similar cases about abuse and torture of Iraqi detainees (inter alia, pp. 23-24, 40). And when considering the scope of applicability of the ATS, it was noted that the Court had held in Sosa v. Alvarez-Machain that the ATS “creates no causes of actions but is jurisdictional only, and that federal common law, which incorporates the law of nations, provides the causes of action” (pp. 48-49). The seminal rule that renunciation of torture as instrument of state policy does not strip the tort of its character as an international law violation, if it had, in fact, occurred under color of government authority, as established inFilartiga v. Peña-Irala, was mentioned as well (p. 66); and so was Vietnam Association for Victims of Agent Orange v. Dow Chemical Co. for the remark that corporations can very well be held liable under the ATS (p. 68).
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D. Jurand, ‘Ex-Abu Ghraib Detainees Sue Military Contractors for Torture’, Jurist, 1 July 2008.
D. Arce, ‘Federal Judge Allows Iraqis' Suit against Military Contractors to Proceed’, Jurist, 5 August 2010.
S. Lendman, ‘Torturer Lawsuits - Some Good News’, Rense.com, 11 July 2012.
The Center for Constitutional Rights, 'Abu Ghraib Torture Survivors Fight on Against Military Contractors', The Huffington Post, 6 November 2013.