Wissam Abdullateff Sa’eed Al-Quraishi, Plaintiff-Appellee v. L-3 Services, Defendant-Appellant and Adel Nakhla, et al., Defendants; and Wissam Abdullateff Sa’eed Al-Quraishi, Plaintiff-Appellee v. Adel Nakhla, Defendant-Appellant and L-3 Services, et al., Defendants.

Court	United States Court of Appeals for the Fourth District, United States
Case number	10-1891; and 10-1921
Decision title	Opinion
Decision date	21 September 2011
Parties	Wissam Abdullateff Sa’eed Al-Quraishi CACI International, Incorporated CACI Premier Technology, Incorporated L-3 Services, Incorporated (formerly Titan Corporation) Adel Nakhla
Other names	Abu Ghraib torture case
Categories	Torture, War crimes
Keywords	Abu Ghraib; accountability (private contractors); Alien Tort Claims Act; immunity; torture; war crimes
Links	Opinion
Other countries involved	Iraq

Summary

Following the 2003 invasion of Iraq, the U.S. military took control of the Abu Ghraib prison located near Baghdad, using it to detain criminals, enemies of the provisional government, and other persons thought to possess information regarding the anti-Coalition insurgency. The U.S. contracted with CACI International, Incorporated (with CACI Premier Technology, Incorporated, together referred to as CACI), and Titan Corporation, now L-3 Services, Incorporated (L-3), to provide civilian employees to assist the military in communicating with and interrogating the latter group of detainees. The use of these contractors has led to certain controversy, mainly because of multiple instances where they ended up torturing or unlawfully killing people. 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 Al-Quraishi v. Nakhla & L-3 Inc.

The current case revolves around L-3, 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 US citizen from Egyptian origin, was one of the translators working for L-3 at the Abu Ghraib prison. 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 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 allege that their individual mistreatment occurred as part of a larger conspiracy involving L-3 and its employees, certain members of the military, and other private contractors. L-3 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 rejected the motions on 29 June 2010, 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.

Defendants appealed the decision to reject their motions, to which plaintiffs responded that U.S. appeals courts have no jurisdiction to rule on their appeals since the underlying case was not decided yet. The U.S. Court of Appeals for the Fourth District disagreed: it found that the current issue was of great public importance so that, since the District Court had given a final decision on defendants’ immunity, it was entitled to jurisdiction. Now that it could exercise jurisdiction, the Court of Appeals quashed the District Court’s decision in its entirety and remanded it with instructions for dismissal of plaintiffs’ claim.

Procedural history

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 2008, and amended their complaint on 5 September 2008. Three days later, L-3 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. L-3 Services replied to the plaintiffs’ response to the motion to transfer on 17 October 2008. Plaintiffs’ motion to amend the complaint was granted on 12 November 2008; Nakhla and L-3 filed separate motions to dismiss on 26 November 2008, arguing that they were immune from the law suit and that plaintiffs’ claim did not fall within the scope of the Alien Tort Statute (ATS). Plaintiffs filed responses in opposition to defendants’ motions to dismiss on 2 January 2009, to which L-3 Services and Nakhla filed their counterarguments on 26 January 2009. The Court issued its judgment on 29 July 2010, rejecting defendants’ motions to dismiss.

L-3 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 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 in this case was denied on 27 June 2011, without answering the questions.

Related developments

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 as well, and the Appeals Court in the underlying Al-Quraishi opinion for a large part relied on the Al-Shimari case’s 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 U.S. 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 eventually agreed to settle the case, and the case was voluntarily dismissed on 5 October 2012. In January 2013, L-3 Services Inc. 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.
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, a military contractor which provided civilian translators for US military forces in Iraq, and Nakhla, a former employee of L-3 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 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 ATS, in damages for their actions. 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 possessed derivative sovereign immunity. Furthermore, they sought dismissal of the part of the claims that is based on state 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 and that the state law claims were governed by the substantive law of Iraq which would make them immune from suit or, if not immune, that at least some of the claims were not cognisable under Iraqi law. 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 (see the decision on the motions to dismiss). The Court ruled on 29 July 2010, in short, that defendants’ actions arguably violated the laws of war and that they were therefore not immune from suit under the laws of war; that defendants were private entities and as such, were not protected by the political question doctrine or sovereign immunity; and that plaintiffs’ claim fell under the scope of the ATS.

Defendants appealed against the decision, arguing that they were entitled to immunity before the courts. Plaintiffs added an extra issue to the appeal. They challenged the Court’s jurisdiction to decide on the issues in L-3’s interlocutory appeal because, as they argued, the District Court’s 29 July 2010 decision was tentative and incomplete since the Court had deferred the making of a decision until completion of the discovery of all facts and applicable rules of Iraqi law. They maintained further that any immunity would depend on a resolution on the merits of aspects of the case, especially whether L-3 had complied with military instructions and commands. L-3 responded by stating that plaintiffs’ arguments overlooked the fact that the District Court’s opinion ‘included final determinations that "law of war immunity (i) does not apply to government contractors, (ii) does not apply to suits brought in U.S. courts, and (iii) does not extend to violations of the law of war.”’ (p. 5).

Core legal questions

The appeal concerned two main questions:

Is L-3 Services – or more in general: are private contractors like L-3 Services – entitled to immunity before U.S. courts; and
Is the Appeals Court competent to review the appeal at all, since the previous decision was not even a final decision on the case?

Specific legal rules and provisions

Federal Rules of Civil Procedure, 2009, United States:

Rule 12(b)(1) and (6) - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

Court's holding and analysis

The Court was quite brief on the first question: it ordered the first instance decision to be reversed and remanded, with instructions to dismiss this case for the reasons given in the appeals decision in Al-Shimari v. CACI International (issued on the same day, 21 September 2011), concluding that the plaintiffs’ state law claims were pre-empted and displaced by federal law, as articulated in Saleh, at pages 8-12 (p. 5).

The Court did spent some more time on the second question, which was unique to this appeal. As baseline for the discussion, the Court pointed out that jurisdiction of the courts of appeals ‘extends, as a general matter, only to appeals from "final decisions of the district courts of the United States"’. There are, however, certain practical exceptions to this rule: under the collateral order doctrine, ‘the courts of appeals have jurisdiction over an interlocutory appeal of an order that (1) conclusively determines a disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) would be effectively unreviewable on appeal from a final judgment’ (p. 6). Appeals under the doctrine are generally confined to cases involving a ‘particular value of a high order," including "honoring the separation of powers, preserving the efficiency of government and the initiative of its officials, [or] respecting a State’s dignitary interests’ (p. 7). A notable example where jurisdiction in appeals was established, was a case where Eleventh Amendment immunity was denied: ‘appealability is necessary to protect States’ immunity from suit and allow them to avoid both the burdens and the indignities of suit’. Similarly, ‘denial of qualified immunity is immediately appealable where it turns on a question of law because of the public interest in allowing government officials to take legitimate action "with independence and without fear of consequences"’ (p. 7).

The Court found that the case at hand fell within the scope of this narrow doctrine, for four reasons. First, the case presents substantial issues relating to federal pre-emption, separation-of-powers, and immunity that could not be addressed on appeal from final judgment. Allowing the case to proceed would allow judicial scrutiny of military policies and practices in a way that could not be remedied in an appeal from the final judgment. Second, the District Court had effectively determined in a conclusive and final way the question whether state tort law can be applied to a battlefield context, and just as immunity from suit must be recognised in the early stages of litigation in order to have its full effect, so must battlefield pre-emption in order to prevent judicial scrutiny of an active military zone. Third, the disputed questions were collateral to resolution on the merits, that is to say, the issues raised both here and in the District Court are entirely separate from the merits (namely, whether defendants had engaged in a conspiracy with military personnel to torture and abuse them and to cover up those actions). Finally, and perhaps most importantly, the federal pre-emption doctrine underlying the current opinion (as well as the opinion in Al-Shimari v. CACI) represents a strong public policy interest since wartime actions within a U.S. military prison were being challenged in a civilian court under state tort law (p. 8). More specifically, the Court emphasised (referring to Saleh v. Titan) that ‘the interest presented by this case is not simply to prevent liability for government contractors but, more broadly and importantly, the "elimination of tort from the battlefield, both to pre-empt state or foreign regulation of federal wartime conduct and to free military commanders from the doubts and uncertainty inherent in potential subjection to civil suit’ (p. 9). Plaintiffs’ challenge to the Court’s jurisdiction was rejected.