A federal appeals court has cleared the way for a trial in a decade-old lawsuit accusing a military contractor of responsibility for torture of prisoners at the U.S.-run Abu Ghraib prison in Iraq, but one judge assigned to the case warned the ruling could have “dangerous” results.
The 4th Circuit Court of Appeals on Friday turned down a bid by one the contractor firm, CACI Premier Technology, to invoke sovereign immunity. That protection is typically reserved for U.S. government agencies that bars suits for money damages, except where Congress has waived that immunity.
The three-judge panel did not rule on whether or not CACI is entitled to “derivative” immunity as a result of its work for the U.S. government, but unanimously held that the issue was too muddled for the appeals court could resolve in advance of trial.
“Even if a denial of derivative sovereign immunity may be immediately appealable, our review is barred here because there remain continuing disputes of material fact with respect to CACI’s derivative sovereign immunity defenses,” Judge Henry Floyd wrote in an opinion joined by Judge Stephanie Thacker. “Given these continuing factual disputes, this appeal does not turn on an abstract question of law and is not properly before us.”
One of the jurists on the appeals panel, Judge Marvin Quattlebaum, agreed with the ruling dismissing CACI Premier’s appeal, but wrote separately to expressed concerns about subjecting government contractors to suit, particularly those handling assignments for the U.S. military.
“Our narrow interpretation of the collateral order doctrine in this case has taken us down a dangerous road,” Quattlebaum wrote. “This proceeding has allowed discovery into sensitive military judgments and wartime activities. It has also opened the door to an order that the United States has no sovereign immunity for claims that our military activities violated international norms—whatever those are.”
“These may seem like minor inconveniences given the conduct at issue has been uniformly condemned and because the defendant here is a private contractor. But while we have no jurisdiction to address them now, the implications from these proceedings are potentially quite significant,” Quattlebaum added.
The plaintiffs in the case filed suit in federal court in Alexandria, Virginia, in 2008, claiming that they suffered torture and other war crimes that were either carried out or aided by CACI employees.
CACI Premier could ask the full bench of the Richmond, Virginia-based 4th Circuit to take up the appeal. Such en banc rehearings are rarely granted. The contractor could also seek review or an emergency stay from the Supreme Court.
However, without some intervention by a higher court, the case will be returned for trial to U.S. District Court Judge Leonie Brinkema. She had ordered a trial to begin last April, but shelved that after the appeal was filed. Brinkema has ruled that a trial is needed in the case to resolve disputes over whether CACI broke the law or otherwise violated its contract, potentially voiding any immunity claim.
An attorney pressing the suit on behalf of the Iraqis, Baher Azmy of the Center for Constitutional Rights, welcome the decision and said a trial should go forward promptly.
“We hope this decision clears the last of the innumerable obstacles that had stood in the way of what our clients have wanted for over 10 years — to tell their story in an American court of law,” Azmy told POLITICO.
CACI spokespeople did not immediately respond to requests for comment on the ruling Sunday night.
In the decision Friday, the appeals judges disagreed about whether a denial of a sovereign immunity claim may be immediately appealed if the facts about it are clear. Floyd and Thacker seemed to indicate that such a claim couldn’t be appealed before a judge rules on the merits of a case, but Quattlebaum disagreed.
Floyd and Thacker are appointees of President Barack Obama. Quattlebaum was appointed by President Donald Trump. Brinkema is an appointee of President Bill Clinton.