Commentary

Contractor Legal Immunity and the “Political Questions” Doctrine

By David Isenberg
This article appeared in the Huffington Post on January 19, 2010.

Last fall an article was published last fall in Military Law Review by Maj. Chad Carter, an Air Force Judge Advocate.

The article “Halliburton Hears A Who? Political Question Doctrine Developments in the Global War on Terror and Their Impact on Government Contingency Contracting contests legal popular wisdom that the “political question doctrine” means that tort claim cases by military members and U.S. civilians injured in Iraq and Afghanistan must not proceed.

One can easily see why most defense contractors, including private military and security firms working under U.S. government contract, would like to prevent such suits from proceeding. The sheer number of injuries alone gives them reason to want to avoid possible suits. According to ProPublica as of last September 30 the number of private contractors injured in Iraq and Afghanistan totaled 37,652. Of course, not all those injuries are the result of something done wrong. But even a small fraction of them would entail considerable legal costs for a contractor so it is easy to understand why they would want to preventing such suits from being filed in the first place.

As I am not a lawyer the following is derived from Maj. Carter’s article.

Traditionally, the reason given for this is that such cases may involve “political questions” that the Judicial Branch is ill-equipped to decide. Thus defense contractor advocates claim these actions must be dismissed, else there be grim consequences for Government contingency contracting.

But according to Maj. Carter, “the recent developments in political question doctrine case law are significant to the future of Government contingency contracting. However, they are not catastrophic — although portrayed as such by some defense contractor advocates. There will not be an explosion of contracting costs passed on to the Government. There will not be a mass refusal of defense contractors to accept contingency contracts. There will not be chaos on the battlefield. Such predictions are nothing more than “bellowing bungle.”

Carter wrote:

What is the political question doctrine? According to Chief Justice John Marshall, “[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in [the U.S. Supreme Court].” In 2004, the Court held “[s]ometimes .. . the law is that the judicial department has no business entertaining [a] claim of unlawfulness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights. Such questions are said to be ‘nonjusticiable,’ or ‘political questions.’”

What this means is that traditionally courts have deferred to the political branches in matters of foreign policy and military affairs. Policy decisions regarding the employment of U.S.military forces in combat belong to the political branches, not the courts. The Supreme Court has held that, due to their “complex, subtle, and professional” nature, decisions as to the “composition, training, equipping, and control of a military force” are “subject always” to the control of the political branches.

Tort suits that challenge the internal operations of these areas of the military are likely to be dismissed as political questions. Yet, notwithstanding the foregoing prohibitions on judicial conduct, the Supreme Court has cautioned, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” As mentioned earlier, vast precedent exists for judicial involvement in foreign and military affairs. Case law establishes that military decisions are reviewable by federal courts. An assertion of military necessity, standing alone, is not a bar to judicial action. Merely because a dispute can be tied in some way to combat activities does not prevent a court from reviewing it. Although an action arises in a contingency environment, if a case is essentially “an ordinary tort suit” it is well within the competence of the courts to entertain. Courts have underscored the point: no litmus test exists that prohibits judicial action merely because an issue involves the military in some fashion.

Where plaintiffs seek only damages and not injunctive relief, such cases are “particularly judicially manageable.” When such a damages-only lawsuit concerns only a defense contractor (as opposed to the Federal Government), courts have held that such actions do not involve “overseeing the conduct of foreign policy or the use and disposition of military power.” Thus, those actions are less likely to raise political questions than suits against the Government, suits seeking injunctive relief, or both.

Given the enormous amount of money involved in Government contingency contracting and the correspondingly large number of contractors and contractor employees performing GWOT (Global War on Terror) contingency contracts, the number of plaintiffs seeking redress for tortious conduct was certain to rise — and it did. Universally, defendant defense contractors invoked the political question doctrine in order to shield themselves from liability in their performance of GWOT contracts, some with more success than others. The first significant case centered around the tragic events at the Abu Ghraib prison in Iraq.

In Ibrahim v. Titan Corp., Iraqi plaintiffs alleged they were tortured, raped, humiliated, beaten, and starved while in U.S. custody. Apparently fearing a dismissal on sovereign immunity grounds if they sued the U.S. Government, the plaintiffs instead chose to name as defendants the contractors who provided interpreters and interrogators for the prison. The defendants filed a motion to dismiss, alleging the matter involved political questions. The court held the case should not be dismissed at such an early stage on political question grounds, especially because the United States was not a party to the case. Ibrahim is significant because it was the first GWOT case to underscore the need for full factual development of a case prior to an assessment of justiciability.

One particularly interesting point in Carter’s article is this:

Judges and scholars openly speculate about the possible consequences of defense contractor tort liability on the federal procurement process. In Boyle, the Supreme Court warned that “[t]he financial burden of judgments against [] contractors would ultimately be passed through, substantially if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover, or to insure against, contingent liability … .”

Since private military contracting advocates claim that their firms are more cost effective than the government one might reasonably believe that they can be so only by preventing tort suits against them. If the cost of such suits were factored in, the presumed cost effectiveness could conceivably be significantly less, or perhaps not exist at all.

Carter asks “is the situation really this dire? Are contractors at a point where, because of increased litigation risks, they will be forced to charge the Government more for their services or elect to not provide services altogether?”

The answers may not be far away. In November 2008, Joshua Eller filed suit in the U.S. District Court for the Southern District of Texas, as a result of injuries he suffered at Balad Air Base, Iraq, while deployed as a contractor employee of KBR from February to November of 2006. The complaint alleges defendants KBR and Halliburton “intentionally and negligently exposed thousands of soldiers, contract employees and other persons to unsafe water, unsafe food, and contamination due to faulty waste disposal systems … .” The complaint also includes allegations of injury from toxic smoke which emanated from an open air burn pit at Balad. The complaint alleges approximately 1,000 other individuals suffered similar injuries and it seeks to combine all of those actions into a single class action lawsuit. More significantly, this action is only one of several suits currently pending that relate to similar KBR activities in Iraq.

The political question doctrine will be a major factor in this coming storm of litigation. With the large number of potential plaintiffs compounded by the seriousness of the conduct and injuries alleged, these suits have the potential to dwarf the damages awards previously sought in earlier GWOT cases. Undoubtedly, KBR will seek to raise the political question doctrine as an absolute bar to these and any similar suits.

Defense contractor advocates warn of “deleterious effects” to the mission and the contractor — military relationship if tort suits against war zone defense contractors are allowed to proceed. They argue such tort claims “frustrate” and “conflict with” the Government’s ability to control contingency operations and would result in compromised logistical support and mission jeopardy. Furthermore, many companies, especially smaller ones, could be deterred from seeking contingency contracts. For those contractors who do elect to proceed, they will seek to insulate themselves from liability by either self-insuring or obtaining insurance coverage, if it is available. The argument continues that such costs will then be passed onto the Government in the form of higher contract prices. But, most alarmingly, some defense contractor advocates claim the impact of such suits “would be far more profound than financial” and defense contractors may, out of a fear of being sued, refuse to follow the military’s instructions altogether.

To this Carter writes:

the consequences predicted by defense contractor advocates vastly overstate the actual impact these GWOT tort suits will have on Government contingency contracting. Several reasons exist for this contention. First, the Government currently pays far too much money to defense contractors overseas for them to now decline performance of contingency contracts. The alleged dramatic price increases in U.S. Government contracts due to the increased litigation risk are unlikely as well. Contract prices may rise to some degree, but the Government can ill afford to refuse to pay them. Second, the U.S. military does not own the internal means to provide the goods and perform the services contracted for in a contingency environment — such goods and services are necessary for mission accomplishment. Finally, as discussed earlier, apart from the political question doctrine, defense contractors who face allegations of tortious conduct in a contingency environment have several legal defenses and other alternatives to limit or avoid liability, including insurance. Viewed together, these points counter forecasts of the impending ruin of Government contingency contracting.

With their recent activity involving the political question doctrine, courts have hardly thrust open the floodgates to litigation. Rather, they have properly focused their attention on protecting military decision-making and policy from judicial intrusion, and limited their rulings accordingly. For those suits that do not question military decisions or policy, they will move forward (at least without political question problems). This may or may not cause an increase in contractor costs due to higher insurance premiums related to tort damages, which could then be conveyed to the U.S. Government in the form of higher prices. However, the political question doctrine’s purpose is not to inhibit the principles of accountability inherent in the American tort law system. For those who wish to change this system, they should look instead toward the political branches or state governments for relief. These entities have in their arsenals statutes, regulations, and other mechanisms more appropriate for change. Such methods are much more apt for this purpose than reliance on a mutation of the political question doctrine into a form beyond its established limits.

To argue that Government contingency contracting will break down unless the political question doctrine extends to all tort suits brought against combat zone defense contractors is disingenuous. Alarming predictions of compromised logistics and mission failure grossly exaggerate the effect of these GWOT tort suits on combat zone contractors and Government contingency contracting. Such hyperbole ignores the reality and degree of the U.S. Government’s financial commitment to and dependency on contingency contracting in Iraq and Afghanistan. Finally, even if the consequences to the DoD procurement system are as dire as defense contractor advocates have alleged, the political branches are in a much more appropriate position to remedy them and can do so much more immediately and effectively.

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.