Saleh v. Titan Corp.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2009 Decided September 11, 2009

No. 08-7008

HAIDAR MUHSIN SALEH, ET AL.,
APPELLANTS

v.

TITAN CORPORATION,
APPELLEE

CACI INTERNATIONAL INC. AND CACI PREMIER
TECHNOLOGY, INC.,
INTERVENORS

Consolidated with 08-7009

Appeals from the United States District Court
for the District of Columbia
(No. 05cv01165)

Susan L. Burke argued the cause for appellants. With her
on the briefs were Katherine Gallagher, Shereef Hadi Akeel, and
L. Palmer Foret.

Ari S. Zymelman argued the cause for appellee. With him
on the brief were F. Whitten Peters, Kannon K. Shanmugam,
and F. Greg Bowman.
 2

J. William Koegel Jr. argued the cause for intervenors
CACI International Inc. and CACI Premier Technology, Inc.
With him on the brief was John F. O'Connor.

Before: GARLAND and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

Dissenting opinion filed by Circuit Judge GARLAND.

SILBERMAN, Senior Circuit Judge: Plaintiff Iraqi nationals
brought separate suits against two private military contractors
that provided services to the U.S. government at the Abu Ghraib
military prison during the war in Iraq. The district court granted
summary judgment in behalf of one of the contractors, Titan
Corp., on grounds that the plaintiffs’ state tort claims were
federally preempted. But the court denied summary judgment
on those grounds to the other contractor, CACI International Inc.
The court also dismissed claims both sets of plaintiffs made
under the Alien Tort Statute (which is appealed only by the
Titan plaintiffs) and reserved for further proceedings in the
CACI case that contractor’s immunity defense. We have
jurisdiction over this interlocutory appeal under 28 USC §§
1291 and 1292(b). We affirm the district court’s judgment in
behalf of Titan, but reverse as to CACI.
 3

I

Defendants CACI and Titan contracted to provide in Iraq
interrogation and interpretation services, respectively, to the
U.S. military, which lacked sufficient numbers of trained
personnel to undertake these critical wartime tasks. The
contractors’ employees were combined with military personnel
for the purpose of performing the interrogations, and the military
retained control over the tactical and strategic parameters of the
mission. Two separate groups of plaintiffs, represented by the
named plaintiffs Haidar Muhsin Saleh and Ilham Nassir
Ibrahim, brought suit alleging that they or their relatives had
been abused by employees of the two contractors during their
detention and interrogation by the U.S. military at the Abu
Ghraib prison complex. While the allegations in the two cases
are similar, the Saleh plaintiffs also allege a broad conspiracy
between and among CACI, Titan, various civilian officials
(including the Secretary and two Undersecretaries of Defense),
and a number of military personnel, whereas the Ibrahim
plaintiffs allege only that CACI and Titan conspired in the
abuse.

As we were told, a number of American servicemen have
already been subjected to criminal court-martial proceedings in
relation to the events at Abu Ghraib and have been convicted for
their respective roles. While the federal government has
jurisdiction to pursue criminal charges against the contractors
should it deem such action appropriate, see 18 U.S.C. §§ 2340A,
2441, 3261, and although extensive investigations were pursued
by the Department of Justice upon referral from the military
investigator, no criminal charges eventuated against the contract
employees. (Iraqi contract employees are also subject to
criminal suit in Iraqi court.) Nor did the government pursue any
contractual remedies against either contractor. The U.S. Army
 4

Claims Service has confirmed that it will compensate detainees
who establish legitimate claims for relief under the Foreign
Claims Act, 10 U.S.C. § 2734. Saleh pursued such a route,
succeeding in obtaining $5,000 in compensation, despite the fact
that the Army’s investigation indicated that Saleh was never
actually interrogated or abused.

While the terms “torture” and “war crimes” are mentioned
throughout plaintiffs’ appellate briefs and were used
sporadically at oral argument, the factual allegations in the
plaintiffs’ briefs are in virtually all instances limited to claims of
“abuse” or “harm.” To be sure, as the dissent emphasizes,
certain allegations in the complaints are a good deal more
dramatic. But after discovery and the summary judgment
proceeding, for whatever reason, plaintiffs did not refer to those
allegations in their briefs on appeal. Indeed, no accusation of
“torture” or specific “war crimes” is made against Titan
interpreters in the briefs before us. We are entitled, therefore to
take the plaintiffs’ cases as they present them to us. And
although, for purpose of this appeal, we must credit plaintiffs’
allegations of detainee abuse, defendants point out–and it is
undisputed–that government investigations into the activities of
the apparently relevant Titan employees John Israel and Adel
Nakhla suggest that these individuals were not involved in
detainee abuse at all. Other linguists mentioned in plaintiffs’
briefs–“Iraqi Mike,” Etaf Mheisen, and Hamza Elsherbiny–are
not alleged to have engaged in abuse involving the plaintiffs.
Steven Stefanowicz, alleged in one set of complaints to have
been an employee of Titan, was in fact an employee of CACI.
And only one specified instance of activity that would arguably
fit the definition of torture (or possibly war crimes) is alleged
 5

with respect to the actions of a CACI employee. Titan J.A. 567-
570.1

Plaintiffs brought a panoply of claims, including under the
Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et
seq., government contracting laws, various international laws
and agreements, and common law tort. In a thoughtful opinion,
District Judge Robertson dismissed all of the Ibrahim plaintiffs’
claims except those for assault and battery, wrongful death and
survival, intentional infliction of emotional distress, and
negligence. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C.
2005). Following our decisions in Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774 (D.C. Cir. 1984) (Edwards, J.,
concurring), and Sanchez-Espinoza v. Reagan, 770 F.2d 202
(D.C. Cir. 1985), the district court held that because there is no
consensus that private acts of torture violate the law of nations,

1
The Torture Victim Protection Act, § 3(b)(1), 28 U.S.C. § 1350,
defines “torture” as “any act, directed against an individual in the
offender’s custody or physical control, by which severe pain or
suffering (other than pain or suffering arising only from or inherent in,
or incidental to, lawful sanctions), whether physical or mental, is
intentionally inflicted on that individual for such purposes as
obtaining from that individual or a third person information or a
confession, punishing that individual for an act that individual or a
third person has committed or is suspected of having committed,
intimidating or coercing that individual or a third person, or for any
reason based on discrimination of any kind.” (emphasis added) See
Price v. Socialist People’s Libyan Arab Jamalhiriya, 294 F.3d 82, 91-
94 (D.C. Cir. 2002). There is an allegation that one of CACI’s
employees observed and encouraged the beating of a detainee’s soles
with a rubber hose, which could well constitute torture or a war crime.
 6

such acts are not actionable under the ATS’s grant of
jurisdiction. Ibrahim, 391 F. Supp. 2d at 14-15.2

As for the remaining claims, the district court found that
there was, as yet, insufficient factual support to sustain the
application of the preemption defense, which the defendants had
asserted. The judge ordered limited discovery regarding the
military’s supervision of the contract employees as well as the
degree to which such employees were integrated into the
military chain of command. Id. at 19. A year later, the district
court dismissed the federal claims of the Saleh plaintiffs. Saleh
v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006). The two sets
of cases were consolidated for discovery purposes.

Following discovery, the contractors filed for summary
judgment, again asserting that all remaining claims against them
should be preempted as claims against civilian contractors
providing services to the military in a combat context. In the
absence of controlling authority, the district judge fashioned a
test of first impression, according to which this preemption
defense attaches only where contract employees are “under the
direct command and exclusive operational control of the military
chain of command.” Ibrahim v. Titan Corp., 556 F. Supp. 2d 1,
5 (D.D.C. 2007) (emphasis added). He concluded that Titan’s
employees were “fully integrated into [their] military units,” id.
at 10, essentially functioning “as soldiers in all but name,” id. at
3. Although CACI employees were also integrated with military
personnel and were within the chain of command, they were
nevertheless found to be subject to a “dual chain of command”
because the company retained the power to give “advice and

2
The ATS reads, in its entirety, “the district courts shall have
original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United
States.” 28 U.S.C. § 1350.
 7

feedback” to its employees and because interrogators were
instructed to report abuses up both the company and military
chains of command. Id. The CACI site manager, moreover,
said that he had authority to prohibit interrogations inconsistent
with the company ethics policy, which the district court deemed
to be evidence of “dual oversight.” Id. Thus, the remaining tort
claims were held preempted as to Titan but not as to CACI. Id.

The losing party in each case appealed, and we heard their
arguments jointly. We thus have before us two sets of appeals.
The first consists of the Iraqi plaintiffs’ appeals from the district
court’s decision in favor of Titan on both the preemption and
ATS issues. The second features CACI’s appeals from the
district court’s denial of its motion for summary judgment on
the basis of preemption. We have jurisdiction pursuant to 28
U.S.C. § 1291 over the former. As to the latter, the district court
has certified its denial of summary judgment for immediate
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The
plaintiffs only half-heartedly object to the district judge’s
exercise of discretion under § 1292(b). Even if we were
inclined to withdraw this permission to appeal–which we are
not–we would still be required to rule on the appropriate test for
combatant activities preemption in the plaintiffs’ appeals against
the judgment for Titan. We also have jurisdiction over the
district judge’s dismissal of the ATS claim in the Titan case, but
not his corollary dismissal of the ATS claim in the CACI case;
the plaintiffs did not cross-appeal that decision.

We think the district judge properly focused on the chain of
command and the degree of integration that, in fact, existed
between the military and both contractors’ employees rather
than the contract terms–and affirm his findings in that regard.
We disagree, however, somewhat with the district court’s legal
test: “exclusive” operational control. That CACI’s employees
were expected to report to their civilian supervisors, as well as
 8

the military chain of command, any abuses they observed and
that the company retained the power to give advice and feedback
to its employees, does not, in our view, detract meaningfully
from the military’s operational control, nor the degree of
integration with which CACI’s employees were melded into a
military mission. We also agree with the district court’s
disposition of the ATS claim against Titan.

II

We conclude that plaintiffs’ D.C. tort law claims are
preempted for either of two alternative reasons: (a) the Supreme
Court’s decision in Boyle; and (b) the Court’s other preemption
precedents in the national security and foreign policy field.

***

Although both defendants assert that they meet the district
court’s “direct command and exclusive operational control” test
for application of the preemption defense, CACI disputes the
appropriateness of that test, arguing that it does not adequately
protect the federal interest implicated by combatant activities.
In CACI’s view, the wartime interests of the federal government
are as frustrated when a contractor within the chain of command
exercises some level of operational control over combatant
activities as would be true if all possible operational influence
is exclusively in the hands of the military. For their part, the
Iraqi plaintiffs agree with the district court’s finding that CACI
exerted sufficient operational control over its employees as to
have been able to prevent the alleged prisoner abuse and thus
that the company should be subject to suit. As to Titan,
plaintiffs argue that the district court overlooked critical material
facts, including allegations that Titan breached its contract and
that the military lacked the authority to discipline Titan
employees.
 9

As noted, both defendants asserted a defense based on
sovereign immunity, which the district court has reserved.
Presumably, they would argue that, notwithstanding the
exclusion of “contractors with the United States” from the
definition of “Federal agency” in the Federal Tort Claims Act
(“FTCA”)–which, of course, waives sovereign immunity–when
a contractor’s individual employees under a service contract are
integrated into a military operational mission, the contractor
should be regarded as an extension of the military for immunity
purposes. The Supreme Court in Boyle v. United Technologies
Corp., 487 U.S. 500 (1992), the primary case on which
defendants rely for their preemption claim, reserved the question
whether sovereign immunity could be extended to non-
governmental employees, id. at 505 n.1, even in a case where
the contractor provided a discrete product to the military.

We agree with the defendants (and the district judge) that
plaintiffs’ common law tort claims are controlled by Boyle.
There, a lawsuit under Virginia tort law was brought in federal
district court in behalf of a Marine pilot who was killed when his
helicopter crashed into the water and he was unable to open the
escape hatch (which opened out rather than in). The defendant
that manufactured the helicopter alleged that the door was
provided in accordance with Department of Defense
specifications and, therefore, Virginia tort law was preempted.
The Supreme Court agreed; it reasoned that first “uniquely
federal interests” were implicated in the procurement of military
equipment by the United States, and once that was recognized,
a conflict with state law need not be as acute as would be true if
the federal government was legislating in an area traditionally
occupied by the states.

Nevertheless, the court acknowledged that a significant
conflict must exist for state law to be preempted. In Boyle, the
court observed that the contractor could not satisfy both the
 10

government’s procurement design and the state’s prescribed
duty of care. It looked to the FTCA’s exemption to the waiver
of sovereign immunity for claims “based upon the exercise or
performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or employee of
the Government, whether or not the discretion involved be
abused,” 28 U.S.C. § 2680(a), to find a statutory provision that
articulated the “outlines” of the significant conflict between
federal interests and state law. Boyle, 487 U.S. at 511. Since
the selection of the appropriate design of military equipment
was obviously a governmental discretionary function and a
lawsuit against a contractor that conformed to that design would
impose the same costs on the government indirectly that the
governmental immunity would avoid, the conflict is created.

The crucial point is that the court looked to the FTCA
exceptions to the waiver of sovereign immunity to determine
that the conflict was significant and to measure the boundaries
of the conflict. Our dissenting colleague contends repeatedly
that the FTCA is irrelevant because it specifically excludes
government contractors. See Dissent Op. at 8, 15-16, 19. But,
in that regard, our colleague is not just dissenting from our
opinion, he is quarreling with Boyle where it was similarly
argued that the FTCA could not be a basis for preemption of a
suit against contractors. See Supplemental Brief of Petitioner at
10-11, 1988 WL 1026235; see also 487 U.S. at 526-27
(Brennan, J., dissenting). In our case, the relevant exception to
the FTCA’s waiver of sovereign immunity is the provision
excepting “any claim arising out of the combatant activities of
the military or armed forces, or the Coast Guard, during time of
war.” 28 U.S.C. § 2680(j).3 We note that this exception is even

3
Although the combatant activities exception was the only FTCA
exception briefed, it was suggested at oral argument that other
provisions could conceivably conflict with the plaintiffs’ claims,
 11

broader than the discretionary function exception. In the latter
situation, to find a conflict, one must discover a discrete
discretionary governmental decision, which precludes suits
based on that decision, but the former is more like a field
preemption, see, e.g., Clearfield Trust Co. v. United States, 318
U.S. 363, 366-67 (1943), because it casts an immunity net over
any claim that arises out of combat activities. The arising-out-
of test is a familiar one used in workmen’s compensation
statutes to denote any causal connection between the term of
employment and the injury.4

The parties do not seriously dispute the proposition that
uniquely federal interests are implicated in these cases, nor do
the plaintiffs contend that the detention of enemy combatants is
not included within the phrase “combat activities.” Moreover,
although the parties dispute the degree to which the contract
employees were integrated into the military’s operational
activities, there is no dispute that they were in fact integrated
and performing a common mission with the military under
ultimate military command. They were subject to military
direction, even if not subject to normal military discipline.
Instead, the plaintiffs argue that there is not a significant conflict

potentially including 28 U.S.C. § 2680(k) (exempting from the
immunity waiver “any claim arising in a foreign country”). Of course,
since that issue has not been properly raised, we do not reach it.
4
See, e.g., O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504,
507 (1951); U.S. Industries/Federal Sheet Metal, Inc. v. Director,
OWCP, 455 U.S. 608, 615 (1982). In the District of Columbia, scope
of employment law is expansive enough “to embrace any intentional
tort arising out of a dispute that was originally undertaken on the
employer’s behalf.” Council on American Islamic Relations v.
Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (quoting Johnson v.
Weinberg, 434 A.2d 404, 409 (D.C. 1982)).
 12

in applying state or Iraqi tort law to the behavior of both
contractors’ employees because the U.S. government itself
openly condemned the behavior of those responsible for abusing
detainees at Abu Ghraib–at least the Army personnel involved.

In order to determine whether a significant conflict exists
between the federal interests and D.C. tort law, it is necessary to
consider the reasons for the combat activities exception. The
legislative history of the combatant activities exception is
“singularly barren,” but it is plain enough that Congress sought
to exempt combatant activities because such activities “by their
very nature should be free from the hindrance of a possible
damage suit.” Johnson v. U.S., 170 F.2d 767, 769 (9th Cir.
1948). As the Ninth Circuit has explained, the combatant
activities exception was designed “to recognize that during
wartime encounters[,] no duty of reasonable care is owed to
those against whom force is directed as a result of authorized
military action.” Koohi v. U.S., 976 F.2d 1328, 1337 (9th Cir.
1992) (holding preempted claims against a defense contractor
implicated in the Navy’s accidental shoot-down of an Iranian
commercial airliner); see also Ibrahim, 391 F. Supp. 2d at 18
(“war is an inherently ugly business”).

To be sure, to say that tort duties of reasonable care do not
apply on the battlefield is not to say that soldiers are not under
any legal restraint. Warmaking is subject to numerous
proscriptions under federal law and the laws of war. Yet, it is
clear that all of the traditional rationales for tort law–deterrence
of risk-taking behavior, compensation of victims, and
punishment of tortfeasors–are singularly out of place in combat
situations, where risk-taking is the rule. Koohi, 976 F.2d at
1334-35; see also, Bentzlin v. Hughes Aircraft Co., 833 F. Supp.
1486, 1493 (C.D. Cal. 1993). In short, the policy embodied by
the combatant activities exception is simply the elimination of
tort from the battlefield, both to preempt state or foreign
 13

regulation of federal wartime conduct and to free military
commanders from the doubts and uncertainty inherent in
potential subjection to civil suit. And the policies of the
combatant activities exception are equally implicated whether
the alleged tortfeasor is a soldier or a contractor engaging in
combatant activities at the behest of the military and under the
military’s control. Indeed, these cases are really indirect
challenges to the actions of the U.S. military (direct challenges
obviously are precluded by sovereign immunity).

The nature of the conflict in this case is somewhat different
from that in Boyle–a sharp example of discrete conflict in which
satisfying both state and federal duties (i.e., by designing a
helicopter hatch that opens both inward and outward) was
impossible. In the context of the combatant activities exception,
the relevant question is not so much whether the substance of
the federal duty is inconsistent with a hypothetical duty imposed
by the state or foreign sovereign. Rather, it is the imposition
per se of the state or foreign tort law that conflicts with the
FTCA’s policy of eliminating tort concepts from the battlefield.
The very purposes of tort law are in conflict with the pursuit of
warfare. Thus, the instant case presents us with a more general
conflict preemption, to coin a term, “battle-field preemption”:
the federal government occupies the field when it comes to
warfare, and its interest in combat is always “precisely contrary”
to the imposition of a non-federal tort duty. Boyle, 487 U.S. at
500.

Be that as it may, there are specific conflicts created if tort
suits are permitted. Of course, the costs of imposing tort
liability on government contractors is passed through to the
American taxpayer, as was recognized in Boyle. More
important, whether the defendant is the military itself or its
contractor, the prospect of military personnel being haled into
lengthy and distracting court or deposition proceedings is the
 14

same where, as here, contract employees are so inextricably
embedded in the military structure. Such proceedings, no doubt,
will as often as not devolve into an exercise in finger-pointing
between the defendant contractor and the military, requiring
extensive judicial probing of the government’s wartime policies.
Allowance of such suits will surely hamper military flexibility
and cost-effectiveness, as contractors may prove reluctant to
expose their employees to litigation-prone combat situations.5

Further, given the numerous criminal and contractual
enforcement options available to the government in responding
to the alleged contractor misconduct–which options the
government evidently has foregone–allowance of these claims
will potentially interfere with the federal government’s authority
to punish and deter misconduct by its own contractors. See, e.g.,
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 350-53
(2001). And as noted above, the Army Claims Service has
confirmed that plaintiffs will not be totally bereft of all remedies
for injuries sustained at Abu Ghraib, as they will still retain
rights under the Foreign Claims Act. Thus, in light of these
alternative remedies, it is simply not accurate to say, as the
dissent does, that our decision today leaves the field without any
law at all, Dissent Op. at 30-31.

Just as in Boyle, however, the “scope of displacement” of
the preempted non-federal substantive law must be carefully
tailored so as to coincide with the bounds of the federal interest
being protected. In that case, the Supreme Court promulgated
a three-part test to determine when preemption is required in the
design defects context: “Liability for design defects in military
equipment cannot be imposed, pursuant to state law, when (1)

5
The dissent asserts that such conflicts can be ameliorated
through a deus ex machina of litigation management. Dissent Op. at
25-26. We think that is an illusion.
 15

the United States approved reasonably precise specifications; (2)
the equipment conformed to these specifications; and (3) the
supplier warned the United States about the dangers in the use
of the equipment that were known to the supplier but not to the
United States.” Boyle, 487 U.S. at 512. This test served to
ensure that a “discretionary function” of the government was
truly at stake and to eliminate any perverse incentive for a
manufacturer to fail to disclose knowledge of potential risks. Id.
at 512-13. Here, the district court concluded that the federal
interest in shielding the military from battlefield damage suits is
sufficiently protected if claims against contract employees
“under the direct command and exclusive operational control of
the military chain of command such that they are functionally
serving as soldiers” are preempted. Ibrahim, 556 F. Supp. 2d at
5.

We agree with CACI that this “exclusive operational
control” test does not protect the full measure of the federal
interest embodied in the combatant activities exception. Surely,
unique and significant federal interests are implicated in
situations where operational control falls short of exclusive. As
CACI argues, that a contractor has exerted some limited
influence over an operation does not undermine the federal
interest in immunizing the operation from suit. Indeed, a
parallel argument drawn from the Eleventh Circuit for a rule that
would preclude suit “only if . . . the contractor did not
participate, or participated only minimally, in the design of the
defective equipment” was rejected by the Supreme Court in
Boyle as “not a rule designed to protect the federal interest
embodied in the ‘discretionary function’ exemption.” Whether
or not the contractors participated in the design of the helicopter
door, the government official made the policy judgment, and it
is that judgment that is protected by preemption. 487 U.S. at
513.
 16

The district court’s test as applied to CACI and Titan,
moreover, creates a powerful (and perverse) economic incentive
for contractors, who would obviously be deterred from
reporting abuse to military authorities if such reporting alone is
taken to be evidence of retained operational control. That
would be quite anomalous since even uniformed military
personnel are obliged to refuse manifestly unlawful orders, see
United States v. Calley, 22 U.S.C.M.A. 534, 544 (1973), and,
moreover, are encouraged to report such outside of the chain of
command to inspector generals, see, e.g., 10 U.S.C. § 1034.
Again we see an analogy to Boyle. As noted, the Eleventh
Circuit would have allowed the contractor a preemption defense
only if the contractors did not participate at all in the design of
the helicopter door. The Supreme Court pointed out that that
test would create an analogous perverse incentive, discouraging
contractors from participating in design features where their
expertise would help to better the product. Boyle, 487 U.S. at
512-13.

We think that the following formulation better secures the
federal interests concerned: During wartime, where a private
service contractor is integrated into combatant activities over
which the military retains command authority, a tort claim
arising out of the contractor’s engagement in such activities
shall be preempted. We recognize that a service contractor
might be supplying services in such a discrete manner–perhaps
even in a battlefield context–that those services could be judged
separate and apart from combat activities of the U.S. military.6

6
Plaintiffs contend that government contractor preemption should
be limited to procurement contracts (as in Boyle or Koohi) and should
not extend to service contracts, as here. While some lower courts have
limited preemption in this manner, see, e.g., McMahon v. Presidential
airways Inc., 460 F. Supp. 2d. 1315, 1331 (M.D. Fla. 2006); Fisher v.
Halliburton, 390 F. Supp. 2d 610, 615 (S.D. Tex. 2005), we agree
 17

That would be analogous to the court’s recognition in Boyle that
a supply contractor that had a contract to provide a product
without relevant specifications would not be entitled to the
preemption defense if its sole discretion, rather than the
government’s, were challenged (although we are still puzzled
at what interest D.C., or any state, would have in extending its
tort law onto a foreign battlefield).

We believe, compare Dissent Op. at 21-22, our decision is
consistent with statements made by the Department of Defense
in a rulemaking proceeding after the alleged events in this case
in which it stated that “[t]he public policy rationale behind Boyle
does not apply when a performance-based statement of work is
used in a services contract, because the Government does not, in
fact, exercise specific control over the actions and decisions of
the contractor . . . .” Contractor Personnel Authorized to
Accompany U.S. Armed Forces, 73 Fed. Reg. 16,764, 16,768
(Mar. 31, 2008) (emphasis supplied). Because performance-
based statements of work “describe the work in terms of the
required results rather than either ‘how’ the work is to be
accomplished or the number of hours to be provided,” 48 C.F.R.
§ 37.602(b)(1), by definition, the military could not retain
command authority nor operational control over contractors
working on that basis and thus tort suits against such contractors
would not be preempted under our holding. Indeed, there is no

with the Eleventh Circuit, which has held that the question of
preemption vel non is not contingent on whether a contract is for
goods or services. Hudgens v. Bell Helicopters, 328 F.3d 1329, 1345
(11th Cir. 2003) (holding claims that service contractor negligently
maintained military helicopters preempted by the discretionary
functions exception); see also, Ibrahim, 556 F. Supp. 2d at 4 n.3
(following Hudgens). Rather, “the question is whether subjecting a
contractor to liability under state tort law would create a significant
conflict with a unique federal interest.” Hudgens, 328 F.3d at 1334.
 18

indication from the department’s statements that it considered,
much less ruled out, whether tort suits against service
contractors working within the military chain of command
should be preempted on the basis of the FTCA’s “combatant
activities” exception.

It is argued that because the executive branch has not
chosen to intervene in this suit or file an amicus brief on behalf
of defendants, this case differs from Boyle. But the government
did not participate in Boyle below the Supreme Court, which has
also been the case in some other proceedings. See e.g., Nat'l
Foreign Trade Council v. Natsios, 181 F.3d 38, 54 n.9 (1st Cir.
1999), aff’d sub nom. Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363; Davidowitz v. Hines, 30 F.Supp. 470 (D. Pa.
1939), aff’d 312 U.S. 52; see also Zschernig v. Miller, 389 U.S.
429, 443 (1968) (finding Oregon statute preempted even though
Solicitor General argued as amicus that application of the statute
did not “unduly interfere[] with the United States’ conduct of
foreign relations” because “the basic allocation of power
between the States and the Nation . . . cannot vary from day to
day with the shifting winds at the State Department”) (Stewart,
J. concurring). To be sure, the executive branch has broadly
condemned the shameful behavior at Abu Ghraib documented
in the now infamous photographs of detainee abuse. This
disavowal does not, however, bear upon the issue presented in
this tort suit against these defendants. Indeed, the government
acted swiftly to institute court-martial proceedings against
offending military personnel, but no analogous disciplinary,
criminal, or contract proceedings have been so instituted against
the defendants. This fact alone indicates the government’s
perception of the contract employees’ role in the Abu Ghraib
scandal. In any event, Congress at least has indicated that
common law tort suits “arising out of” combatant activities
conflict with the very real interests of the military in time of
war.
 19

Our holding is also consistent with the Supreme Court’s
recent decision in Wyeth v. Levine, 555 U.S. __ (2009). In that
case, the Court held that federal law did not preempt a patient’s
state law inadequate warning claim against a drug manufacturer,
because compliance with both the state and federal duties was
not impossible and because the manufacturer’s interpretation of
congressional intent was overly broad. The Court cited two
“cornerstones” of preemption jurisprudence, both of which
helpfully illuminate the distinctions between the instant case and
Wyeth. Id., slip op. at 8. The first is congressional intent,
which, while murky at best in the context of federal drug
regulations, is much clearer in the case of the statutory text of
the combatant activities exception. Id. And the second is the
strong presumption against preemption in fields that the states
have traditionally occupied but where Congress has legislated
nonetheless. Id. Unlike tort regulation of dangerous or
mislabeled products, the Constitution specifically commits the
Nation’s war powers to the federal government, and as a result,
the states have traditionally played no role in warfare. We think
that these “cornerstones” of preemption secure the foundation of
our holding.

The federal government’s interest in preventing military
policy from being subjected to fifty-one separate sovereigns
(and that is only counting the American sovereigns) is not only
broad–it is also obvious. Plaintiffs did not, at the briefing stage,
even identify which sovereign’s substantive common law of tort
should apply to their case although at oral argument counsel
explained that, in its view, D.C. law applied.7 Defendants’
actions thus were at a minimum potentially subject to the laws
of fifty states plus the District of Columbia, perhaps even U.S.

7
Our dissenting colleague suggests that plaintiffs are ill-advised
to base their tort claims on D.C. law. See Dissent Op. at 28-29. But
again, we must take the case plaintiffs bring before us.
 20

overseas dependencies and territories (if detainee counsel’s
reliance at oral argument on “all law” is to be credited). And as
we have pointed out, on appeal plaintiffs rely on general claims
of abuse which include assault and battery, negligence, and the
intentional infliction of emotional distress. The application of
those tort concepts surely differ in 51 jurisdictions. We can also
imagine many other causes of action, which vary by
jurisdiction, that under the dissent’s standard could apply to
employees of government contractors on the battlefield such as
defamation, invasion of privacy, etc. Indeed, in light of the
District’s choice of law principles, see Drs. Groover, Christie &
Merrit, P.C. v. Burke, 917 A.2d 1110, 1117 (D.C. 2007)
(applying a “government interests analysis”), it is far from
unlikely that the applicable substantive law would be that of
Iraq.

The dissent suggests that some jurisdictions’ tort laws –
which, are not specified – might be selectively preempted, see
Dissent Op. at 27, but apparently not even “intentional infliction
of emotional distress.” The dissent’s focus on the notoriety of
Abu Ghraib and its failure to specify which torts would be
preempted runs the risk of fashioning an encroachment with
federal interests that is like “a restricted railroad ticket, good for
this day and train only.” Smith v. Allwright, 321 U.S. 649, 669
(1944) (Roberts, J., dissenting).

***

Arguments for preemption of state prerogatives are
particularly compelling in times of war. In that regard, even in
the absence of Boyle the plaintiffs’ claims would be preempted.
The states (and certainly foreign entities) constitutionally and
traditionally have no involvement in federal wartime policy-
making. See U.S. Const. Art I, § 10; see also, American Ins.
Ass’n v. Garamendi, 539 U.S. 396, 420 n.11 (2003) (“If a State
 21

were simply to take a position on a matter of foreign policy with
no serious claim to be addressing a traditional state
responsibility, field preemption might be the appropriate
doctrine, whether the National Government had acted and, if it
had, without reference to the degree of any conflict, the principle
having been established that the Constitution entrusts foreign
policy exclusively to the National Government.”); Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 387-88 (2000) (“A
failure to provide for preemption expressly may reflect nothing
more than the settled character of implied preemption doctrine
that courts will dependably apply.”); Japan Line, Ltd. v. County
of Los Angeles, 441 U.S. 434, 447-49 (1979); Zschernig v.
Miller, 389 U.S. 429 (1968); Hines v. Davidowitz, 312 U.S. 52,
63 (1941) (“Our system of government . . . imperatively requires
that federal power in the field affecting foreign relations be left
entirely free from local interference.”). On the other side of the
balance, the interests of any U.S. state (including the District of
Columbia) are de minimis in this dispute–all alleged abuse
occurred in Iraq against Iraqi citizens. The scope of
displacement under our “ultimate military authority” test is thus
appropriately broader than either Boyle’s discretionary functions
test or the rule proposed by the district court. The breadth of
displacement must be inversely proportional to state interests,
just as it is directly proportional to the strength of the federal
interest.

While the dissent suggests that the cases cited above are
inapposite because the “preempted state laws conflicted with
express congressional or executive policy,” Dissent Op. at 16-
17, the assertion is simply not accurate.8 In Garamendi, for

8
Neither are we persuaded by our dissenting colleague’s
suggestion that these cases are of little precedential weight because the
state laws in the above cited cases were “specifically targeted at issues
concerning the foreign relations of the United States.” Dissent Op. at
 22

example, the Supreme Court held that a California statute
requiring insurance companies doing business in that state to
disclose information concerning policies it sold in Europe
between 1920 to 1945 was preempted by federal law. 539 U.S.
at 401. As the source of preemption, the Court relied on an
executive agreement between the United States and Germany.
The agreement provided that Germany would form and provide
funding for a foundation which would adjudicate Holocaust-era
insurance claims. Id. at 406. For its part, the United States
agreed that, should any plaintiff file a Holocaust-era insurance
claim against a German company in U.S. court, the executive
would submit a non-binding statement indicating “that U.S.
policy interests favor dismissal on any valid legal ground.” Id.
The state and federal law thus posed no express conflict – it
would have been entirely possible for insurance companies to
disclose information under California’s legislation and still
benefit from the national government’s intervention should suit
be filed against them in U.S. courts. Nonetheless, the Supreme
Court held that the California statute was preempted because the
California statute “employs a different state system of economic
pressure and in doing so undercuts the President’s diplomatic
discretion and choice he has made exercising it.” Id. at 423-24
(quotation omitted); see also id. at 427 (“The basic fact is that
California seeks to use an iron fist where the President has

16. Insofar as this lawsuit pursues contractors integrated within
military forces on the battlefield, we believe it similarly interferes with
the foreign relations of the United States as well as the President’s war
making authority. Moreover, contrary to the dissent, it is a black-letter
principle of preemption law that generally applicable state laws may
conflict with and frustrate the purposes of a federal scheme just as
much as a targeted state law. See Riegel v. Medtronic, Inc., 128 S. Ct.
999, 1008 (2008); Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443
(2005); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521 (1992)
(plurality opinion). The Supreme Court’s preemption cases thus reject
the dissent’s attempted distinction.
 23

consistently chosen kid gloves.”). While the dissent attempts to
distinguish Garamendi by pointing out that the Supreme Court
characterized the state statute at issue there as posing a “clear
conflict” with federal policy, the same words could be used here.

Similarly, in Crosby, the Supreme Court held that a
Massachusetts statute prohibiting the state from purchasing
goods and services from companies doing business in Burma
was preempted by a federal statute that inter alia gave the
President the power to, upon certain conditions, prohibit United
States persons from investing in Burma. 530 U.S. at 367-69. As
in Garamendi, despite the fact that companies could comply
with both state and federal laws, the Court explained that the
state statute was preempted because it was “at odds with . . . the
federal decision about the right degree of pressure to employ.”
Id. In other words, in both Crosby and Garamendi, preemption
arose not because the state law conflicted with the express
provisions of federal law, but because, under the circumstances,
the very imposition of any state law created a conflict with
federal foreign policy interests. Much the same could be said
here. Not only are these cases not inapposite, they provide an
alternative basis for our holding.9

9
Even had plaintiffs focused and limited their allegations before
us to actual torture, we note that Congress has passed comprehensive
legislation dealing with the subject of war crimes, torture, and the
conduct of U.S. citizens acting in connection with military activities
abroad. Through acts such as the Torture Victim Protection Act, 28
U.S.C. § 1350, the Military Commissions Act, 10 U.S.C. § 948a et
seq, the federal criminal torture statute, 18 U.S.C. § 2340-2340A, the
War Crimes Act, 18 U.S.C. § 2441, the Foreign Claims Act, 10
U.S.C. § 2734, and the Uniform Code of Military Justice, 10
U.S.C. § 801 et seq, Congress has created an extensive body of law
with respect to allegations of torture. But Congress has declined to
create a civil tort cause of action that plaintiffs could employ. In the
TVPA, for example, Congress provided a cause of action whereby
 24

We therefore reverse the district court’s holding as to CACI
and affirm its Titan holding on a broader rationale.

III

It will be recalled that our jurisdiction to entertain the ATS
issue extends only to the plaintiffs’ appeals against Titan and not
to CACI’s appeals from the district court’s denial of its
summary judgment motion on preemption grounds. The statute
is a simple, if mysterious, one. It states, “the district court shall
have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of
the United States.” 28 U.S.C. § 1350. The Supreme Court
recently has wrestled with its meaning and its scope. Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004). Appellants argue that
the district court erred in dismissing their claims against Titan
under this statute based on their reading of Sosa. Titan argues
that the district court correctly followed our precedents in Tel-
Oren, 726 F.2d 774 (D.C. Cir. 1984) (Edwards, J., concurring),
and Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir.
1985), which conclude that the ATS provides a cause of action
against states but not private persons and which survive the
Supreme Court’s analysis in Sosa.

U.S. residents could sue foreign actors for torture, but Congress
exempted American government officers and private U.S. persons
from the statute. Congress has also adopted criminal statutes that
would apply to these defendants had they committed acts of torture,
see 18 U.S.C. §§ 2340A, 2241, 3261, but Congress has not created a
corresponding tort cause of action. Moreover, even in the years since
Abu Ghraib, Congress has not enacted a civil cause of action allowing
suit for torture, it only has extended the UCMJ to cover military
contractors. 10 U.S.C. § 802.
 25

The latter case involved a tort claim brought, inter alia,
against a Mexican national, Sosa, who purportedly acted on the
DEA’s behalf to abduct a Mexican physician accused of torture
and murder and bring him from Mexico to stand trial in the
United States. Sosa was acquitted of criminal charges and then
brought his suit. The Supreme Court, reversing the Ninth
Circuit, held that four DEA agents also named as defendants
were immune from suit because of an exception to the FTCA
waiver of sovereign immunity for actions in foreign countries.10
Then it turned to the claim against Sosa under the ATS. Sosa
and the U.S. government argued that the ATS was only a
jurisdictional grant; it did not create any substantive law, but the
Court disagreed, concluding that when the statute was passed by
the first Congress as part of the Judiciary Act of 1789, three
limited causes of action were contemplated: piracy, infringement
of ambassadorial rights, and violation of safe conduct.11 And
more important for our case, the Court opened the door a crack
to the possible recognition of new causes of action under
international law (such as, perhaps, torture) if they were firmly
grounded on an international consensus. Sosa, 542 U.S. at 732-
33. The court noted, but declined to decide, the issue which
divides us from the Second Circuit, whether a private actor, as
opposed to a state, could be liable under the ATS. Id. at 733
n.20.

The holding in Sosa, however, was to reject the ATS claim
that Alvarez was arbitrarily arrested and detained in Mexico in
violation of international law because, at the threshold, there

10
Apparently, Sosa never argued for federal preemption of the
claims against him on grounds analogous to the instant case.
11
There is some indication that the thoroughly modern act of
aircraft hijacking may also be on this short list of universal concerns.
See, e.g., Kadić v. Karădzíc, 70 F.3d 232, 240 (2d Cir. 1995)).
 26

was no settled norm of international law bearing on that question
that was analogous to the consensus that existed in 1789 with
respect to the three concerns that motivated Congress.

Appellants argue that despite the footnote reserving the
issue dividing the D.C. and Second Circuits, since the Court
went on to analyze whether an ATS cause of action existed
against Alvarez, it must have implicitly determined that a
private actor could be liable. But that is not persuasive: courts
often reserve an issue they don’t have to decide because, even
assuming arguendo they favor one side, that side loses on
another ground.

Plaintiffs rely heavily on the Second Circuit’s opinion in
Kadić v. Karădzíc, 70 F.3d 232, 239 (2d Cir. 1995)), which held
that for certain categories of action, including genocide, the
scope of the law of nations is not confined solely to state action
but reaches conduct “whether undertaken by those acting under
the auspices of a state or only as private individuals.” Despite
the apparent breadth of this formulation, it must be remembered
that in Kadić, the defendant was the self-proclaimed President
of the Serbian Republic of Bosnia-Herzegovina, so the holding
is not so broad. While Srpska was not yet internationally
recognized as a state–thus technically rendering its militia a
private entity–a quasi-state entity such as Radovan Karădzíc’s
militia is easily distinguishable from a private actor such as
Titan.

The Sosa Court, while opening the door a crack to the
expansion of international law norms to be applied under the
ATS, expressed the imperative of judicial restraint. It was
pointed out that federal courts today–as opposed to colonial
times–are and must be reluctant to look to the common law,
including international law, in derogation of the acknowledged
role of legislatures in making policy. Bearing that caution in
 27

mind, and in light of the holding in Sosa, we have little difficulty
in affirming the district judge’s dismissal of the ATS claim
against Titan. As we have noted, appellants’ claim–as it
appeared in their briefs and oral argument before us–is
stunningly broad. They claim that any “abuse” inflicted or
supported by Titan’s translator employees on plaintiff detainees
is condemned by a settled consensus of international law. At
oral argument, counsel claimed that included even assault and
battery.12 We think that is an untenable, even absurd,
articulation of a supposed consensus of international law.
(Indeed, it is doubtful that we can discern a U.S. national
standard of treatment of prisoners–short of the Eighth
Amendment.) In Price v. Socialist People’s Libyan Arab
Jamalhiriya, 294 F.3d 82, 93-4 (D.C. Cir. 2002), we specifically
held that the Libyan police’s very rough and abusive handling
of American detainees was not a violation of the Torture Victim
Protection Act (“TVPA”), § 3(b)(1), 28 U.S.C. § 1350.
Although appellants there did not make a claim under the ATS,
if their treatment did not violate American law, perforce they
could not draw upon an international consensus.

Assuming, arguendo, that appellants had adequately alleged
torture (or war crimes), there still remains the question whether

12
“Court: So, your allegations are broader than torture.

Counsel: Yes. Your Honor, the allegations turn on the physical
force whether or not those are labeled definitionally as torture or
not doesn’t really matter because we’re talking about assault and
batteries. And so, you know, if for example, you know,
something like–

Court: So, assault and battery would be covered by the law of
nations, as well. . . . Is that correct?

Counsel: . . . Yes. In this context it would be . . . .”
 28

they would run afoul of Sosa’s comments. Although torture
committed by a state is recognized as a violation of a settled
international norm, that cannot be said of private actors. See,
e.g., Sanchez-Espinoza, 770 F.2d at 206-7; see also, Convention
Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment art. I, para. 1, Dec. 10, 1984, 108 Stat.
382, 1465 U.N.T.S. 85 (limiting definition of torture to acts by
“a public official or other person acting in an official capacity”);
TVPA, § 2(a), 28 U.S.C. § 1350 (establishing liability
exclusively for individuals “under actual or apparent authority,
or color of law, of any foreign nation”).13

Alternatively, it is asserted that defendants, while private
parties, acted under the color of law. Although we have not held
either way on this variation, in Tel-Oren, Judge Edwards’
concurring opinion, while not a court holding, suggests that the
ATS extends that far. 726 F.2d at 793. And the Supreme Court
in Sosa implied that it might be significant for Sosa to establish
that Alvarez was acting “on behalf of a government.” 542 U.S.
at 735 (although which government–the U.S. or Mexico–is
unclear). Of course, plaintiffs are unwilling to assert that the
contractors are state actors. Not only would such an admission
make deep inroads against their arguments with respect to the
preemption defense, it would virtually concede that the
contractors have sovereign immunity. Thus, as the district court
recognized, appellants are caught between Scylla and Charybdis:
they cannot artfully allege that the contractors acted under color

13
Even if torture suits cannot be brought against private
parties–at least not yet–it may be that “war crimes” have a broader
reach. Of course, we reiterate that appellants have not brought to our
attention any specific allegations of such behavior. Presumably for
this reason, when the district court considered appellants’ ATS
argument, it analyzed only an asserted international law norm against
torture, not war crimes.
 29

of law for jurisdictional purposes while maintaining that their
action was private when the issue is sovereign immunity.
Ibrahim, 391 F. Supp. 2d at 14 (citing Sanchez-Espinoza, 770
F.2d at 207).

In light of the Supreme Court’s recognition of Congress’
superior legitimacy in creating causes of action, see Sosa, 542
U.S. at 725-28, we note that it is not as though Congress has
been silent on the question of torture or war crimes. Congress
has frequently legislated on this subject in such statutes as the
TVPA, the Military Commissions Act, 10 U.S.C. § 948a et seq.,
the federal torture statute, 18 U.S.C. 2340-2340A, the War
Crimes Act, 18 U.S.C. § 2441, and the Uniform Code of
Military Justice, 10 U.S.C. § 801 et seq., but Congress has never
created this cause of action. Perhaps most relevant is the TVPA,
in which Congress provided a cause of action whereby U.S.
residents could sue foreign states for torture, but did not–and we
must assume that was a deliberate decision–include as possible
defendants either American government officers or private U.S.
persons, whether or not acting in concert with government
employees. We note that in his signing statement for the TVPA,
President George H. W. Bush stated: “I am signing the bill
based on my understanding that the Act does not permit suits for
alleged human rights violations in the context of United States
military operations abroad . . . .” Statement by President of the
United States, Statement by President George [H. W.] Bush
upon Signing H.R. 2092, 1992 U.S.C.C.A.N. 91 (Mar. 12, 1992).

The judicial restraint required by Sosa is particularly
appropriate where, as here, a court’s reliance on supposed
international law would impinge on the foreign policy
prerogatives of our legislative and executive branches. See, e.g.,
Garamendi, 539 U.S. at 413-15; Zschernig, 389 U.S. at 440-41.
As the Sosa Court explained: “Since many attempts by federal
courts to craft remedies for the violation of new norms of
 30

international law would raise risks of adverse foreign policy
consequences, they should be undertaken, if at all, with great
caution.” Sosa, 542 U.S. at 727-28.14

Finally, appellants’ ATS claim runs athwart of our
preemption analysis which is, after all, drawn from
congressional stated policy, the FTCA. If we are correct in
concluding that state tort law is preempted on the battlefield
because it runs counter to federal interests, the application of
international law to support a tort action on the battlefield must
be equally barred. To be sure, ATS would be drawing on
federal common law that, in turn, depends on international law,
so the normal state preemption terms do not apply. But federal
executive action is sometimes treated as “preempted” by
legislation. See, e.g., Chamber of Commerce of U.S. v. Reich, 74
F.3d 1322, 1332-39 (D.C. Cir. 1996). Similarly, an elaboration
of international law in a tort suit applied to a battlefield is
preempted by the same considerations that led us to reject the
D.C. tort suit.

IV

For the aforementioned reasons, the judgment of the district
court as to Titan is affirmed. The judgment as to CACI is

14
We note that the Justice Department, in its brief before the
Ninth Circuit in the Sosa matter, took the position that “the [ATS] is
not intended as a vehicle for U.S. courts to judge the lawfulness of
U.S. government actions abroad in defense of national security[,] and
any remedies for such actions are appropriately matters for resolution
by the political branches, not the courts.” Brief for the United States
as Amicus Curiae in Support of Reversal of the Judgment against
Defendant-Appellant Jose Francisco Sosa, Alvarez-Machain v. Sosa,
No. 99-56880 (9th Cir. Mar. 20, 2000).
 31

reversed in the accompanying order. Thus, plaintiffs’ remaining
claims are dismissed.
So ordered.
 GARLAND, Circuit Judge, dissenting: The plaintiffs in these
cases allege that they were beaten, electrocuted, raped, subjected
to attacks by dogs, and otherwise abused by private contractors
working as interpreters and interrogators at Abu Ghraib prison.
At the current stage of the litigation, we must accept these
allegations as true. The plaintiffs do not contend that the United
States military authorized or instructed the contractors to engage
in such acts. No Executive Branch official has defended this
conduct or suggested that it was employed to further any
military purpose. To the contrary, both the current and previous
Administrations have repeatedly and vociferously condemned
the conduct at Abu Ghraib as contrary to the values and interests
of the United States. So, too, has the Congress.

No act of Congress and no judicial precedent bars the
plaintiffs from suing the private contractors -- who were neither
soldiers nor civilian government employees. Indeed, the only
statute to which the defendants point expressly excludes private
contractors from the immunity it preserves for the government.
Neither President Obama nor President Bush nor any other
Executive Branch official has suggested that subjecting the
contractors to tort liability for the conduct at issue here would
interfere with the nation’s foreign policy or the Executive’s
ability to wage war. To the contrary, the Department of Defense
has repeatedly stated that employees of private contractors
accompanying the Armed Forces in the field are not within the
military’s chain of command, and that such contractors are
subject to civil liability.

Under the circumstances of these cases, there is no warrant
for displacing the ordinary operation of state law and dismissing
the plaintiffs’ complaints solely on preemption grounds.
Accordingly, I would affirm the district court’s denial of
summary judgment as to CACI and reverse its grant of summary
judgment in favor of Titan.
 2

I

Following the 2003 invasion of Iraq, the United States took
over Abu Ghraib prison and used it as a detention facility.
According to official Department of Defense (DOD) reports,
“numerous incidents of sadistic, blatant, and wanton criminal
abuses were inflicted on several detainees” at Abu Ghraib
between October and December 2003. MAJ. GEN. ANTONIO M.
TAGUBA, ARTICLE 15-6 INVESTIGATION OF THE 800TH MILITARY
POLICE BRIGADE 16 (2004). Those reports noted the
participation of contractor personnel in the abuses and
specifically identified Titan and CACI employees as being
among the perpetrators. Id. at 48; MAJ. GEN. GEORGE R. FAY,
AR 15-6 INVESTIGATION OF THE ABU GHRAIB DETENTION
FACILITY AND 205TH MILITARY INTELLIGENCE BRIGADE 72-73,
79, 81-82, 84, 86, 87, 89, 130-34 (2004) [hereinafter REPORT OF
MAJ. GEN. FAY].

Responding to the release of graphic photographs of the
conduct at Abu Ghraib, President George W. Bush declared that
“the practices that took place in that prison are abhorrent and
they don’t represent America.” White House, Press Release,
President Bush Meets with Al Arabiya Television, 2004 WLNR
2540883 (May 5, 2004). Concerned that those “who want to
dislike America will use this as an excuse to remind people
about their dislike,” he assured “[t]he people of the Middle East
. . . that we will investigate fully, that we will find out the truth
. . . and [that] justice will be served.” Id. Secretary of Defense
Donald Rumsfeld, testifying before Congress, similarly
condemned the abuses as “inconsistent with the values of our
nation.” Donald H. Rumsfeld, Testimony Before the Senate and
House Armed Services Committees 1 (May 7, 2004).1 He, too,

1
Available at http://armed-services.senate.gov/statemnt/
2004/May/Rumsfeld.pdf.
 3

stressed the damage “[t]o the reputation of our country,” but said
that “this is also an occasion to demonstrate to the world the
difference between those who believe in democracy and human
rights and those who believe in rule by the terrorist code. . . .
Part of [our] mission -- part of what we believe in -- is making
sure that when wrongdoing or scandal occur, that they are not
covered up, but exposed, investigated, publicly disclosed -- and
the guilty brought to justice.” Id. at 1, 6. Congress expressed
the same sentiments.2

The seventeen named plaintiffs in the cases now before us
contend that they (or their deceased husbands) were among the
detainees who were subjected to the abuses that the President
and Secretary of Defense decried. According to their
complaints, they are Iraqi nationals (or their widows) who were
detained at Abu Ghraib and eventually released without charge.
The defendants are two private American companies, CACI and
Titan. Pursuant to government contracts, CACI provided
interrogators and Titan provided interpreters who worked at Abu
Ghraib.

The plaintiffs contend that CACI and Titan employees
subjected them to the following acts, among many others:

“[T]ortur[ing] [Plaintiff Ibrahim’s husband] by
repeatedly inflict[ing] blows and other injuries to his

2
See S. Res. 356, 108th Cong. (2004) (“condemn[ing] in the
strongest possible terms the despicable acts at Abu Ghraib prison”);
H.R. Res. 627, 108th Cong. (2004) (declaring that the abuses at Abu
Ghraib “are offensive to the principles and values of the American
people and the United States military . . . and contradict the policies,
orders, and laws of the United States and the United States military
and undermine the ability of the United States military to achieve its
mission in Iraq”).
 4

head and body[,] . . . thereby causing extreme physical
and mental pain and suffering and, ultimately, his
death.” Second Am. Compl. ¶ 33, Ibrahim v. Titan
Corp. [hereinafter Ibrahim Compl.].

“[T]ortur[ing] [Plaintiff] Aboud . . . [b]y beating him
with fists and sticks; . . . urinating on him; . . . [and]
threatening to attack him with dogs.” Id. ¶ 38.

“[T]ortur[ing] [Plaintiff] Hadod . . . [b]y beating him
with fists and striking his head against a wall; [and]
forcing him to watch his elderly father being hung up
and then beaten.” Id. ¶ 42.

“[T]ortur[ing] [Plaintiff Al Jumali’s husband] by
beating him, gouging out one of his eyes, electrocuting
him, breaking one of his legs, and spearing him, . . .
thereby causing . . . his death.” Id. ¶ 51.

“Roping Plaintiff Saleh and 12 other naked prisoners
together by their genitals and then pushing one of the
male detainees to the ground, causing the others to
suffer extreme physical, mental and emotional distress;
. . . . [r]epeatedly shocking Plaintiff Saleh with an
electric stick and beating him with a cable; . . . [and]
[t]ying his hands above his head and sodomizing him
. . . .” Third Am. Compl. ¶ 116, Saleh v. Titan Corp.
[hereinafter Saleh Compl.].

“Stripping [Plaintiff Al-Nidawi], tying his hands
behind his back and releasing dogs to attack his private
parts.” Id. ¶ 142.
 5

“[F]orc[ing] Plaintiff Haj Ali to stand on a box, with
electrical wires attached to his wrists and [shocking]
him with intense pulses of electricity . . . .” Id. ¶ 125.

Plaintiffs sued defendants for (inter alia) the common law torts
of assault, battery, and intentional infliction of emotional
distress. In their complaints, they name specific CACI and Titan
employees alleged to have brutalized them. Ibrahim Compl.
¶¶ 37, 55; Saleh Compl. ¶¶ 17-19, 24-27, 49-50.

Although today’s opinion states that the plaintiffs complain
only of “abuse” and not “torture,” Slip Op. at 4, the complaints
repeatedly describe the conduct to which they were subjected as
“torture.” See, e.g., Ibrahim Compl. ¶ 1 (“Specifically, the
Plaintiffs allege that they or their decedents . . . were unlawfully
tortured by agents or employees of the Defendants . . . .”); Saleh
Compl. ¶ 1 (“alleg[ing] that Defendants tortured and otherwise
mistreated Plaintiffs”). The district court certainly understood
that to be what the plaintiffs allege. Ibrahim v. Titan Corp., 391
F. Supp. 2d 10, 12 (D.D.C. 2005) (Plaintiffs “assert that
defendants and/or their agents tortured one or more of them.”).
And that is what the plaintiffs continue to allege in their briefs
on appeal, which accuse both CACI and Titan employees of
torturing them. See, e.g., Plaintiffs-Appellees’ Br. 17 (regarding
CACI); Plaintiffs-Appellants’ Reply Br. 11, 13, 16 (regarding
Titan). In any event, the quotations set out in the previous
paragraph describe some of the most egregious of the conduct
at issue, and there is no dispute that if tort law applies, plaintiffs
have stated a cause of action.

The court’s opinion also appears to take issue with the
merits of some of the plaintiffs’ allegations, suggesting that
government determinations cast doubt upon whether the
plaintiffs were actually subjected to this conduct by the
 6

defendants. That is not correct.3 More important, it is
irrelevant. To date, there has been no discovery or summary
judgment on the merits of the plaintiffs’ allegations -- the
district court limited these to the issue of preemption. See 391
F. Supp. 2d at 18-19. Accordingly, and as the court
acknowledges, at this stage of the litigation we must take the
allegations of the complaints to be true. Slip Op. at 4; see
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 164 (1993). In light of the
DOD reports about what happened at Abu Ghraib, we can hardly
regard those allegations as implausible.

3
For example, the court accepts Titan’s view that government
investigations found that its employees were not involved in detainee
abuse at Abu Ghraib. Slip Op. at 4. But Titan is wrong. See REPORT
OF MAJ. GEN. FAY at 133 (finding that a Titan employee “[a]ctively
participated in detainee abuse”); id. at 130-34 (referring two Titan and
three CACI employees for possible prosecution); see also id. at 84
(finding that “[t]he use of dogs in the manner directed by” a CACI
employee “was clearly abusive and unauthorized”). Moreover, there
is no indication that the government investigators had before them the
same evidence that these plaintiffs intend to present. The court also
notes that the U.S. Army Claims Service has rejected one plaintiff’s
claim for compensation (that of Saleh himself), Slip Op. at 3-4, but
there is no hint that the Claims Service has ever considered the merits
of the sixteen other plaintiffs’ cases. Finally, the court notes that, to
date, the government has not criminally charged the contract
employees. Slip Op. at 3, 18. But this sheds little light on the merits
of the plaintiffs’ claims, given the different burdens of proof
applicable to civil and criminal proceedings, as well as the special
jurisdictional problems potentially attendant to the latter. See REPORT
OF MAJ. GEN. FAY at 49-50 (noting that, because CACI’s contract may
have been with the Interior Department rather than DOD, its
employees “may not be subject to the Military Extraterritorial
Jurisdiction Act”).
 7

Moreover -- and more important still -- today’s decision
preempts all such litigation, regardless of its merit. Indeed, the
decision would preempt any lawsuit, even if the plaintiff had
photographs that unambiguously showed private contractors in
the act of abusing them. Given the findings of DOD and the
declarations of President Bush and Secretary Rumsfeld, there
may be at least some prisoners who have equivalent evidence.
Nonetheless, far from simply “tak[ing] the plaintiffs’ cases as
they present them to us,” Slip Op. At 4, my colleagues
effectively dispose of any cases that any plaintiffs could
possibly present.

Finally, it should also be emphasized that neither the
Ibrahim nor the Saleh complaints allege that the defendants’
actions were ordered or authorized by the United States
government. Nor has any party proffered any evidence that the
United States did order or authorize such conduct, or that it was
undertaken to obtain information or to further any other military
purpose.4 To the contrary, the plaintiffs contend that the
contractors “acted unlawfully and without military
authorization.” Plaintiffs-Appellees’ Br. 46 (emphasis added).5

4
See Plaintiffs-Appellees’ Br. 45-46 (“The limited discovery
permitted by the District Court to date, combined with the military
investigations and testimony regarding Abu Ghraib, strongly suggests
that the CACI employees actually were the ringleaders in the illegal
abuse. . . . CACI failed to present any evidence whatsoever that the
CACI employees were directed by the military, [or] received military
authorization and approval, to abuse prisoners.”).
5
See Ibrahim Compl. ¶ 29 (alleging that the defendants
committed the acts “[d]espite . . . clear expressions of United States
policy, and despite the expectation that the Defendants would perform
their contractual duties in accordance with United States and
international law”); Saleh Compl. ¶ 108 (alleging that the United
States intended the contractors to “conduct interrogations in accord
 8

The Saleh (but not the Ibrahim) complaint does charge that the
private contractors acted together with a small number of low-
ranking soldiers -- soldiers who were later court-martialed for
their unauthorized, illegal conduct. Saleh Compl. ¶ 28;
Plaintiffs-Appellees’ Br. 17-18, 24.6 But there is no allegation,
and no evidence, that those soldiers had any control, de jure or
de facto, over the defendants. Hence, it is incorrect to say that
“these cases are really indirect challenges to the actions of the
U.S. military.” Slip Op. at 12. Rather, they are direct
challenges to the unlawful and unauthorized actions of private
contractors.

II

The court directs the dismissal of the plaintiffs’ common
law tort claims on the ground that they are preempted by federal
law. But what federal law does the preempting?

The defendants (and the court) cite only one law: the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-
80. But if we follow our usual rule -- to learn the meaning of a
statute by reading its text -- preemption under that Act is
inappropriate. See Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992) (“We have stated time and again that courts must
presume that a legislature says in a statute what it means and
means in a statute what it says there.”). The text of the FTCA
does indeed evidence congressional concern with common law

with the relevant domestic and international laws” ).
6
A separate RICO statement, filed solely by the Saleh plaintiffs,
also alleged a broader conspiracy, but the district court dismissed the
RICO count and the Saleh plaintiffs have abandoned the allegation.
See Plaintiffs-Appellees’ Br. 46. The Ibrahim plaintiffs never made
such an allegation. See id. at 2.
 9

tort claims, but that concern is directed solely at claims leveled
“against the United States” for the wrongful acts of “any
employee of the Government.” Id. § 1346(b)(1). The Act
permits plaintiffs to sue the United States in federal court for
state-law torts committed by government employees within the
scope of their employment, but contains specific exceptions that
preserve the government’s sovereign immunity under certain
circumstances. Id. §§ 1346(b), 2671-80. Nothing in the
language of the statute applies to suits brought against
independent contractors, like the defendants in these cases. In
fact, the reverse is true. Although the FTCA states that the term
“[e]mployee of the government” includes “employees of any
federal agency,” it expressly states that “the term ‘Federal
agency’ . . . does not include any contractor with the United
States.” Id. § 2671 (emphasis added).

In Boyle v. United Technologies Corp., the Supreme Court
invoked an implied, but direct conflict with the FTCA to
conclude that the manufacturer of a Marine helicopter could not
be held liable under state tort law for injury caused by a design
defect. 487 U.S. 500 (1988). The defendants and my colleagues
believe that “plaintiffs’ common law tort claims are controlled
by Boyle.” Slip Op. at 9. I agree. In this Part, I will explain
why a straightforward application of Boyle yields the conclusion
that preemption of the plaintiffs’ claims is unwarranted, and why
we should hesitate to extend Boyle beyond the scope of the
discretionary function exception and direct-conflict rationale
that the Court relied upon in that case. My “quarrel” is not with
Boyle -- as my colleagues suppose, id. at 10 -- but rather with
the way in which they have extended Boyle beyond its rationale.

A

Nothing in Boyle itself warrants the preemption of state tort
law in these cases. Boyle involved the co-pilot of a U.S. Marine
 10

helicopter who was killed when the helicopter crashed into the
ocean. His father brought a diversity action against the
contractor that built the helicopter for the United States, alleging
that the design was defective because the escape hatch opened
outward instead of inward -- rendering it inoperable in a
submerged craft. The first question the Supreme Court asked
was whether the case involved “uniquely federal interests.”
Boyle, 487 U.S. at 504-05. With little difficulty, the Court
concluded that “the liability of independent contractors
performing work for the Federal Government . . . is an area of
uniquely federal interest.” Id. at 505 n.1. There is likewise no
dispute regarding that question here.

But Boyle also declared that the fact that “the procurement
of equipment by the United States is an area of uniquely federal
interest does not . . . end the inquiry.” Id. at 507. “That merely
establishes a necessary, not a sufficient, condition for the
displacement of state law.” Id. “Displacement,” the Court
declared, “will occur only where . . . a significant conflict exists
between an identifiable federal policy or interest and the
[operation] of state law, or the application of state law would
frustrate specific objectives of federal legislation.” Id. (internal
citations and quotation marks omitted). “The conflict with
federal policy need not be as sharp as that which must exist for
ordinary pre-emption when Congress legislates in a field which
the States have traditionally occupied. . . . But conflict there
must be.” Id. at 507-08 (emphasis added) (internal quotation
marks omitted).

The Court began with a hypothetical illustrating an instance
when preemption would not be warranted. “[I]t is easy to
conceive,” the Court said, of a “situation[] in which the duty
sought to be imposed on the contractor” by state law “is not
identical to one assumed under the contract, but is also not
contrary to any assumed”:
 11

If, for example, the United States contracts for the
purchase . . . of an air conditioning-unit, specifying the
cooling capacity but not the precise manner of
construction, a state law imposing upon the
manufacturer of such units a duty of care to include a
certain safety feature would not be a duty identical to
anything promised the Government, but neither would
it be contrary. The contractor could comply with both
its contractual obligations and the state-prescribed duty
of care.

Id. at 509. “No one suggests that state law would generally be
pre-empted in this context,” the Court said. Id. By contrast to
the hypothetical air conditioner, however, the Court found a
significant conflict of duties in the case of the helicopter:

Here the state-imposed duty of care that is the asserted
basis of the contractor’s liability (specifically, the duty
to equip helicopters with the sort of escape-hatch
mechanism petitioner claims was necessary) is
precisely contrary to the duty imposed by the
Government contract (the duty to manufacture and
deliver helicopters with the sort of escape-hatch
mechanism shown by the specifications).

Id. (emphasis added).

The Court then invoked the FTCA’s “discretionary
function” exception to delimit the circumstances in which a
state-imposed duty that is “precisely contrary to” a government
contract should be preempted. The Court noted that one of the
circumstances that the FTCA excepted from the statute’s
consent to suit was for:
 12

[a]ny claim . . . based upon the exercise or performance
or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an
employee of the Government, whether or not the
discretion involved be abused.

Id. at 511 (emphasis added) (quoting 28 U.S.C. § 2680(a)).
“[T]he selection of the appropriate design for military equipment
to be used by our Armed Forces is assuredly a discretionary
function within the meaning of this provision,” the Court said,
and “state law which holds Government contractors liable for
design defects in military equipment does in some circumstances
present a ‘significant conflict’ with federal policy and must be
displaced.” Id. at 511-12 (emphasis added). The Court then
outlined “the scope of displacement” necessary to avoid such
conflict as follows:

Liability for design defects in military equipment
cannot be imposed, pursuant to state law, when (1) the
United States approved reasonably precise
specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United
States about the dangers in the use of the equipment
. . . . The first two of these conditions assure . . . that
the design feature in question was considered by a
Government officer, and not merely by the contractor
itself.

Id. at 512.

The contracts at issue in the instant cases are like the one
for the hypothetical air conditioner, not the helicopter. As in the
contract for the air conditioner, these contracts simply required
the contractors to provide particular receivables: interrogators
and interpreters. The “asserted basis of the contractor’s
 13

liability” -- the abuse of prisoners -- is plainly not “precisely
contrary to the duty imposed by the Government contract.” No
party’s pleadings contend that the government required or
authorized the contractor personnel at Abu Ghraib to do what
state law forbids. To the contrary, the plaintiffs’ contention is
that the contractors “acted unlawfully and without military
authorization.” Plaintiffs-Appellees’ Br. 46 (emphasis added);
see supra note 5.

Boyle has never been applied to protect a contractor from
liability resulting from the contractor’s violation of federal law
and policy. And there is no dispute that the conduct alleged, if
true, violated both.7 Hence, these cases are not “within the area
where the policy of the ‘discretionary function’ would be
frustrated,” and they present no “significant conflict” with
federal interests. Boyle, 487 U.S. at 512. Preemption is
therefore not justified under Boyle.

B

Recognizing that they cannot prevail under either the text
of the FTCA or the holding of Boyle, the defendants ask us to

7
My colleagues appear to acknowledge that, if the contractors’
employees committed the acts alleged here, their conduct would
violate U.S. law. See Slip Op. at 3 (citing 18 U.S.C. § 2340A
(torture); id. § 2441 (war crimes ); id. § 3261 (certain criminal
offenses committed by anyone “employed by or accompanying the
Armed Forces outside the United States”)); see also, e.g., 18 U.S.C.
§ 113 (describing assaults within the compass of § 3261). The Army
Field Manual requires contractors to “comply with all applicable US
and/or international laws.” U.S. DEP’T OF THE ARMY, FIELD MANUAL
3-100.21, CONTRACTORS ON THE BATTLEFIELD § 1-39 (2003); see also
REPORT OF MAJ. GEN. FAY at 12-13 (stating that “civilians who
accompany or work with the US Armed Forces” are “bound by
Geneva Conventions”).
 14

expand the scope of judge-made preemption. Instead of basing
preemption on the FTCA’s discretionary function exception --
the only exception Boyle discussed -- the defendants ask us to
extend Boyle to the exception for “claim[s] arising out of the
combatant activities of the military or naval forces . . . during
time of war.” 28 U.S.C. § 2680(j). That request finds no
support in either Boyle or other precedents.

At the heart of Boyle’s analysis is the doctrine of conflict
preemption. See supra Part II.A. As my colleagues note,
preemption under the discretionary function exception is in
accord with that doctrine, as it requires “a sharp example of
discrete conflict in which satisfying both state and federal duties
(i.e., by designing a helicopter hatch that opens both inward and
outward) was impossible.” Slip Op. at 13. By contrast,
preemption under the combatant activities exception is
extraordinarily broad; as employed by my colleagues, it results
not in conflict preemption but in “field preemption.” Id. at 10,
13. Given that using the FTCA to preempt suits against private
contractors is atextual, the Boyle Court’s decision to require
discrete conflict was quite sensible.

Moreover, if we go down this road and extend Boyle to the
combatant activities exception, there is no reason to stop there.
The FTCA’s exceptions are not limited to discretionary
functions and combatant activities. As my colleagues note, they
also include “any claim arising in a foreign country.” Slip Op.
at 10 n.3 (quoting 28 U.S.C. § 2680(k)). Hence, the “degree of
integration” test that my colleagues carefully construct for
combatant activities preemption, Slip Op. at 7, seems wholly
beside the point: the plaintiffs’ claims arose in Iraq, a foreign
country, so why should that not be the end of the matter?
Indeed, the FTCA has an additional exception that protects the
government from suit for “assault [and] battery” -- whether it
occurs abroad or in the United States. 28 U.S.C. § 2680(h). On
 15

the court’s theory, why should these exceptions not apply to
private contractors as well? Once we depart from the limiting
principle of Boyle, it is hard to tell where to draw the line.

The Supreme Court has never extended Boyle beyond the
discrete conflicts that application of the discretionary function
exception targets. Quite the opposite, in Correctional Services
Corp. v. Malesko, the Court described the Boyle defense as a
“special circumstance” in which the “government has directed
a contractor to do the very thing that is the subject of the claim.”
534 U.S. 61, 74 n.6 (2001). Wyeth v. Levine, the Supreme
Court’s most recent preemption case, further reflects the Court’s
unwillingness to read broad preemptive intent from
congressional silence. As Wyeth explained, the Court starts with
the presumption that state law is not to be superseded “unless
that was the clear and manifest purpose of Congress.” 129 S.
Ct. 1187, 1194-95 (2009) (quoting Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996)). The Court “rel[ies] on the presumption
because respect for the States as ‘independent sovereigns in our
federal system’ leads us to assume that ‘Congress does not
cavalierly pre-empt state-law causes of action.’” Id. at 1195 n.3
(quoting Medtronic, 518 U.S. at 485). Thus, Wyeth counsels
against extending Boyle beyond its holding, as the FTCA
evidences no “clear and manifest purpose of Congress” to
preempt state-law actions against contractors under the
combatant activities exception. Id. at 1195. Although my
colleagues perceive support for their own position in Wyeth -- a
decision in which the Court found that a federal statute did not
preempt state tort claims -- I do not see it. It may be that
congressional intent “is much clearer in the case of the statutory
text of the combatant activities exception” than in “federal drug
regulations.” Slip Op. at 19. But the only intent that is clear in
the former text is the intent to preserve sovereign immunity in
suits against the United States. The FTCA says nothing at all
about suits against “contractors” other than that contractors are
 16

not “federal agenc[ies]” for purposes of the Act. 28 U.S.C. §
2671.

No other circuit court has gone as far as our circuit goes
today. Koohi v. United States was, like Boyle, a products
liability case. 976 F.2d 1328 (9th Cir. 1992). There, the Ninth
Circuit did apply the combatant activities exception to bar suit
against the manufacturer of an air defense system deployed on
a U.S. naval vessel that shot down an Iranian aircraft. As my
colleagues recognize, however, the Ninth Circuit’s rationale was
that tort liability is inappropriate where “force is directed as a
result of authorized military action.” Slip Op. at 12 (emphasis
added) (quoting Koohi, 976 F.2d at 1337). Unlike the situation
in Koohi, where sailors fired the weapon, there is no claim here
that the force used against the plaintiffs was either “directed” or
“authorized” by U.S. military personnel.

Nor are my colleagues assisted by the foreign policy cases
they cite. Slip Op. at 20-21. Those cases involved preemption of
state laws that were specifically targeted at issues concerning
the foreign relations of the United States, a description the court
does not dispute.8 Moreover, in virtually all of them, the

8
Rather than dispute this, the court notes that it is “a black-letter
principle of preemption law that generally applicable state laws may
conflict with and frustrate the purposes of a federal scheme just as
much as a targeted state law.” Slip Op. at 21 n.8 (emphasis added).
As long as the word “may” is emphasized, that principle is correct.
But this does not call into question the fact that no precedent has
employed a foreign policy analysis to preempt generally applicable
state laws (not to mention the fact that there is also no “federal
scheme” here). See Jack Goldsmith, Federal Courts, Foreign Affairs,
and Federalism, 83 VA. L. REV. 1617, 1711 (1997) (explaining that
foreign affairs preemption should be limited to, at most, state laws that
purposely interfere with foreign policy, not state laws that “are facially
neutral and were not designed with the purpose of influencing U.S.
 17

preempted state laws conflicted with express congressional or
executive policy regarding the targeted issues. Although the
court does dispute this description as to two of the cited cases,
the description is accurate. In American Insurance Association
v. Garamendi, the Supreme Court found a “clear conflict”
between a California statute applying only to Holocaust-era
insurance “policies issued by European companies, in Europe,
to European residents,” and “express federal policy” contained
in Executive Branch agreements with Germany, Austria, and
France. 539 U.S. 396, 425-26 (2003). Similarly, in Crosby v.
National Foreign Trade Council, the Court preempted a state
statute that expressly purported to regulate foreign commerce
with Burma in ways that “undermine[d] the intended purpose
and ‘natural effect’” of a congressional sanctions regime aimed
directly at Burma. 530 U.S. 363, 373 (2000).9

foreign relations”). The three additional Supreme Court cases that the
court cites, Slip Op. at 21 n.8, are simply inapposite. None involved
foreign policy and all three involved statutory provisions that
expressly preempted state law. See Riegel v. Medtronic, Inc., 128 S.
Ct. 999, 1007-8 (2008); Bates v. Dow Agrosciences LLC, 544 U.S.
431, 442-43 (2005); Cipollone v. Liggett Group, Inc., 505 U.S. 504,
520-23 (1992) (plurality opinion).
9
See also Zschernig v. Miller, 389 U.S. 429, 432, 440 (1968)
(holding that an Oregon probate statute, which barred residents’
inheritances from going to heirs in countries with confiscatory
property laws, was being used to “withhold[] remittances to legatees
residing in Communist countries” and thereby “intru[de] . . . into the
field of foreign affairs”); Hines v. Davidowitz, 312 U.S. 52, 67, 74
(1941) (concluding that Pennsylvania’s Alien Registration Act “stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress” in enacting “a single integrated
and all-embracing system” in the federal Alien Registration Act). See
generally Medellin v. Texas, 128 S. Ct. 1346, 1371-72 (2008)
(describing Garamendi as a mere foreign “claims-settlement case[]
 18

The cases before us, by contrast, involve the application of
facially neutral state tort law. And there is no express
congressional or executive policy with which such law conflicts.
See infra Part II.C.10 No precedent has employed a foreign
policy analysis to preempt state law under such circumstances.11

involv[ing] a narrow set of circumstances”); Garamendi, 539 U.S. at
417 (describing Zschernig as involving a state law that “in practice
had invited minute inquiries concerning the actual administration of
foreign law and so was providing occasions for state judges to
disparage certain foreign regimes” (internal citation and quotation
marks omitted)). The remaining case cited by the court, Japan Line,
Ltd. v. County of Los Angeles, 441 U.S. 434 (1979), involved
application of the Constitution’s Foreign Commerce Clause to state
taxation of foreign commerce.
10
In a footnote to this part of their argument, my colleagues list
a miscellany of federal civil and criminal statutes relating to torture.
Although they describe the list as “comprehensive,” Slip Op. at 23 n.9,
that description is not Congress’ characterization, but theirs. Nor is
there any evidence that Congress affirmatively “declined to create a
civil tort cause of action that plaintiffs could employ,” id. (emphasis
added) -- let alone that Congress intended these statutes to displace
existing state or federal law. Indeed, the only evidence of the purpose
of the principal civil statute the court cites, the Torture Victim
Protection Act, 28 U.S.C. § 1350 note, is that it was intended to
“enhance the remedy already available” for torture victims under the
ATS, S. REP. NO. 102-249, at 5 (1991); see H.R. REP. NO. 102-367, at
4 (1991) (same). As for the federal criminal statutes, Congress has
passed a myriad of such statutes covering virtually every area of
modern life, and no court has ever suggested that in so doing the
legislature intended to preempt existing state laws. If anything, the
cited statutes -- all of which condemn torture -- confirm that there is
no conflict between state law and federal policy on that issue.
11
Cf. Medellin, 128 S. Ct. at 1371-72 (refusing to preempt a
“neutrally applicable state law[]” despite the President’s affirmative
 19

C

My colleagues acknowledge that the “nature of the conflict”
they perceive in these cases is “somewhat different from that in
Boyle -- a sharp example of discrete conflict in which satisfying
both state and federal duties . . . was impossible.” Slip Op. at
13. “Rather,” they say, here “it is the imposition per se” of state
tort law “that conflicts with the FTCA’s policy of eliminating
tort concepts from the battlefield.” Id. (emphasis added). In
short, the court’s decision to utilize the combatant activities
exception requires it to shift from preemption based on conflict-
of-duty to preemption based on conflict-of-policy. But even if
this shift were justified, we would still have no basis for ruling
that such a conflict of policy exists.

1. According to the court, “the policy embodied by the
combatant activities exception is simply the elimination of tort
from the battlefield,” and that policy is “equally implicated
whether the alleged tortfeasor is a soldier or a contractor” under
the circumstances at issue in these cases. Slip Op. at 12. The
court is plainly correct that the FTCA’s policy is to eliminate the
U.S. government’s liability for battlefield torts. That, after all,
is what the FTCA says. But it is not plain that the FTCA’s
policy is to eliminate liability when the alleged tortfeasor is a
contractor rather than a soldier. That, after all, is not what the
FTCA says. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S.
83, 98 (1991) (declaring that “[t]he best evidence of
[congressional] purpose is the statutory text”). Nor, as the court

submission that United States foreign policy would be undermined);
Garamendi, 539 U.S. at 425-26 (preempting a California insurance
statute, but distinguishing it from “a generally applicable ‘blue sky’
law” because the California statute “effectively singles out only
policies issued by European companies, in Europe, to European
residents”).
 20

recognizes, is there any support for its position in the “singularly
barren” legislative history of the combatant activities exception.
Slip Op. at 11 (quoting Johnson v. United States, 170 F.2d 767,
769 (9th Cir. 1948)).

Congress knows full well how to make its intention to
preclude private liability known. See, e.g., 22 U.S.C. § 2291-
4(b) (providing that interdiction of an aircraft over foreign
territory pursuant to a presidentially approved program “shall
not give rise to any civil action . . . against the United States or
its employees or agents” (emphasis added)). It has not done so
here. Rather, as already discussed, Congress expressly excluded
contractors from the definition of federal agencies that retained
sovereign immunity under the exceptions to the Act. See 28
U.S.C. § 2671.

Indeed, because the FTCA concerns only the immunity of
the United States, the FTCA itself does not even protect soldiers
or other government employees from tort suits. That protection
is afforded by the Westfall Act, which provides that, “[u]pon
certification by the Attorney General that the defendant
employee was acting within the scope of his office or
employment,” the federal employee is dismissed and “the
United States shall be substituted as the party defendant.” 28
U.S.C. § 2679(d)(1). “Thereafter, the suit is governed by the
FTCA and is subject to all of the FTCA’s exceptions” to the
waiver of sovereign immunity, including the combatant
activities exception. Wuterich v. Murtha, 562 F.3d 375, 380
(D.C. Cir. 2009); see 28 U.S.C. § 2679(d)(4).

But contractors are not covered by the Westfall Act either.
In fact, because that Act uses the FTCA’s definitions, they are
again expressly excluded from its protections. 28 U.S.C. §
2671. And yet, the court preempts this state tort action without
requiring (or receiving) the Attorney General certification that
 21

would have been necessary had the defendants been government
employees rather than private contractors. It thus grants private
contractors more protection than our soldiers and other
government employees receive. Such a congressional policy
cannot be inferred from the language of the FTCA.

2. There is also no indication that the Executive Branch
shares the court’s judgment that military contractors must be
exempt from tort law. To the contrary, DOD has advised
contractors that accompany the Armed Forces in the field that
they are subject to civil liability, and it has rejected a request to
extend Boyle to all combatant activities. Moreover, it has lent
no support whatsoever to the defense of the contractors here.

In a rulemaking “to implement DoD policy regarding
contractor personnel authorized to accompany U.S. Armed
Forces deployed outside the United States,” the Department
explicitly advised military contractors that “[i]nappropriate use
of force could subject a contractor or its subcontractors or
employees to prosecution or civil liability under the laws of the
United States and the host nation.” Contractor Personnel
Authorized to Accompany U.S. Armed Forces, 73 Fed. Reg.
16,764, 16,764, 16,767 (Mar. 31, 2008) (emphasis added)
[hereinafter DFARS Rule]; see 48 C.F.R. § 252.225-7040(b)(3)
(iii) (same).12 When contractors expressed concern about the
consequences of this advisory for their defenses in tort litigation,
DOD made clear that it thought “the rule adequately allocates
risks.” DFARS Rule, 73 Fed. Reg. at 16,768. And it
specifically rejected a suggestion that it “invite courts” to
expand the reach of Boyle by adopting “language that would

12
As there is no existing federal common law of torts that could
impose civil liability, DOD’s warning of civil liability under the laws
of the United States can only be a reference to state tort law.
 22

immunize contractors from tort liability.” Id. The Department
stated:

[T]he clause retains the current rule of law, holding
contractors accountable for the negligent or willful
actions of their employees, officers, and
subcontractors. . . . The public policy rationale behind
Boyle does not apply when a performance-based
statement of work is used in a services contract,
because the Government does not, in fact, exercise
specific control over the actions and decisions of the
contractor or its employees or subcontractors. . . .
Contractors will still be able to defend themselves
when injuries to third parties are caused by the actions
or decisions of the Government. However, to the
extent that contractors are currently seeking to avoid
accountability to third parties for their own actions by
raising defenses based on the sovereignty of the United
States, this rule should not send a signal that would
invite courts to shift the risk of loss to innocent third
parties.

Id.13

Nor has the Executive Branch evinced any concern about
the imposition of tort liability in the cases now before us,
notwithstanding the Army’s knowledge of the ongoing

13
The court states that “there is no indication” in the above-quoted
statement that DOD “considered, much less ruled out, whether tort
suits against service contractors working within the military chain of
command should be preempted.” Slip Op. at 17 (emphasis added).
But as discussed below, DOD’s position is that contractors are not
within the military chain of command. See infra Part III.A.
 23

litigation.14 My colleagues are nonetheless convinced that the
failure to institute criminal proceedings against the contractors
“indicates the government’s perception of the contract
employees’ role in the Abu Ghraib scandal.” Slip Op. at 18.15
No such inference from prosecutorial silence is warranted. The
government may well believe that it faces a jurisdictional barrier
to prosecution, see supra note 3; it may lack the evidence that
these plaintiffs have; it may feel that its evidence is insufficient
to satisfy the higher burden of proof applicable to a criminal
prosecution; or it may simply prefer to rely on the tort system.
What we cannot conclude, however, is that the government
doubts “the contract employees’ role in the Abu Ghraib
scandal.” Slip Op. at 18. See REPORT OF MAJ. GEN. FAY at 130-
34 (implicating two Titan and three CACI employees in
wrongdoing at Abu Ghraib); id. at 84 (finding that “[t]he use of
dogs in the manner directed by” a CACI employee “was clearly
abusive and unauthorized”); id. at 133 (finding that a Titan
employee “[a]ctively participated in detainee abuse”).

The position DOD took in its rulemaking on contractor
liability may reflect the government’s general view that

14
Compare Garamendi, 539 U.S. at 411, 413 (citing a letter from
Deputy Secretary Eizenstat to California officials stating that the
California statute threatened to derail U.S. negotiations with Germany,
and the amicus brief of the United States in support of preemption);
Crosby, 530 U.S. at 386 (reasoning that “repeated representations by
the Executive Branch . . . demonstrate that the state Act stands in the
way of Congress’s diplomatic objectives”); Boyle, 487 U.S. at 501-02
(in which the United States appeared as amicus curiae in support of
preemption); Hines, 312 U.S. at 56 (same).
15
The court also states that no “disciplinary” or “contract
proceedings” have been instituted. Slip Op. at 18. There is, however,
nothing in the record indicating whether such proceedings have been
brought.
 24

permitting contractor liability will advance, not impede, U.S.
foreign policy by demonstrating that “the United States is
committed to ensuring that its contractors are subject to proper
oversight and held accountable for their actions.” U.S. Dep’t of
State, Press Release, Department of State Legal Adviser
Promotes Accountability for Private Military and Security
Companies (Sept. 17, 2008).16 The government may have
refrained from participating in the two cases now before us for
the same reason. As President Bush stated, “the practices that
took place in that prison are abhorrent and they don’t represent
America.” White House, Press Release, President Bush Meets
with Al Arabiya Television, 2004 WLNR 2540883 (May 5,
2004). Under these circumstances, the government’s failure to
defend the contractors may reflect the Executive Branch’s view
that the country’s interests are better served by demonstrating
that “people will be held to account according to our laws.”
White House, Press Release, Press Conference of the President,
2006 WLNR 10248633 (June 14, 2006). And the Executive
may believe that one way to show that “people will be held to
account” is to permit this country’s legal system to take its
ordinary course and provide a remedy for those who were
wrongfully injured.

None of this is to suggest that we can know with certainty
the unexpressed policy views of Congress or the Executive, or
to discount the reasonableness of the policy concerns expressed
by my colleagues. Quite the contrary. But the existence of
plausible yet divergent assessments of the policy consequences
of tort liability further counsels against judicial preemption. If
Congress believes that such liability would hamper the war
effort, it can amend the FTCA or the Westfall Act to protect

16
Available at http://geneva.usmission.gov/Press2008/September/
0917PrivateSecurity.html.
 25

private contractors. If the Executive is of that view, it can say
so.

Under the rule adopted today, however, the court has
removed an important tool from the Executive’s foreign policy
toolbox. Even if the Executive believes that U.S. interests
would be advanced by subjecting private contractors to tort
liability under these circumstances, today’s decision makes it
impossible to accomplish that end absent congressional action.
That is a particularly ironic consequence of a rule that the court
adopts based upon a quite proper concern that the Judiciary not
interfere with the Executive’s flexibility in the area of foreign
policy.

3. In addition to their argument that the imposition of tort
liability on contractors constitutes a per se conflict with the
policy of the political branches, my colleagues raise more
specific policy conflicts they believe tort suits would engender.
Slip Op. at 13-14.

The court notes, for example, that “the costs of imposing
tort liability on government contractors [will be] passed through
to the American taxpayer, as was recognized in Boyle.” Id. at
13. The Boyle Court did indeed recognize the risk of a monetary
pass-through, but it did not respond by preempting all tort
liability for government contractors. In fact, the Court thought
that was “too broad” a response to the potential pass-through
problem, Boyle, 487 U.S. at 510, and instead barred recovery
only where there was a direct conflict with a government-
imposed duty, see id. at 512.

My colleagues also express concern that, in the absence of
preemption, U.S. military personnel will be haled into court or
deposition proceedings involving private contractors. Slip Op.
at 13. But that concern does not require across-the-board
 26

preemption. Where discovery would hamper the military’s
mission, district courts can and must delay it -- until personnel
return stateside, or until the end of the war if necessary.17 Where
production of witnesses or documents would damage national
security regardless of timing, the usual privileges apply.18 To
deny preemption is not to grant plaintiffs free reign.19

17
See Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007) (noting
that district courts have the tools, “in cases involving third-party
subpoenas to government agencies or employees,” to “properly
accommodate the government’s serious and legitimate concern that its
employee resources not be commandeered into service by private
litigants to the detriment of the smooth functioning of government
operations” (internal quotation marks omitted)).
18
See Watts, 482 F.3d at 508 (noting that Federal Rule of Civil
Procedure 45 “requires that district courts quash subpoenas that call
for privileged matter or would cause an undue burden”); Ibrahim, 391
F. Supp. 2d at 16 (declining “to dismiss otherwise valid claims at this
early stage,” but suggesting that the court would dismiss if
“[m]anageability problems” emerge, “especially if discovery collides
with government claims to state secrecy”).
19
The court further suggests that “allowance of these claims will
potentially interfere with the federal government’s authority to punish
and deter misconduct by its own contractors.” Slip Op. at 14. The
court does not say why punishment and civil liability cannot coexist,
or indeed, why they do not complement each other. The prospect of
material interference is hardly self-evident, as parallel government and
private litigation is the norm in cases ranging from assault, to antitrust,
to securities regulation. See, e.g., Wyeth, 129 S. Ct. at 1202 (noting
that state law tort suits can complement federal enforcement by the
FDA). In any event, the executive branch -- which presumably knows
more about what would interfere with its prerogatives than we do --
has taken the position that civil liability should be available against
military contractors. See supra Part II.C.2.
 27

4. The court further suggests that the broad field preemption
it prescribes is required to properly balance the federal and state
interests at stake in this kind of litigation. In support of this
contention, the court declares that the “federal government’s
interest in preventing military policy from being subjected to
fifty-one separate sovereigns . . . is not only broad -- it is also
obvious.” Slip Op. at 19. The point is indeed obvious, but also
inapposite. As discussed above, there is nothing in the pleadings
or record to suggest that the abuse alleged here was part of any
“military policy.” Moreover, even if there were a jurisdiction
whose tort law conflicted with military policy, Boyle itself
would provide a narrower answer: selective preemption of
“only particular elements” of the state’s law. Boyle, 487 U.S. at
508 (citing United States v. Little Lake Misere Land Co., 412
U.S. 580, 595 (1973), for the proposition that, “assuming state
law should generally govern federal land acquisitions, [the]
particular state law at issue may not”).20

The court also expresses puzzlement over what interest any
state could “have in extending its tort law onto a foreign
battlefield.” Slip Op. at 17. But there is no issue of “extending”
a state’s law here; the case involves only the application of a
state’s traditional, generally applicable tort law. That such law

20
My colleagues repeatedly raise the specter that the district court
might apply Iraqi tort law. See Slip Op. at 11, 12, 19. But the
plaintiffs reject Iraqi law as a basis for their claims, and the district
court did not contemplate it. Plaintiffs-Appellees’ Br. 53-54. Nor is
it a realistic possibility. As we explained in Sami v. United States,
“prevailing conflicts [of law] principles . . . permit application of an
alternate substantive law when foreign law conflicts with a strong
public policy of the forum.” 617 F.2d 755, 763 (D.C. Cir. 1979)
(footnote omitted). But even if that specter were more corporeal, it
would at most warrant application of the selective preemption option
mentioned above and discussed in Boyle, 487 U.S. at 508, not the kind
of field preemption adopted in today’s ruling.
 28

may apply to conduct in a foreign country is hardly unusual.
Under the Foreign Sovereign Immunities Act, for example, state
tort law typically provides a cause of action even for plaintiffs
who sue foreign sovereigns, including for conduct that takes
place abroad.21

This is not to deny that many states would indeed have little
or no interest in this particular litigation. But it is not clear that
Virginia and California,22 the states in which CACI and Titan
maintain their principal places of business, have no interest in
ensuring that their corporations refrain from abusing prisoners --
even in a foreign country. See RESTATEMENT (SECOND) OF
CONFLICT OF LAWS § 9 cmt. f (1971) (“[A] person is most
closely related to the state of his domicil[e], and this state has
jurisdiction to apply its local law to determine certain of his
interests even when he is outside its territory. It may, for
example, . . . forbid him to do certain things abroad.”).

More important, even if the court were correct that “the
interests of any U.S. state . . . are de minimis in this dispute”
because “all alleged abuse occurred in Iraq against Iraqi
citizens,” Slip Op. at 21, today’s decision cuts a much wider
swath. It would bar suit even if the victims of the contractors’

21
See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 685 &
n.4 (2004); First Nat’l City Bank v. Banco Para El Comercio Exterior
de Cuba, 462 U.S. 611, 622 n.11; Verlinden B.V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 491 (1983); Kilburn v. Socialist People’s
Libyan Arab Jamahiriya, 376 F.3d 1123, 1125, 1129 (D.C. Cir. 2004).
22
The Saleh plaintiffs originally filed their complaint in federal
district court in Titan’s home jurisdiction of California, from which
the case was transferred at CACI’s request. Saleh v. Titan Corp., 361
F. Supp. 2d 1152, 1155 (S.D. Cal. 2005). Our district court has not yet
addressed the question of which state law should apply, having limited
initial proceedings to the question of preemption.
 29

assaults were fellow Virginians or Californians -- including
fellow employees of the same contractors. See, e.g., Jones v.
Halliburton Co., 625 F. Supp. 2d 339 (S.D. Tex. May 9, 2008)
(tort suit by a Texas woman alleging rape by fellow contractor
employees in Iraq). Indeed, the decision would bar suit even if
the victims were soldiers whom the contractors were hired to
support. The rule the court has announced, then, is not truly one
in which the “breadth of displacement” of state law is “inversely
proportional to state interests.” Slip Op. at 21. Rather, and
notwithstanding its best intentions, the court has crafted a rule
that overrides state interests altogether, regardless of their
strength in a given case.

In any event, there are certainly ways short of broad
preemption to ensure that a trial court neither asserts jurisdiction
over a case that lacks a significant connection with the forum,
nor applies the law of a state with no interest in the matter. The
doctrine of forum non conveniens is one such tool.23 So, too, are
the limits that states impose on the extraterritorial reach of their
own courts,24 as well as limitations imposed by the
Constitution’s Due Process Clause.25 Indeed, if my colleagues

23
See, e.g., Torres v. S. Peru Copper Corp., 113 F.3d 540, 541
(5th Cir. 1997) (dismissing extraterritorial tort claims under forum non
conveniens).
24
See, e.g., Gorman v. Ameritrade Holding Corp., 293 F.3d 506,
509-10 (D.C. Cir. 2002) (noting the limits of the District of
Columbia’s long-arm statute).
25
See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985)
(barring extraterritorial application of a state’s substantive law unless
the state has a “significant contact or significant aggregation of
contacts, creating state interests, such that choice of its law is neither
arbitrary nor fundamentally unfair”); see also Helicopteros Nacionales
de Colom., S.A. v. Hall, 466 U.S. 408, 414 (1984) (holding that, for in
 30

are right about the state interests at stake here, it is possible that
one of these doctrines could end these cases without resort to
nontextual preemption.

Finally, even if the prospect of applying state laws in this
kind of case would present an insurmountable conflict with
federal interests, Boyle again counsels a different disposition
from that which my colleagues adopt. As Boyle explained,
“where the federal interest requires a uniform rule, the entire
body of state law applicable to the area conflicts [with] and is
replaced by federal rules.” 487 U.S. at 507 (emphasis added).
Accordingly, where the Supreme Court finds field preemption
appropriate, it does not normally preempt state law and simply
leave the field vacant. Instead, it substitutes a federal common
law regime.26 That is what the Court did in Clearfield Trust Co.
v. United States, the case my colleagues cite as the archetypal
example of “field preemption.” Slip Op. at 10, 11; see 318 U.S.
363, 366-67 (1943) (holding that the rights and obligations of
the United States with respect to commercial paper must be
governed by a uniform federal rule). It is also what my
colleagues’ own analysis would dictate. See Slip Op. at 13
(arguing that the government’s “interest in combat is always

personam jurisdiction to be asserted over a nonresident corporate
defendant, there must be “‘certain minimum contacts with [the forum]
such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice’” (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945))).
26
See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
427 (1964) (displacing New York’s “act of state” rule because “the
scope of the act of state doctrine must be determined according to
federal law”); Textile Workers Union of Am. v. Lincoln Mills of Ala.,
353 U.S. 448, 456 (1957) (holding that, because collective bargaining
agreements require uniform interpretation, federal law based on “the
policy of our national labor laws” must substitute for state law).
 31

‘precisely contrary’ to the imposition of a non-federal tort duty”
(emphasis added)). Yet here, the court simply leaves the field.27

III

For the reasons just stated, the preemption question in these
cases should be controlled by Boyle, which authorizes
displacement of state law only when a federal contract imposes
a directly conflicting duty on a contractor. Because there is no
such conflict here -- indeed, because the duties imposed are
congruent rather than incompatible -- there is no warrant for
preemption.

Nonetheless, I cannot say that my colleagues’ arguments in
favor of extending Boyle to the combatant activities exception
lack weight. What I can say, in agreement with them, is that
even if we do extend Boyle, “the ‘scope of displacement’ of the
preempted non-federal substantive law must be carefully
tailored so as to coincide with the bounds of the federal interest
being protected.” Slip Op. at 14 (quoting Boyle, 487 U.S. at
512). Subpart III.A sets out what the appropriate “scope of
displacement” would be were we to rely upon the combatant
activities exception, and then explains why these cases fall
outside that scope. Subpart III.B discusses the problems posed
by the essentially untailored test my colleagues apply instead.

27
The court states that preemption of state law will not leave the
plaintiffs “totally bereft of all remedies . . . as they will still retain
rights under the Foreign Claims Act.” Slip Op. at 14. But plaintiffs
have no “rights” under that Act, which merely authorizes designated
officials to make (or not make) certain payments as a matter of their
unreviewable discretion. 10 U.S.C. §§ 2734, 2735; see Collins v.
United States, 67 F.3d 284, 286-89 (Fed. Cir. 1995); Niedbala v.
United States, 37 Fed. Cl. 43, 46, 50 (1996).
 32

A

The FTCA’s combatant activities exception preserves the
United States’ sovereign immunity for “[a]ny claim arising out
of the combatant activities of the military or naval forces . . .
during time of war.” 28 U.S.C. § 2680(j). According to the
statutory text, that exception -- like the discretionary function
exception, the other exceptions, and the FTCA as a whole --
applies only in “civil actions . . . against the United States” and
only for injuries caused by an “employee of the Government.”
Id. § 1346(b)(1). In light of the FTCA’s text, the Boyle Court
crafted preemption conditions that would assure that the
discretionary function in question “was considered by a
Government officer, and not merely by the contractor itself.”
487 U.S. at 512. If we are to extend Boyle to the combatant
activities exception, we must demand the same assurance.
Hence, for preemption to be appropriate, it must be for “claim[s]
arising out of the combatant activities of the military or naval
forces,” 28 U.S.C. § 2680(j) (emphasis added), and not for those
arising out of acts performed “by the contractor itself,” Boyle,
487 U.S. at 512.

How, then, can we tell whether a contractor’s conduct
actually involved the combatant activities of the military? In
this respect, I agree with my colleagues that, at a minimum, the
contractor must be “under the military’s control.” Slip Op. at
12. I disagree, however, as to how to determine the existence of
such control. In the military, control is achieved through the
chain of command. And the official view of the U.S.
Department of Defense is that private contractors accompanying
the Armed Forces in the field are not in that chain.

The DOD’s position, as set out in its regulations governing
“Contractors Accompanying the Force,” is that contractors are
responsible for the supervision of their own employees and that
 33

their personnel are not in the military chain of command. The
regulations state:

The commercial firm(s) providing battlefield support
services will perform the necessary supervisory and
management functions of their employees. Contractor
employees are not under the direct supervision of
military personnel in the chain of command.

U.S. DEP’T OF THE ARMY, REG. 715-9, CONTRACTORS
ACCOMPANYING THE FORCE § 3-2(f) (1999). The regulations
further state: “Contracted support service personnel shall not be
supervised or directed by military or Department of the Army
(DA) civilian personnel.” Id. § 3-3(b). Titan’s contract with the
Army is consistent with this position. See Titan Statement of
Work § C-1.1 (Titan J.A. 386) (“The Contractor shall provide all
. . . supervision, and other items and services . . . necessary to
provide foreign language interpretation and translation services
in support of United States (U.S.) Forces.”).28

The Army Field Manual on “Contractors on the Battlefield”
is, if anything, even more emphatic on these points:

Management of contractor activities is accomplished
through the responsible contracting organization, not
the chain of command. Commanders do not have
direct control over contractors or their employees
(contractor employees are not the same as government

28
Titan’s contract further states that “[p]ersonnel performing work
under this contract shall remain employees of the Contractor and will
not be considered employees of the Government.” Id. § C-1.4.1 (Titan
J.A. 387). CACI’s contract states that its employees “are considered
non-combatants.” CACI Statement of Work ¶ 20(j) (CACI J.A. 332).
 34

employees); only contractors manage, supervise, and
give directions to their employees.

U.S. DEP’T OF THE ARMY, FIELD MANUAL 3-100.21,
CONTRACTORS ON THE BATTLEFIELD § 1-22 (2003). As the
Field Manual further explains:

It is important to understand that the terms and
conditions of the contract establish the relationship
between the military (US Government) and the
contractor; this relationship does not extend through
the contractor supervisor to his employees. Only the
contractor can directly supervise its employees. The
military chain of command exercises management
control through the contract.

Id. § 1-25; see also id. § 4-45 (“Maintaining discipline of
contractor employees is the responsibility of the contractor’s
management structure, not the military chain of command. . . .
It is the contractor who must take direct responsibility and action
for his employee’s conduct.”); JOINT CHIEFS OF STAFF, JOINT
PUB. 4-0, DOCTRINE FOR LOGISTIC SUPPORT OF JOINT
OPERATIONS, at V-8 (2000) (Titan J.A. 568) (stating that
“[c]ontract employees are disciplined by the contractor” and that
“[c]ommanders have no penal authority to compel contractor
personnel to perform their duties”).

In sum, under the existing regulatory regime, contractor
personnel are not subject to the command and control of the
military. The responsibility for their supervision belongs to
their civilian employers. “Management of contractor activities
is accomplished through the responsible contracting
organization, not the chain of command.” FIELD MANUAL 3-
100.21, § 1-22. And “[c]ontracted support service personnel
shall not be supervised or directed by military or Department of
 35

the Army (DA) civilian personnel.” ARMY REG. 715-9, § 3-3(b).
The government exercises control only “through the contract,”
FIELD MANUAL 3-100.21, § 1-25, which gives the government
no more control than any contracting party has over its
counterparty. And that -- without more -- is not enough to make
the conduct of a contractor “the combatant activities of the
military or naval forces.” 28 U.S.C. § 2680(j) (emphasis
added).

Of course, the fact that preemption is not warranted by
application of the combatant activities exception does not mean
that preemption is never warranted. If a plaintiff challenges
contractor activity that has been authorized or directed by the
military, preemption by application of the discretionary function
exception may result -- as it did in Boyle. There is no evidence
in the record of these cases, however, that the brutality the
plaintiffs allege was authorized or directed by the United States.

B

My colleagues reach a different disposition than I do under
the combatant activities exception because they employ a
different test for preemption. The test they adopt is as follows:
“During wartime, where a private service contractor is
integrated into combatant activities over which the military
retains command authority, a tort claim arising out of the
contractor’s engagement in such activities shall be preempted.”
Slip Op. at 16. But what does “integrated into” mean? How
“integrated” into combatant activities must the contractor be?
And what does “retains command authority” mean in light of the
DOD regulations discussed above? My colleagues have created
a vague and amorphous test and, in so doing, have invited
precisely the kind of litigation they fear.
 36

Today’s opinion further holds that “the district judge
properly focused” not on “the contract terms,” but “on the chain
of command and the degree of integration that, in fact, existed
between the military and both contractors’ employees.” Slip
Op. at 7 (emphasis added). But why should that be the proper
focus? Why should we ignore the military’s own description of
its chain of command -- as set forth in its contracts, regulations,
and manuals -- and instead investigate the facts on the ground?
Does this not again invite the wide-ranging judicial inquiry --
with affidavits, depositions, and conflicting testimony -- that the
court rightly abjures? The irony is again evident: we must have
a robust contractor defense so as not to interfere with the
Executive’s conduct of war; but in applying that defense, we do
not take the military at its word and instead inquire into the
actual operation of its chain of command.

None of these problems are apparent in today’s opinion, but
that is only because the court does not apply its test to the facts
of these cases. Instead, it simply states that “there is no dispute
that [the contract employees] were in fact integrated and
performing a common mission with the military under ultimate
military command.” Slip Op. at 11. But there is in fact
considerable dispute over whether the contract employees were
truly under the military’s command at Abu Ghraib. The
plaintiffs made that point in this court,29 and they submitted
substantial evidence of lack of military control in the district
court.

For example, the plaintiffs submitted an affidavit from the
Brigadier General in charge at Abu Ghraib, who declared: “The

29
See, e.g., Plaintiffs-Appellants’ Br. 25 (“A reasonable jury could
certainly find that the [Titan] translators who conspired with CACI
employees to abuse Plaintiffs were not under the United States
military’s command or control.”).
 37

Titan translators and other corporate employees were not
integrated into the military chain of command. . . . [M]ilitary
officials could not give Titan translators and other corporate
employees direct orders.” Decl. of Brig. Gen. Janis Karpinski
¶ 7 (Titan J.A. 725-26). Similarly, an affidavit from a Military
Intelligence Specialist at the prison stated: “Titan translators
. . . did not act like soldiers, and my unit did not treat them like
soldiers. They did not fall within the military chain of command
. . . . [W]e had no means of disciplining Titan translators if they
did not do what we requested.” Decl. of Anthony Lagouranis
¶¶ 11-12 (Titan J.A. 733). Affidavits from Titan employees
were in accord. A Titan Translator affirmed that: “I received
assignments from soldiers, and tried to maintain a good
relationship with them, but they could not give me orders. I was
employed by Titan -- and only Titan could fire me. I did not
report to a military chain of command.” Decl. of Marwan
Mawiri ¶ 9 (Titan J.A. 519). And a Titan employee who
supervised Titan translators in Iraq declared: “Only the Titan
management had the power to supervise and discipline Titan
translators. . . . The military could not fire or discipline a Titan
employee.” Decl. of Thomas Crowley ¶¶ 7-8 (Titan J.A. 515).

Needless to say, there was contrary evidence as well. But
surely the plaintiffs’ testimonial affidavits, alone or in
combination with DOD’s regulatory and contractual statements,
are sufficient to create a genuine issue of material fact. And for
that reason, the defendants are not entitled to judgment as a
matter of law at the current stage of this litigation, even under
my colleagues’ own test. See FED. R. CIV. P. 56(c) (providing
that summary judgment should be granted only if “there is no
genuine issue as to any material fact”); see also Boyle, 487 U.S.
at 514 (holding that “whether the facts establish the conditions
for the [preemption] defense is a question for the jury”). That
the court does not reach this conclusion only confirms the
 38

breadth of the protective cloak it has cast over the activities of
private contractors.30

IV

No congressional statute bars the plaintiffs’ state-law
actions from running their ordinary course in these cases.
Indeed, the only cited statute suggests the opposite. No
statement of the Executive Branch declares that its interests
require dismissal of these cases. Again, the only indications we
have from the government are to the contrary. Nor is there any
claim that “the state-imposed duty of care that is the asserted
basis of the contractor[s’] liability . . . is precisely contrary to the
duty imposed by the Government contract,” Boyle, 487 U.S. at
509, or even that the contractors came within the military’s view
of its chain of command.

Because “[c]ourts should preempt state law only when the
justification for preemption is fairly traceable to the foreign
policy choices not of the federal courts, but rather of the federal
political branches,” Jack Goldsmith, Statutory Foreign Affairs
Preemption, 2000 SUP. CT. REV. 175, 213, and because the
political branches have not made such policy choices evident
here, I respectfully dissent.

30
Because I conclude that we should permit the state-law claims
to go forward at this stage, and because the plaintiffs do not contend
that their Alien Tort Statute claims would provide them with different
relief, see 28 U.S.C. § 1350, I do not address the latter.