Silence May be Golden, But It is Also Confusing

Back In January I wrote about an article by Air Force Maj. Chad Carter who wrote an article in the fall 2009 issue of Military Law Review that contested legal popular wisdom that the "political question doctrine" means that tort claim cases by military members and U.S. civilians injured in Iraq and Afghanistan must not proceed.

Now another military lawyer has weighed in on the subject. Lt Col. Chris Jenks, of the U.S. Army Judge Advocate General's (JAG) Corps, who is currently assigned as the Chief of the International Law Branch, the Office of the Judge Advocate, writes in an article titled "Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine" in the Berkeley Journal of International Law, that while reliance on contractors is nothing new, the current utilization of contractors is both quantitatively and qualitatively different than in previous military operations. While the sheer number of contractors used by the military on the battlefield is unprecedented the U.S. Government does not know how many contractors it employs in Iraq and Afghanistan nor is it tracking the number of contract employees wounded or killed in Iraq and Afghanistan.

This incongruous combination of necessity and apathy arguably defines, at least in part, the relationship between the United States government and the contractors it employs. It also serves as backdrop for a host of civil lawsuits filed against those contractors stemming from work done at the behest of the U.S. government.

The majority of the lawsuits involve tort claims which on their face do not seem to implicate complicated constitutional issues., in at least seventeen cases brought against military contractors thus far, the defendants have raised just such issues by asserting the political question doctrine as a defense.

The doctrine, which traces back to Marbury v. Madison, "excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the executive branch." Despite the political question doctrine's longevity, over time, the doctrine has been subject to various interpretations and been inconsistently applied, yielding more confusion than clarity. There have even been periods in which commentators questioned whether the doctrine still existed.

Jenks believes that absent changes in the government's attitude toward the litigation and a more rigorous analytical approach by the judiciary, the confusion surrounding the political question doctrine and the inconsistency of its application will only increase.

Although I'm not a lawyer let me attempt a political questions doctrine 101 type definition. The doctrine dates back to 1803 and Chief Justice John Marshall's defining opinion in Marbury v. Madison, which established the doctrine of constitutional judicial review in the United States. Marshall explained that it is "emphatically the province and duty of the judicial department to say what the law is." Marshall said that "questions, in their nature political, or which are by the constitution and laws, submitted to the executive, can never be made in this court." Thus, some government actions are political acts that are not examinable in a court of justice. To what extent and under what circumstances the conduct of military contractors equates to or implicates the government action Marshall spoke of is a central issue in present day litigation.

So far, so good; to paraphrase the Geico commercial, even a caveman can understand.

But things get murky when we look at modern contractors; especially because the government is remaining notably silent when it should be trying to formulate some guidance.

To cite one example Jenks writes:

Variations in the level and type of judicial analysis exist in two related and eventually consolidated cases, Saleh and Ibrahim. These cases typify suits filed by former Iraqi detainees against contract interrogators and interpreters who, in their defense, have turned to the political question doctrine. In both cases, the plaintiffs allege that CACI, a government contractor that provided interrogators, and Titan, a government contractor that provided interpreters, unlawfully tortured the plaintiffs while they were detained in Iraq. The real significance of the cases is not the political question doctrine analysis the courts conducted but that which they failed to do in not considering the relationship of interrogation as a uniquely governmental function to the textual commitment prong of the Baker tests.

The two cases are also emblematic of the enhanced difficulty in applying the political question doctrine to contractors providing wartime related services. Notably, the courts are often called upon to evaluate the federal government's interests, here the military intelligence derived from battlefield interrogations and possible conflicts with those interests, despite receiving minimal input from the government itself. Indeed, minimal input overstates the U.S. Government's role in the interrogator and contractor litigation thus far. As is discussed more fully in Section IV of this Article, although these cases are directly related to the U.S. military's ability to function in Iraq and Afghanistan, the U.S. Government has yet to file a single amicus brief in them.

Ultimately, different levels of the court system dismissed the Saleh and Ibrahim suits. The analysis used by the district court in dismissing the suit against the contract interpreters but not the contract interrogators is striking. The court determined that "treatment of prisoners during wartime undoubtedly implicates uniquely federal interests."

Nonetheless, the court dismissed the suit against the interpreters but not the interrogators even though the nexus to treatment of prisoners is obviously much stronger as concerns the latter.

In terms of the Baker analysis, interpreting may not be a function that immediately suggests an issue committed to the executive branch. However, the litigation thus far has overlooked the fact that interrogation of suspected wartime enemies is an inherently governmental function which is committed to the executive branch and yet contracted out to a non-governmental entity.

Jenks looks at other cases involving such firms as KBR and DynCorp and finds, respectively that the political questions doctrine defense was both invalid and valid.

This begs the question, what does the government say? Not much, it seems. As Jenks notes it is conspicuous for its silence.

Despite the important role contractors play in today's military, in the host of contractor related litigation where the government is not a party and the political question doctrine has been raised, there is not a single reported case of the government intervening or submitting an amicus curiae brief to the court. The closest the government seems to have come was in Lane, discussed above. During the pendency of the appeal in Lane, the Department of Justice (DoJ) filed a motion requesting an extension of time to file amicus curiae brief. Having received the requested extension, the following month the DoJ filed a letter with the Fifth Circuit "advising that an amicus brief will not be filed."

...

So why hasn't the government made its views known in significant battlefield-related tort litigation wherein contractors have asserted the political question doctrine in an attempt to preclude a court from hearing the case? One likely possibility is that by expressing its view on the applicability of the political question doctrine in a given case the executive branch would favor one side of the litigation over the other. This is an outcome which, particularly when U.S. service members are suing contractors, the government may wish to avoid. For other plaintiff categories, the government likely does not want to involve itself in litigation between private contractors. Likewise, it would be problematic for the executive branch to submit a position to the court on the applicability of the doctrine to suits by persons it was responsible for detaining at Abu Ghraib. Moreover, if the executive branch's position were that the doctrine does not apply, then it would increase the chances of successful litigation success against companies with which it has billions of dollars of contracts and upon which its continued operation depends. On the other hand, if the executive branch's position is that the doctrine does apply, the case against the contractor might be dismissed, but, at least as regards the Abu Ghraib plaintiffs, it might also result in the executive branch having to explain to at least two treaty bodies whether the required remedy exists for former detainees who allege torture.

While burying one's head in the sand might work for an ostrich - although that is actually a popular myth - it is not at all feasible for the government. As Jenks concludes:

In not submitting a position to the courts on contractor litigation involving the political question doctrine, the government may avoid initial offense to one party but almost ensures offense to both in the end. Also, somewhat counterintuitively, by remaining silent on the applicability of the political question doctrine, the government likely creates more work for itself, not less. Without the government's input, courts inefficiently grapple with the competing characterizations of how the executive branch is or is not implicated by the questions the case presents. Furthermore, regardless of which way the court rules on the political question doctrine, either or both sides will likely attempt to engage the government by seeking declarations and trying to subpoena testimony and documents from it. In this way, the government will likely become involved, even when it does not submit its views to the court, jeopardizing both the efficiency of the process and control over its involvement. It seems reasonable to conclude that the lack of government involvement has played a role in the inconsistent application of the political question doctrine to wartime contractor litigation and that this, in turn, increases the chances that the Supreme Court will hear an appeal and provide guidance on the doctrine - an outcome the government may also want to avoid. If avoiding Supreme Court intervention is the government's goal, then not appearing in any of the cases and remaining silent on executive's view would not seem to further that goal. Indeed, the chance that the political question doctrine may return to the Supreme Court through a government contractor battlefield related tort case seems increasingly likely.

Note to government. You are the one who created this legal mess by outsourcing battlefield tasks to the private sector in the first place. It is both your legal and moral duty to now step up to the plate and offer some guidance one way or the other regarding the applicability of the political questions doctrine so that both companies and their contractors know exactly what their legal recourse is if something goes wrong.