Dangerous precedent further blocks efforts to hold private military and security companies accountable for human rights violations
On September 11th, 2009, the U.S. Court of Appeals for the D.C. Circuit in a 2 to 1 ruling dismissed a lawsuit brought against CACI International that alleged CACI personnel participated in torture and abuse at the Abu Ghraib prison.
Judge Silberman, writing the majority opinion for the Court, stated that the plaintiffs’ state law tort claims, filed under the Alien Tort Statute (ATS), were preempted by Federal law (the Federal Tort Claims Act (FTCA)) because of the “uniquely federal interests” in the case. Using a broad interpretation FTCA’s “combat activities” exemption (28 U.S.C. §2680(j)), the Court found that CACI personnel operated under sovereign immunity as they were “performing a common mission with the military under ultimate military command. “ The Court goes on to state that the rationale behind the FTCA’s “combat activities” exception recognizes that tort law is inapplicable to combat situations where “risk-taking is the rule”.
Judge Garland, dissenting, argues that the FTCA does not apply to contractors as the statute expressly states that the statutory meaning of “federal agency” does not include private contractors. Garland also emphasizes that at this stage of litigation, the Court “must accept these allegations as true.” In which case, it can be said that CACI personnel’s actions were not performing as part of the “common mission” with the U.S. military as they “acted unlawfully and without military authorization.”
