Could Suits Against the U.S. Government By Iraqis Subject to Abuse In Abu Ghraib Prison Succeed?
By ANTHONY J. SEBOK
Monday, May. 31, 2004
In my previous column, I discussed the possibility of lawsuits by Iraqi nationals who were subjected to abuse in Abu Ghraib prison against the private contractors who were employed there by the
I suggested in that column, that private contractors may indeed be subject to such suits -- for torts ranging from battery and intentional infliction of emotional distress to violations of the law of nations under the Alien Tort Claims Act (ATCA). However, I also noted that they might be immune to suit under the "Government Contractor Defense."
The premise of the previous column was that the private contractors were not acting as agents of the U.S. Government. But what if they were? Then the Iraqis could sue the
Such suits would raise important questions and issues. One reason this is true is that, as I will argue below, if U.S. Government can be sued for the actions of the private contractors it has hired, then it could also be sued for the actions of its own soldiers.
Put another way, the question of whether private contractors can create obligations in tort for the government is really another way of asking: Can the U.S. Government be held responsible for the actions of anyone in its employ in
And that question, in turn, opens up the question of whether the
The Federal Tort Claim Act: The
To fully understand these issues, some initial background is necessary. To begin, it's important to understand that the
In 1946, after the Second World War, the federal government waived its sovereign immunity for a wide range of torts, when Congress enacted the Federal Tort Claims Act (FTCA). Roughly speaking, the FTCA allows the federal government to be sued for injuries resulting from the negligence of its employees, when that negligence occurred in the course of the performance of "ministerial" tasks - that is, those that do not require the exercise of policy discretion.
A classic ex
Why? Because driving a truck in order to deliver mail is deemed "ministerial." It requires constant judgment as to what is safe driving, but it does not require any kind of "policy" judgment by the postal worker. Put another way, driving in a reasonable fashion is obligatory if one drives a truck to deliver mail; one has to do it in order to do one's job.
On the other hand, when a federal employee has to engage in a discretionary judgment involving policy, the government cannot be sued if the employee makes that judgment poorly.
A Crucial FTCA Question: "Agent" Versus "Independent Contractor"
Besides the "ministerial"/policy judgment distinction, there is also another important distinction in FTCA interpretation: The distinction is that between an "agent" and an "independent contractor."
The distinction is crucial because the FTCA clearly states that the government does not waive immunity for suit for torts committed by independent contractors it has hired. The question of who is an independent contractor, however, is not easy to answer.
In the 1973 case of Logue v. U.S., the U.S. Supreme Court provided a partial answer. It held there that the
The Supreme Court made the "agent"/"independent contractor" distinction somewhat clearer in a later, 1976 case, U.S. v. Orleans. In
In many cases involving medical malpractice, for ex
Would the Abu Ghraib Guards Be Deemed Agents or Independent Contractors?
Nevertheless, the actions of guards and interrogators - such as those who worked at Abu Ghraib prison -- are very different from those of doctors.
For one thing, if civilians were indeed employed to perform tasks involving national security, it seems hard to believe that they were not in theory -- even if not in practice -- under the direct control of either military or civilian
For another thing, if prisoners argue that the contractors were "agents" of the
Why? Because, as noted in my previous column, if the contractors want to claim immunity from suit in their private capacity under the Government Contractor defense, then by definition they are claiming that the government closely controlled their actions.
Either the government loses this argument, or the private contractors do - and the plaintiffs win either way.
At some point, a court would have to make choice about who to believe. If the court believes the contractors raising the Government Contractor defense and grants immunity, then it will not be able to credit the government's contract claim that the contractors were, instead, independent. And without the independent contractor argument, the U.S. Government will be stuck with FTCA liability.
If the Contractors Are Deemed Agents, Can the Government Still Be Immune?
Let's assume, for the moment, that the government can sued for the actions of the contractors - because the contractors are deemed government contractors, not independent contractors.
In that scenario, a new question would arise: Does the FTCA provide complete immunity to the government for the actions of all of its agents, in and outside of its employ?
There are two possible bases for a claim that such an immunity exists.
The First Basis for Immunity: No Investigative/Law Enforcement Functions
First, the FTCA specifically says that the government waives immunity only for torts arising from negligence, and not for intentional torts. Subsequently, the FTCA had been
So the government could claim immunity if it could prove that the acts at Abu Ghraib were intentional torts that were not committed by the government's "investigative or law enforcement officers. That leads to another crucial question: Were the abusers engaged in "investigative or law enforcement" acts (or tortuous omissions)?
The decision in the 1984 case of DeLong v. U.S., before the U.S. District Court in
Whether DeLong was correct or not, it would seem to me that the abuse at the Abu Ghraib prison was performed by men and women who were, indeed, charged with the power to investigate enemy activites. (Whether they were also charged with the "enforcement" of law seems irrelevant; the
After all, the best that can be said for what was supposed to have occurred at the Abu Ghraib prison is that interrogation and penal tasks were supposed to have been performed by agents of the U.S. Government. If these agents committed intentional torts in the course of performing their duties - as the photographic evidence seems to establish that they did -- then the FTCA does not give the government an escape hatch.
The Second Basis for Immunity: The "Foreign Country" Exception
The last defense our government might raise in the face of an FTCA suit is quite obscure but potentially devastating to the Iraqi plaintiffs' claims.
The FTCA contains a "foreign country exception": the
This exception was applied by the D.C. Circuit in the 2003 case of Macharia v. U.S., a case involving a class action by Kenyan victims and relatives of the embassy bombing in
It is hard to know what a future court would make of the foreign country exception if its was raised by the U.S. to secure immunity under the FTCA based on the unusual situation in Iraq - a proclaimed war of liberation, that led to an occupation claimed to be temporary.
As David Scheffer noted in a very prescient article published in the American Journal of International Law in 2003, it's important to remember that the foreign country exception in the FTCA does not bar suits for injuries which occur outside the
This makes sense, in that if the plaintiff wants to bring the suit, they should bring it in their local court, which will then apply local rules of sovereign immunity. The Kenyan plaintiffs, for instance, could seek Kenyan relief.
Still, perhaps if any Iraqi tries to sue for what happened in the prison in 2003 and 2004, a federal judge will tell him to sue in
But I think that it would be unseemly for the
The reality is that the