Could Suits Against the U.S. Government By Iraqis Subject to Abuse In Abu Ghraib Prison Succeed?

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 U.S. government.

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 U.S. government for the torts suffered.

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 Iraq?

And that question, in turn, opens up the question of whether the U.S. government might also be held legally responsible for the actions of those it employs - or those who otherwise act as its agents - in other countries, in other situations.

The Federal Tort Claim Act: The U.S. Government's Partial Waiver of Immunity

To fully understand these issues, some initial background is necessary. To begin, it's important to understand that the U.S. government can be sued in tort only if it has waived its sovereign immunity. (Sovereign immunity is an ancient doctrine based on the concept that "the king can do not wrong." While the People -not the King - are sovereign in America, the concept of sovereign immunity was imported here from England nonetheless.)

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 example of a tort claim permitted under the FTCA would be this one: A truck driven by a U.S. Postal Service mail carrier collides with a private citizen's car. The private citizen can sue the government for damages.

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.

For example, suppose the Food and Drug Administration has to decide whether to approve a drug as "safe and effective," and suppose it makes a choice that is not only wrong, but careless. In that instance, the U.S. Government would not be held liable for the resulting injuries, even if they were quite significant. (This explains, of course, why problematic drug like fen-phen lead to suits against the manufacturer - not the government.)

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 U.S. could not be sued for the negligent death of a federal prisoner who had been, at that time, confined in a county jail. Why? Because the federal government had hired the State of Texas to hold some of its prisoners - and, the Supreme Court therefore reasoned that the employees of the county jail were employees of the State of Texas, not the U.S. government. (Or, put another way, they were "independent contractors.")

The Supreme Court made the "agent"/"independent contractor" distinction somewhat clearer in a later, 1976 case, U.S. v. Orleans. In Orleans, the Court held that a party under contract with the government becomes an "agency" of the U.S. - and thus its employees become agents of the U.S. within the meaning of the FTCA if "its day-to-day operations are supervised by the Federal government." But it also stressed that the distinction between an "agent" of the federal government and an "independent contractor" is functional, not formalistic

Since Orleans, the federal courts have been quite wary about holding that a private contractor is, in fact, an agents of the U.S. - able to therefore trigger liability on the part of the U.S. government, according to the FTCA.

In many cases involving medical malpractice, for example, the courts have held that the U.S. cannot be sued for the malpractice of physicians who were employed as independent contractors.

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 U.S. government officials.

For another thing, if prisoners argue that the contractors were "agents" of the U.S. government, the contractors themselves may end up agreeing!

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 amended to allow suits against the U.S. Government for only those intentional torts committed by "investigative or law enforcement officers of the U.S. Government." (This amendment was passed specifically to insure that the government could be held responsible for abuses by federal agents in the course of arrest or detention.)

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 Alaska, provides some guidance. There, the court held that two civilians who were shot by Marine guards without cause could not sue the government because sentries are not supposed to "investigate" crimes or "enforce" the law.

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 amended statute used the word "or" not "and").

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 amendment to the FTCA should be given its intended effect: To allow lawsuits to prevent intentional abuse during detentions by federal agents. Such abuses are exactly the kind that are alleged - and that have already been documented -- here. Therefore, Iraqi abuse victims' suits should go forward. If the U.S. Government then wants to argue that battery and abuse is within the "policy-making" powers of its agents, it should make that argument in open court.

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 U.S. has not waived its immunity for any tort committed by its agents outside the U.S.

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 Nairobi. The plaintiffs claimed that the U.S. was negligent in its supervision of guards, and the court held that the FTCA barred the suit, in part because the alleged negligence took place in Kenya.

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 U.S. Instead, it bars suits for injuries which occur in another sovereign territory.

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.

But Iraq is different. There was no sovereign in Iraq when the alleged abuse at the Abu Ghraib prison occurred. There was only a military occupier.

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 Iraq -- assuming that in the near future there will be courts that can hear the claim.

But I think that it would be unseemly for the U.S. to hide behind the foreign country exception to avoid facing its obligations in tort under the FTCA. It would be the ultimate "lawyer's trick"--the sort of trick which buys victory in the courtroom, at the cost of one's honor.

The reality is that the U.S. was, at the relevant time, sovereign in Iraq - and, at the relevant time, relief in truly Iraqi courts was unavailing. In light of the reality, the "foreign country exception" should not apply.