What Tort Claims, If Any, Can Be Brought

What tort claims, if any, could be brought against those who were involved in the torture at Abu Ghraib prison? And what role can tort liability play in helping those inmates who were tortured pursue compensation?

In this column, I will consider these issues as they pertain to private contractors. (Joanne Mariner has earlier written, in a column for this site, about the challenges involved in the pursuit of criminal charges against such contractors.) In my next column, I will look at the same issues with respect to claims that might be brought against the United States Government.

We do not know with any detail what role private companies have been playing in the area of security and prison management in Iraq. The media has been filled with references to various private security firms that have provided bodyguards and other forms of physical protection to high-ranking members of the coalition, Iraqis, and various fixed assets, such as oil fields.

From what can be gleaned from the media, the current phase of operations in Iraq--which may or may not be a war anymore--involve an unprecedented number of private individuals who are not technically members of the armed forces or employees of the government. But specifics, thus far, are lacking.

What is certain, however, is that this new development in how America is pursuing its goals in Iraq, reflects the growth of privatization in parts of American life that were once seen as uniquely the task of the government.

For example, within the United States, there has been an unprecedented increase in the number of private firms who manage prisons for state and local governments. Privatization of prisons on the domestic front has produced cases that foreshadow the issue now raised by the abuse in Iraq: What recourse do victims of violence have when the perpetrator is not the government, but a private citizen working for the government?

To begin, I assume that it is useless to suggest that the private contractors could be sued in Iraq. I have no idea what the state of Iraqi tort law was under the Hussein regime or before, but it seems clear that there is no working court system in Iraq now (except for the tribal systems described in Joanne Mariner's prior column).

In addition, it seems unlikely that there will be a tort system in place in Iraq in the near future that could provide any real satisfaction for Iraqis against American companies who worked with the American Army.

But suppose jurisdiction could be secured over the private contractors in the United States -- for example, in the states in which they are incorporated. (This prospect is realistic; foreigners living outside the U.S. may nonetheless bring suit in U.S. courts, and most states' personal jurisdiction doctrine holds that a corporation can be sued where it is incorporated, or where it has its primary place of business.)

In that case, the corporations could be sued for the usual array of intentional torts that are associated with brutal, illegal treatment by rogue cops, and by others who use torture, such as criminals. Battery, assault, false imprisonment, and intentional infliction of emotional distress are the first torts that come to mind.

In fact, since the Iraqis are aliens who were assaulted outside the United States, they could also sue the American private contractors under the Alien Tort Claims Act. Why? Because, if the newspaper reports are accurate, the acts at issue were acts of torture. Torture violates the law of nations. And it is one of the violations of the law of nations for which a private citizen can be held liable under the ATCA.

To establish liability in an ATCA suit, the victims would have to show not only that they were subject to torture by the contractors, but also that the contractors acted under "color of state law." This shouldn't be difficult: The private contractors seem to have been acting in close coordination with the U.S. government at the prison.

For this very reason, however, the contractors may argue that they should be immune from an ATCA suit. They may argue that t if the victims of the torture believe that they have a case, they should bring it against -- and only against -- the United States Government, proceeding under the Federal Tort Claims Act (FTCA).

As I will explain in my next column, however, there are a number of (possibly insuperable) difficulties in bringing a suit against the government under the FTCA. Moreover, and more to the point, for present purposes, there is no reason that the chance of an FTCA suit should destroy a possible ATCA suit against the private contractors. Both suits can proceed in tandem -- or in consolidated fashion.

Even if the ATCA suit can proceed, the defendants may try to shift exclusive blame to the government in another way -- by attempting to raise what is called the government contractor defense.

This defense comes from product liability law. In its 1988 decision in Boyle v. United Technologies Corp., the Supreme Court held that if a manufacturer made a product in compliance with the government's design and production requirements, but it was defective and caused injury, the victim could not sue the manufacturer. For instance, if a defense contractor makes a vehicles to comply with government specifications, and it kills or injures civilians or members of the military, the victims cannot sue.

Does the government contractor defense exist in a non-products liability case? The question is still open.

In 2000, in Malesko v. Correctional Servs. Corp., the U.S. Court of Appeals for the Second Circuit gave some guidance on this question. Malesko, after being convicted of fraud, served part of his sentence in a sixth-floor room a halfway house operated by a private corporation. The contractor refused to let him use the elevator, despite Malesko's letting them know he had a heart condition. Malesko had a heart attack, and sued under the authority of the Supreme Court case of Bivens v. Six Unknown Federal Narcotics Agents, alleging that CSC had violated his constitutional rights.

The Second Circuit held that Malesko's suit could go forward. It did so because it believed a Bivens suit could be brought against a private contractor, and because, in its view, the government contractor defense did not apply.

Why didn't the defense apply? Because, the court reasoned, this was not a case where the government "exercised its discretion and judgment in approving precise specifications to which the contractor must adhere." Unlike when the Pentagon gives specs to a weapons systems manufacturer, the court reasoned, the Bureau of Prisons did not exercise precise control over the CSC facility and its elevator use policy.

Based on the Second Circuit's reasoning, even if the contractors in Iraq could invoke the government contractor defense, they could only do so if they could show that they were acting on very specific, mandatory, nondiscretionary government instructions when they tortured the prisoners. And given the nature of torture, that seems quite unlikely.

The Supreme Court ultimately reversed the Second Circuit's Bivens holding. But what matters for our purposes is that in doing so, it implicitly endorsed the Second Circuit's narrow reading of the government contractor defense. Indeed, Justice Rehnquist based his argument on the claim that a Bivens action wasn't necessary precisely because CSC was not immune under the government contractor defense.

Meanwhile, it remains an open question whether the government contractor defense even applies in an ATCA suit. So if the victims of torture in Iraq want to make "a federal case" out of their torture by suing the private contractors responsible, they may not only find justice in U.S. courts, they may also find themselves helping to clarify an important area of tort law.

But what if the courts find that the private contractors are indeed immune -- under the government contractor defense, or otherwise? Then the victims of torture in Abu Ghraib prison would have no choice but to sue the United States Government. In my next column, I will explain why they would be very unlikely to prevail