Contractor Civil Liability Pub 759 Jasmine Miller Marc Numedahl

1. Contractor Civil LiabilityPub 759Jasmine MillerMarc Numedahl

2. Agenda • Statement of the Issue • History and Context • Analysis of the Legal Framework Involved • Our Proposal • Summary

3. Issue Statement • Should Private Military Contractors (PMCs) be protected against tort liability under the Government Contractor Defense (GCD)?

4. Private Military Contractors • Exponential increase in the use of private military contractors (PMCs) by the federal government since the events of 9/11 • PMCs are fulfilling roles that have been traditionally associated with US soldiers • Increase of PMCs in Iraq and Afghanistan positively corresponds to the increase of lawsuits against PMCs for various issues, specifically international law violations

5. What is the GCD? • The Government Contractor Defense is a judicially created affirmative defense that draws on long-standing ideas about sovereign immunity. • The GCD protects PMCs from liabilities on the basis that they are providing services or products based on the specifications of a government contract. • PMCs argue they stand in the shoes of the federal government; thus, they enjoy whatever immunities would otherwise apply.

6. Superior Orders Defense • Superior Orders Defense claimsthat during the course of war, a party should not be liable because a higher governmental authority instructed that party to carry out an action in violation of international law. • Discredited in the context of international law.

7. The Evolution of GCD GCD GCD Protects Private Manufacturers Protects PMCs Defective Products Negligent Private Military Contractors Expanded Scope

8. The Past GCDProduct Liability Yearsley v. W.A. Ross Construction Company (1940) • Ross Construction received a government contract to build several dikes on the Missouri River. In the process of performing this contract, a portion of Petitioner's land was allegedly washed away at the hands of Ross, prompting swift legal action for damages. The Conclusion: The Court denied Petitioner's claim, reasoning that "the action of the agent is the act of the government."

9. The Modern-Day GCDProduct Liability Boyle v. United Technologies (1988) • Following the death of a US Marine helicopter pilot, David Boyle, his estate sued the helicopter manufacturer, Sikorsky, for defectively designing its copilot emergency escape hatch. The Court of Appeals found that Sikorsky could not be held liable under VA Tort Law for any design flaws since it met the requirements issued by the government. • Boyle appealed and the Supreme Court granted certiorari.

10. Boyle v. United TechnologiesCont… The Issue: • Are state tort laws, holding independent military contractors liable for injuries caused by their design flaws, valid? The Conclusion: No • Boyle’s 3 prong test • US approved precise specifications for equipment • Equipment conformed to those specifications • Supplier warned the US against dangers related to the equipment that had not been known by the government

11. The Future GCDTort Liability Saleh v. Titan Corp (2009) • More than 250 Iraqi nationals along with the CCR brought separate suits against Titan and CACI, who provided interrogation and interpretation services to the US military at Abu Ghraib military prison during the war in Iraq. Plaintiffs claimed to be abused and tortured by employees of both of the contractors (along with Iraqi police). • Cases against Titan and CACI were consolidated for purposes of discovery.

12. Saleh v. Titan CorpCont… The issue • Should state tort claims against PMCs, who perform combatant duties under the direction of the government (during wartime) be federally preempted? • Was Titan and CACI in violation of state, federal, and international laws under the Alien Tort Statute? The Conclusion: Yes, No • During wartime, when a private contractor is integrated into combatant activities with the military retaining sole command, tort claims are preempted. • There was no consensus that private acts of torture violates the Law of Nations.

13. Proposal • If the USG decides to use PMCs in Iraq and Afghanistan, the GCD should not apply when human rights violations occur. PMCs should be held to the same standards of conduct and penalties as the U.S. armed forces (UCMJ). • For the remainder of the presentation we will deal specifically with the issue of GCD defense of torture.

14. Building Blocks • Alien Torts Statute • Federal Torts Claim Act • Boyles 3-pronged test for Services • GCD Expansion to Services (Inconsistencies) Deconstructing the Supporting Arguments for the GCD

15. Alien Tort Statute • The ATS provides access to the federal court for Claims based on torts committed outside the U.S • ATS Confers subject matter jurisdiction when the following conditions are met • 1) an alien sues • 2) for a tort • 3) that was committed in violation of the “law of nations” or a treaty of the U.S.

16. Alien Tort Statute • Filartiga v. Pena-Irala (2D Cir. 1980) • Established that torture falls within those “clear and unambiguous violations of international law.” • “for purposes of civil liability, the torturer has become like the pirate and slave trader before him, an enemy of all mankind” (630 F.2d at 890).

17. Alien Tort Statute • Since the cause of action is derived from customary international law, so too are the limits of that cause. • Customary international law “does not reach private, non-state conduct” even when that conduct includes torture, execution and rape (Tel Oren v. Libyan Arab Republic, 726 F.2d at 245).

18. Federal Tort Claims Act (FTCA) • The USG maintains the right to determine when it will or will not consent to be sued. • FTCA grants a limited waiver of its sovereign immunity (U.S. v. Mitchell, 100 S.Ct 1349 1980). • Justifications for the GCD arise from two limitations: • Discretionary Function • Claims arising out of the combatant activities of the military or naval forces, Coast Guard, during time of war.

19. Applying Boyle’s 3-pronged test to Services Contracts • USG Approves reasonable Specifications: • Most significant hurdle b/c the contracts require contractors to abide by all relevant laws, including the Geneva Conventions. • Equipment adheres to Specifications: • Lack of oversight makes it hard to know if specifications are being adhered to. • Notify the USG of dangers involved. • Contractors often have there own chain of command, not reporting to the military commanders the situations on the ground.

20. GCD Expansion to Services • Homeland Security Act of 2002 and the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act). • Koohi v. United States • Bentzlin v. Hughes Aircraft • Fisher v. Halliburton

21. Deconstructing the Supporting Arguments for the GCD • Federalism and Preemption • The first justification for the GCD is that the Supremacy Clause prevents the states from regulating activities of the federal government. • Foreign Affairs doctrine prevents states from acting contrary to Constitutional powers entrusted to Congress and the President. • While these are great points, violations of human rights laws are a unique situation. • Rejected Superior Orders Defense: every individual and corp. has a responsibility of understanding the few things absolutely forbidden under international law.

22. Continued • Separation of Powers • The second justification for the GCD is the “Political Question” where cases are committed for resolution to the halls of Congress of the confines of the Executive Branch. • These decisions revolve around policy choices and value determinations – should be resolved by democratically elected officials representing those values. • Recent cases have not allowed Political Question to stand on its own merits

23. Continued • Sovereign Immunity (FTCA) • The third primary justification for the GCD is the problem of costs of litigation being passed on in a way that violates sovereign immunity. • Pass Through Rationale • How to you place a price on human rights violations?

24. Timeline of the GCD

25. Conclusion • The GCD should not be expanded to allow for intentional human rights violations because: • The contracts require contractors to abide by all relevant laws, including the Geneva Conventions • The aims of the GCD are not served by immunizing government contractors who engage in unlawful acts. • Subsequent to Boyle, the 9th Circuit Court of Appeals has basically limited GCD to the area of design defects. • Agent Orange Litigation, 373 F. Supp. 2d 7, 85-86