Judge Garland and Accountability for Abu Ghraib

August 22, 2016

As the Trump Presidential candidacy continues to tank in the polls, Judge Merrick Garland’s Supreme Court nomination may get a second wind. After all, Garland has been praised as a moderate by legislators on both sides of the aisle, and it’s anyone’s guess whether a future nominee under a new administration would be as palatable to the Republican Senators.

Many were disappointed in Garland’s nomination, which adds no diversity to the Court. But Garland’s long tenure as a federal judge does allow for detailed analysis of his careful legal approach. As Chief Justice Roberts himself said, “anytime Judge Garland disagrees, you know you’re in difficult territory.”

For those concerned about human rights, an important case in Judge Garland’s record is his dissent in Saleh v. Titan Corp., 580 F.3d 1 (2009). At issue was the liability of the Titan Corporation, a military contractor, for human rights abuses at the Abu Ghraib prison. While the majority ruled that Titan was shielded from tort liability under the Federal Tort Claims Act, Judge Garland vehemently disagreed. His dissent begins with a powerful statement arguing for a narrow construction of the Act’s immunities:

“The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison. At the current stage of the litigation, we must accept these allegations as true. The plaintiffs do not contend that the United States military authorized or instructed the contractors to engage in such acts. No Executive Branch official has defended this conduct or suggested that it was employed to further any military purpose. To the contrary, both the current and previous Administrations have repeatedly and vociferously condemned the conduct at Abu Ghraib as contrary to the values and interests of the United States. So, too, has the Congress.

No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors—who were neither soldiers nor civilian government employees. Indeed, the only statute to which the defendants point expressly excludes private contractors from the immunity it preserves for the government. Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the Executive’s ability to wage war. To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability.

Under the circumstances of these cases, there is no warrant for displacing the ordinary operation of state law and dismissing the plaintiffs’ complaints solely on preemption grounds.”

In expressing his support for allowing the tort claims to go forward, Judge Garland joined a minority of federal judges nationwide. While his views did not prevail, it is worth noting that Judge Garland argued strongly for corporate accountability for these human rights abuses, and expressed concern that the majority’s view would shield human rights violators both at home and abroad.