I was reading an opinion from the D.C. Circuit today, Saleh v. Titan et al., No. 08-7009 (D.C. Cir. Sep. 11, 2009), in a case litigated by a team that included CAAFlog commenter John O’Connor, see Bloomberg coverage here. The opinion rules in favor of the defendants and dismisses civil claims against Titan and CACI arising from the infamous Abu Ghraib incident on preemption grounds. In Saleh, the D.C. Circuit stated that activities of contractors during wartime, “where a private service contractor is integrated into combatant activities over which the military retains command authority,” are not subject to state tort law and are preempted by the combatant activities exception to the FTCA. Aside from the very interesting issues under the alien tort statute and combatant activities exception to the FTCA, which are not germane to this blog, I noticed an interesting use of military law in the case that came up along the way to this ruling.
The D.C. Circuit cites to United States v. Calley, 22 U.S.C.M.A. 534, 544 (1973), for an infrequently cited proposition:
The district court’s test as applied to CACI and Titan, moreover, creates a powerful (and perverse) economic incentive for contractors, who would obviously be deterred from reporting abuse to military authorities if such reporting alone is taken to be evidence of retained operational control. That would be quite anomalous since even uniformed military personnel are obliged to refuse manifestly unlawful orders [see Calley]
Saleh, slip op. at 16 (emphasis added). To be honest I don’t exactly get the D.C. Circuit’s logic, but it raised the question of how often do civilian courts cite military justice for propositions that aren’t frequently dealt with in military courts? When was the last time you saw the issue of whether a servicemember had a duty to follow an unlawful order actually come up in a military case? Yet, the D.C. Circuit cites the proposition (though from a 1973 case) with such ease and lack of doubt or complexity. For those keeping score, the last time I recall it came up at CAAF was U.S. v. Kisala, 64 M.J. 50 (C.A.A.F. 2006), involving the anthrax program. A look at the footnotes in Kisala tells me the issue comes up to CAAF maybe once or twice a decade. And what exactly is a “manifestly unlawful order” in the context of the Abu Ghraib incidents? While that statement will bring lots of comments, I just don’t know how in that context the proposition was so easy peasy lemon squeezy.