In Saleh, Garland was the sole vote in favor of allowing lawsuits to proceed against military contractors for their abuse of detainees at the notorious Abu Ghraib prison.
Plaintiffs, Iraqi nationals who were imprisoned at Abu Ghraib during the Iraq War, brought tort claims against two contractors they claimed abused them during their time in custody. The key question was whether their claims were federally preempted by the Foreign Tort Claims Act. The majority held that they were; relying on the Supreme Court’s decision in Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (extending to military contractors a “discretionary function exception” shield from tort liability ), the court found that imposing liability on the contractors would conflict with the federal policy embodied in the FTCA’s combatant activities exception. The federal policy of removing tort liability from the battlefield, where traditional rationales for tort law are out of place, applied with equal force to military personnel and contractors. Thus, “when a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor’s engagement in such activities shall be preempted.”
Garland dissented. Under his reading of Boyle, preemption of the state law should only occur when a federal contract imposes a directly conflicting duty on a contractor. Here, that condition was not met—the contractors’ alleged acts were unlawful and without military authorization. Garland vigorously disagreed with the majority’s extension ofBoyle from the discretionary function exception the Boyle court recognized to a “combatant activities” exception. He noted that Boyle required discrete conflict between federal and state duties to preempt, yet preemption under a combatant activities exception is “extraordinarily broad.” He was also concerned that the court’s decision would open the door to extending other exceptions to government contractors, such as the exception protecting the government from suit for assault and battery even within the U.S. And Garland pointed out the lack of support for the majority’s view in Supreme Court precedent or the law of other circuits.
Moreover, Garland said, if Congress had intended to extend the protection against battlefield tort liability to government contractors, it knew how to do so. There was no indication that Congress intended to bar state law actions, nor did the executive branch share such a view; where the justification for preemption is not fairly traceable to the foreign policy choices of the political branches, preemption is inappropriate. Finally, Garland rebutted the majority’s concern that military policy would be subjected to 51 state sovereigns—that was not applicable here, as nothing suggested the abuse at Abu Ghraib was part of any military policy.
However, Garland continued, even if Boyle was extended to the combatant activities exception, the scope of the displacement of state law must be carefully tailored to coincide with the bounds of the federal interest being protected. Given that “combatant activities” entails control by the military, Garland would have found that preemption may be warranted when a plaintiff challenges activity authorized or directed by the military; however, that was clearly not the case here.