Bathrooms, Burn Pits, and Battlefield Torts: The Need for a Particularized, Contextual Approach to the Combatant Activities Exception after Saleh and Al Shimari

BY S. Yasir Latifi

The D.C. Circuit’s 2009 decision in Saleh v. Titan Corp. “dramatically extended” the scope of the Federal Tort Claims Act’s (“FTCA”) combatant activities exception. In 2011, under accusations similar to those found in Saleh, a Fourth Circuit panel in Al Shimari v. CACI International, Inc. followed the D.C. Circuit’s reasoning, holding that the combatant activities exception to the FTCA preempted tort claims arising out of the alleged torturing of Iraqi citizens by private military contractors (“PMCs”) serving as interrogators for the U.S. military. At bottom, both courts reasoned that the FTCA’s combatant activities exception preempted a plaintiff’s claims against a contractor during wartime if “a private service contractor [was] integrated into combatant activities over which the military retain[ed] command authority.”

Of immediate concern is the dearth of guidance that both cases supply for a vast swathe of PMCs who have assisted the military during America’s recent wars—namely, PMCs providing basic support services. Neither the D.C. Circuit nor the Fourth Circuit clarifies if these kinds of basic support services embody “combatant activities.” Nor do the courts address what kind of relationship would need to exist between military commanders and basic support PMCs that would indicate a sufficient level of military “command authority” over the PMCs. A series of recent cases involving the U.S. military’s largest contractor in Afghanistan and Iraq, Kellogg, Brown & Root Services, Inc. (“KBR”), has already brought these ambiguities to the fore.

This Comment argues that courts should analyze a PMC’s basic support services during wartime with a particularized, contextual approach in defining what comprises supporting “combatant activities” under the FTCA that is “both necessary to and in direct connection with actual hostilities.” In PMC-related tort claims during wartime, this approach implores courts to focus on two dimensions, either of which could allow a PMC to qualify for the combatant activities exception: (1) by analyzing how the PMC service itself was used during the time of the claim and its connection to combatant activities; and (2) by analyzing where the specific setting of a particular claim arose on the battlefield and its connection to combatant activities.

DOWNLOAD PDF | 91 N.C. L. Rev.1357 (2013)