The Political Question Doctrine and Civil Liability for Contracting Companies on the "Battlefield"

I. INTRODUCTION

"The question whether contractors may be sued, in any court, for war casualties while the military services may not . . . could determine whether the President, as Commander-in-Chief will be able to deploy the Total Force decades into the future."1

While the use of civilian contractors to support military operations is not a new phenomenon in American history, their use in the War on Terror2 has been unprecedented. Whether one looks at the actual numbers of civilian contractors in active combat zones overseas, which exceeds well over 100,000 in Iraq alone,3 or in the specific activities performed by civilian contractors, for example, the use of civilian contractors as armed security forces, the legal and policy ramifications are significant.4

Out of a myriad of concerns in this evolving arena5-ranging from criminal jurisdiction, to training, to labor and employment law-this Article focuses on providing an overview of the "political question" doctrine's development in recent case law associated with civil complaints brought in American courts against contracting companies operating in battlefield environments such as Iraq and Afghanistan, a matter addressed by the author at the Review of Litigation's Symposium-Terror on Trial: Civil Litigation in the War on Terror.6 The political question doctrine, which excludes from judicial review all controversies involving policy choices and other value determinations that the Constitution reserves to the Congress and the Executive for resolution, represents a formidable jurisdictional shield and will no doubt continue to be a source of jurisprudence and debate in the future.