SUHAIL NAJIM ABDULLAH AL SHIMARI
TAHA YASEEN ARRAQ RASHID
SALAH HASAN NUSAIF AL-EJAILI
ASA’AD HAMZA HANFOOSH AL-ZUBA’E
SA’AD HAMZA HANTOOSH AL-ZUBA’E
v.
CACI PREMIER TECHNOLOGY, INC.,
TIMOTHY DUGAN; CACI INTERNATIONAL, INC.
L-3 SERVICES, INC.
US Court of Appeals for the 4th Circuit, Keenan, Oct. 21, 2016,
Political Question Doctrine – Immunity – Conduct by private employees that was unlawful when committed may be justiciable even if conducted under military control.

Concur – Floyd – Unjusticiable “grey area” should be in areas truly unsettled, not merely unrefined

While formal evaluation suggested that the case was not justiciable, the Court remanded for consideration of practical matters regarding control, etc

Political Question “Baker Factors”:
(1) a textually demonstrable constitutional commitment of the issue to a coordinate political
department,
(2) a lack of judicially discoverable and manageable standards for resolving the issue,
(3) the impossibility of deciding the issue without an initial policy determination of a
kind clearly for nonjudicial discretion,
(4) the impossibility of a court’s undertaking independent resolution of the issue
without expressing lack of the respect due coordinate branches
of government,
(5) an unusual need for unquestioning adherence to a political decision already made, or
(6) the potentiality of embarrassment from multifarious pronouncements by various
departments on one question.

4th Circuit “Taylor Factors”:
1) “whether the government contractor was under the ‘plenary’ or ‘direct’ control of the military” 2) we asked whether “national defense interests were ‘closely intertwined’ with military decisions governing the contractor’s conduct, such that a decision on the merits of the claim ‘would require the judiciary to question actual, sensitive judgments made by the military.

If either is “yes,” then political question doctrine is triggered

The Court here limits the 1st Taylor factor to: acts committed under actual control of the military that were not unlawful

The Court here limits the 2nd Taylor factor to: lawful conduct

Where there is no clear law setting out whether conduct was lawful at the time, it “will not be subject to judicial review.”

Judicially discoverable and manageable standards for resolving the issue exist where statutory terms and established international norms exist.