Private Warriors and Political Questions: A Critical Analysis of the Political Question Doctrine’s Application to Suits Against Private Military Contractors
Volume 82, No. 2, Summer 2009
By Aaron J. Fickes

The political question doctrine is a common law doctrine that can be traced to the founding era, but its modern form was explicated in the landmark 1962 case of Baker v. Carr. According to the Baker Court, suits are nonjusticiable under the doctrine only if they are “inextricable” from one of six factors, which are encapsulated by:             (1) concerns for the separation of powers, (2) the presence of applicable judicial standards, and (3) prudential concerns. During the Baker era, the doctrine was limited to suits against government actors and entities, especially the U.S. government. Beginning in the 1990s, however, federal district courts have extended the doctrine to private military contractors (“PMCs”).

Paralleling the expansion of the political question doctrine to private party defendants, the military has become increasingly reliant on PMCs to further strategic objectives. Now, more than ever, civilians are active in the theater of war. A recent Department of Defense census, for example, estimates that there are 180,000 contractors operating in Iraq alone, fulfilling numerous roles, ranging from logistical support to armed escort services for diplomats. Incidents resulting in the injury or death of U.S. service members, PMC employees, and Afghan and Iraqi civilians at the hands of contractors have become more common. As a result, suits against PMCs are now a fixture on the judicial landscape.

These suits provide significant challenges for the judiciary and its political question jurisprudence. Absent legislative guidance, courts have been forced to address the justiciability of diverse claims, ranging from negligence to torture, arising from PMC activity under a judge-made doctrine predating contemporary battlefield conditions. The outcome has been disparate and confusing, frequently resulting in victims being deprived of their day in court.

This Comment suggests that the factors supporting the political question doctrine are rarely present in tort suits for damages against private parties. As such, its application in the PMC context is generally improper. Part II of this Comment offers an overview of the development of the political question doctrine and its application to damages and injunction suits involving the government and private parties. With a careful analysis of supporting law, it becomes clear in Part II.C.2 that common law tort suits for damages against the government are less susceptible to political question doctrine challenges than constitutional claims seeking equitable relief, and are therefore more frequently subject to thorough judicial review. This judicial treatment was extended, in part, to suits involving PMCs prior to and during the occupations of Afghanistan and Iraq, as analyzed in Part II.E. However, Part II.E also demonstrates that suits against PMCs are not immune from application of the political question doctrine.

Part III applies the logic supporting the Baker factors to suits for damages against PMC defendants. Part III.A explains that suits for damages against private parties mitigate concerns about violating the separation of powers. Part III.B maintains that tort suits weigh in favor of justiciability and that common law tort standards provide the flexibility necessary for the judiciary to adjudicate suits arising in a war zone. Part III.C asserts that prudential concerns are not a legitimate obstacle to suits against PMCs as damages against private parties are less intrusive than injunctive relief.