Pulling Back the Covers: Saleh v. Titan Corporation and (Near-) Blanket Immunity for Military Contractors in War Zones

Taking a cue from dicta in the Supreme Court’s most recent pronouncement on foreign affairs preemption, I suggest in this paper that courts faced with thorny questions about the liability of military contractors in war zones should be more straightforward in assessing the balance of interests at stake. In applying its tort law, a state has strong, legitimate interests in punishing and deterring wrongdoing by resident corporations and providing compensation to resident victims (whether they be employees of the contractor, U.S. soldiers, or otherwise). By the same token, the federal government has a paramount and exclusive interest in the conduct of war, although in some circumstances it may see state tort law as useful - as an off-the-shelf mechanism for helping regulate contractor misconduct. Finally, in weighing these interests, the culpability of a contractor or its employees should be considered. Applying tort principles to mere negligence by contractors may frustrate the federal interest in prosecuting a successful war (which generally necessitates significant risk-taking). However, the more reckless or deliberate the wrongdoing is, the greater role state tort law has to play; similarly, the more attenuated the federal interest because egregious misconduct may itself violate federal law or policy.