Full opinion text
OPINION PETER J. MESSITTE, District Judge. Plaintiffs, 72 Iraqi citizens who were formerly detained at military prisons in Iraq, have sued L-3 Services, Inc. (“L-3”), a military contractor which provided civilian translators for United States military forces in Iraq, and Adel Nakhla, a former employee of L-3 who served as one of its translators there. The Complaint alleges that Defendants tortured and otherwise physically and mentally abused Plaintiffs during their detention and that they should be held liable in damages for their actions. Plaintiffs assert 20 causes of action: 1) torture; 2) civil conspiracy to torture; 3) aiding and abetting torture; 4) cruel, inhuman, or degrading treatment; 5) civil conspiracy to treat Plaintiffs in a cruel, inhuman, or degrading manner; 6) aiding and abetting cruel, inhuman, and degrading treatment; 7) war crimes; 8) civil conspiracy to commit war crimes; 9) aiding and abetting the commission of war crimes; 10) assault and battery; 11) civil conspiracy to assault and batter; 12) aiding and abetting assaults and batteries; 13) sexual assault and battery; 14) civil conspiracy to sexually assault and batter; 15) aiding and abetting sexual assaults and batteries; 16) intentional infliction of emotional distress; 17) civil conspiracy to inflict emotional distress; 18) aiding and abetting intentional infliction of emotional distress; 19) negligent hiring and supervision; and 20) negligent infliction of emotional distress. Counts 1-9 are brought pursuant to the Alien Tort Statute, 28 U.S.C. § 1350. Counts 10-20 are state law claims. Counts 19 and 20, the negligence claims, are brought only against Defendant L-3. Defendants have filed Motions to Dismiss on a number of grounds. They argue that the suit must be dismissed in its entirety because they are immune under the laws of war, because the suit raises non-justiciable political questions, and because they possess derivative sovereign immunity. They seek dismissal of the state law claims on the basis of government contractor immunity, premised on the notion that Plaintiffs cannot proceed on state law claims which arise out of combatant activities of the military. Defendants also aver that the causes of action brought under the Alien Tort Statute are not cognizable since none of their actions violated the law of nations, as the statute requires. They further contend that the state law claims are governed by the substantive law of Iraq which makes them immune from suit or, if not immune, that at least some of the claims are not cognizable under Iraqi law. Finally, Defendants assert that Plaintiffs have failed to plead sufficient facts in support of their claims of conspiracy and aiding and abetting. The Court has considered the parties’ initial briefs, heard oral arguments, and reviewed their supplemental briefs and filings. For the reasons that follow, the Court DENIES Defendants’ Motions to Dismiss. On the facts alleged, Defendants’ actions arguably violated the laws of war such that they are not immune from suit under the laws of war. Further, the suit does not raise a political question since this is a suit against private actors which does not implicate the separation of powers issues which the political question doctrine is meant to protect. Additionally, the Court is not inclined, at this stage of the proceedings, to find that Defendants are shielded by derivative sovereign immunity, since the Court is unable to determine from the Complaint alone that Defendants were acting within the scope of their contracts with the United States as that defense requires. The Court further rejects the government contractor immunity defense since Defendants’ asserted premise for the defense— that the claims arise out of combatant activities of the military — is not a valid basis for the defense. The Court declines to dismiss the Alien Tort Statute claims since, in the Court’s judgment, Plaintiffs’ claims constitute recognized violations of the law of nations, appropriately assertable against Defendants. As for Plaintiffs’ state law claims, the Court finds that they are governed by Iraqi law. However, without referring to information outside the four corners of the Complaint, in particular Defendants’ contracts, the Court is unable to determine at this time whether Defendants are in fact immune under Iraqi law. Accordingly, as to this latter argument, as well as to the question of whether Plaintiffs’ claims are cognizable under Iraqi law, the Court defers decision pending discovery. Finally, the Court finds that Plaintiffs have set forth sufficient facts to make out claims of conspiracy and aiding and abetting. I. Statement of Facts In March 2003, a military coalition led by the United States invaded Iraq and toppled the regime of its then-leader Saddam Hussein. Coalition forces have remained in Iraq as an occupying force ever since, engaged in the process of rebuilding the country to the end of returning governing power to the Iraqis. Throughout the occupation, coalition forces have fought with and been subject to attack by insurgents employing guerilla-style tactics. During the occupation, the U.S. military contracted with L-3, a Delaware corporation headquartered in Virginia, to provide civilian translators of Arabic in connection with military operations. These translators worked at, among other places, military prisons and detention facilities in Iraq. Adel Nakhla, a naturalized U.S. citizen born in Egypt, worked for L-3 as an Arabic translator from June 2003 through May 2004 at the Abu Ghraib prison located outside of Baghdad, which was used by the U.S. military to detain suspected subversives taken into custody. Nakhla is no longer employed by L-3 and currently resides in Montgomery County, Maryland. According to their Complaint, Plaintiffs are 72 Iraqis who were arrested by coalition forces and held at various military-run detention facilities in Iraq, including Abu Ghraib prison. Their periods of detention occurred between July 2003 and May 2008 and varied in length from less than a month to more than four years. All Plaintiffs allege that they were innocent of any crimes and that they were eventually released from custody without being charged with any crimes. They all allege, however, that during their custody they were tortured and otherwise mistreated by L-3 employees, including Nakhla, and others working with them. The abuses they allege include: beatings, hanging by the hands and feet, electrical shocks, mock executions, dragging across rough ground, threats of death and rape, sleep deprivation, abuse of the genitals, forced nudity, dousing with cold water, stress positions, sexual assault, confinement in small spaces, and sensory deprivation. Plaintiffs also allege that their individual mistreatment occurred as part of a larger conspiracy involving L-3 and its employees, certain members of the military, and other private contractors. Despite the alleged involvement of some military personnel in these acts, Plaintiffs claim that Defendants were not authorized by the U.S. Government to commit the wrongful acts and that they were acting independently of and contrary to orders and directives of the U.S. military. II. Legal Standards for Dismissal Defendants’ Motions to Dismiss are brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), a party may seek dismissal for “lack of subject-matter jurisdiction.” “The plaintiff has the burden of proving that subject matter jurisdiction exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). “When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. (citation and quotation marks omitted). “The district court should grant the Rule 12(b)(1) motion to dismiss only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (citation and quotation marks omitted). • Rule 12(b)(6) governs dismissal of a complaint for “failure to state a claim upon which relief can be granted.” “[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006) (citation and quotation marks omitted). “[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.2009). The court will also “draw[] all reasonable factual inferences from those facts in the plaintiffs favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). But “legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts.” Nemet Chevrolet, 591 F.3d at 255. “[A] complaint must contain ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Id. (quoting Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (quotation marks omitted). “Facial plausibility is established once the factual content of a complaint ‘allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Iqbal, 129 S.Ct. at 1949). “[T]he complaint’s factual allegations must produce an inference of liability strong enough to nudge the plaintiffs claims ‘across the line from conceivable to plausible.’ ” Id. (quoting Iqbal, 129 S.Ct. at 1952). The Court considers the several grounds asserted by Defendants in support of their Motions to Dismiss. III. Whether Aliens Detained Abroad by the Military Are Barred from Bringing Suit Based on Their Detention Defendants contend first that under the laws of war, aliens detained abroad by the military cannot sue for damages for treatment arising out of their confinement. They say that the Supreme Court’s decision in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), forecloses such suits through a bright line rule that “[a]lien enemies resident abroad cannot maintain a civil action of any type in United States courts.” L-3 Mot. to Dismiss at 10. Defendants trace the Eisentrager rule to two lines of cases: one denying compensation for enemy property destroyed during wartime and the second holding that members of an occupying military force are exempt from the local laws and local tribunals of the occupied territory. A review of these cases suggests that they are either inapplicable or do not stand for the propositions Defendants suggest. A. Johnson v. Eisentrager In Eisentrager, a group of Nazi soldiers was convicted by a military tribunal of violations of the law of war and incarcerated in Germany in a military prison operated by the United States military. 339 U.S. at 765-66, 70 S.Ct. 936. The prisoners sought habeas corpus relief in a United States district court. Id. The Supreme Court denied relief on the grounds that the district court lacked jurisdiction to issue the writ since the prisoners were held to have no constitutional right to habeas corpus. Id. at 790-91, 70 S.Ct. 936. Based on six factors, said the Court, constitutional habeas corpus would not extend to a prisoner who (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States. Id. at 777, 70 S.Ct. 936. The Court took note of the practical problems in granting the prisoners relief. “To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing.” Id. at 778-79, 70 S.Ct. 936. Such a hearing would require “allocation of shipping space, guarding personnel, billeting and rations” and transportation for witnesses. Id. at 779, 70 S.Ct. 936. Finally, the writ would be “available to enemies during active hostilities” and would “hamper the war effort and bring aid and comfort to the enemy,” “diminish the prestige of our commanders,” and fetter a commander by allowing “the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention.” Id. To the extent that Eisentrager’s denial of habeas to Nazi war criminals might once have kept Plaintiffs in this case from seeking damages for alleged acts of torture by private military contractors, the Supreme Court’s decisions in Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), and Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), have significantly narrowed Eisentrager’s scope, making it, in this Court’s view, inapplicable to the present case. In Rasul, the Court determined that detainees at the United States’ naval base at Guantanamo Bay, Cuba were entitled to seek habeas relief under the general habeas corpus statute, 28 U.S.C. § 2241, as then written. 542 U.S. at 479, 124 S.Ct. 2686. The Court considered Eisentrager at length and noted three important ways in which it did not control their decision in Rasul, which also serve to distinguish the present case from Eisentrager. First and most important, the petitioners in Rasul had brought additional non-habeas claims as part of their petition. These claims, brought under the Alien Tort Statute, were dismissed by the lower courts, which read Eisentrager to say that aliens in military custody abroad lack the “privilege of litigation” in courts of the United States. Id. at 473, 124 S.Ct. 2686. The Supreme Court flatly rejected this argument, declaring that “nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the privilege of litigation in U.S. courts.” Id. at 484-85, 124 S.Ct. 2686 (quotation marks omitted). “The courts of the United States have traditionally been open to nonresident aliens.” Id. (citing Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578, 28 S.Ct. 337, 52 L.Ed. 625 (1908) (“Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights.”)). “The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court’s jurisdiction over their nonhabeas statutory claims.” Id. at 485, 124 S.Ct. 2686. This unequivocal statement — that aliens detained abroad by the military are not inherently barred from bringing suit in the United States — sharply contradicts Defendants’ broad assertion in the present case that enemy aliens detained abroad cannot maintain a civil action of any type in United States courts. Second, the Rasul Court explained that Eisentrager dealt only with the constitutional right to habeas corpus, not the statutory right. Id. at 476-77, 124 S.Ct. 2686. The Court noted that at the time of Eisentrager, precedent dictated that statutory habeas was unavailable to prisoners outside the territorial jurisdiction of the district court. Id. However, the case which had established this rule had since been overturned, thus abrogating that bar to statutory habeas. Id. at 478-79, 124 S.Ct. 2686. After evaluating the wording of the habeas statute, the Rasul Court determined that petitioners’ claims fell within the scope of the statute and therefore remanded the case to the district court to adjudicate the merits of their claims. Id. at 483-84, 485, 124 S.Ct. 2686. In this respect, Rasul indicates that when aliens detained abroad seek to bring suit in a court of the United States, their access to the courts does not depend on a constitutional nexus, only a statutory right. In Rasul, the petitioners could proceed where their claims arose from statute, regardless of whether they had any separate constitutional entitlement to seek relief. In the present case, Plaintiffs’ claims are based on the Alien Tort Statute and other state laws, separate and distinct from any constitutional entitlement, or lack thereof, to bring suit. Third, the Court in Rasul discussed the six factors mentioned in Eisentrager as well as the “practical problems” which led to the Eisentrager decision. As to the six factors, said the Court, “Eisentrager made quite clear that all six of the facts [were] critical to its disposition.” Id. at 475-76, 124 S.Ct. 2686. After discussing how all six factors interrelated in Rasul, the Court concluded that “[petitioners in these cases differ from the Eisentrager detainees in important respects.” Id. at 476, 124 S.Ct. 2686. The same may be said of the case at bar. Consideration of the six factors as they relate to the present case suggests that the Plaintiffs’ situation differs from that of the prisoners in Eisentrager. The only factors Plaintiffs and the Eisentrager petitioners have in common are the first two. Plaintiffs here appear to be enemy aliens, and there is nothing in the Complaint to suggest they have ever been or resided in the United States. The other four factors, however, are not met. Plaintiffs were not held as prisoners of war, but were instead arrested for reasons unknown; indeed they were never charged with any crimes. They were never tried or convicted of anything, let alone violations of the laws of war. Finally, none of the Plaintiffs in this case are still imprisoned. The fact that all six of these factors were deemed “critical” to the holding in Eisentrager argues strongly against extending that holding to a situation where only two of the six factors obtain. Similarly, the “practical problems” of Eisentrager are not in play in this case. Since Plaintiffs are no longer in custody, there is no need for the Government to supply “shipping space, guarding personnel, billeting and rations” or any other assistance in bringing them or their witnesses into court. The concern that allowing the suit to proceed would diminish the prestige of our commanders or fetter our military’s ability to wage war is also not present. As will be discussed in the sections dealing with the political question doctrine, infra Part V, and derivative sovereign immunity, infra Part VI, given the allegations of the Complaint, the private contractors in this suit do not stand in the shoes of the military. Allowing the suit to proceed will not place an unfair burden on the military or result in the Court injecting itself into the military’s sphere of operations. The Supreme Court’s decision in Boumediene fortifies the conclusion that Eisentrager does not prevent aliens confined abroad by the military from suing over the conditions of their confinement. By the time of Boumediene, in response to the decision in Rasul, Congress had modified the habeas statute to prevent detainees at Guantanamo Bay from seeking habeas relief. 128 S.Ct. at 2241. Even so, the Court held that the detainees were entitled to the protection of constitutional habeas corpus under the Suspension Clause of the U.S. Constitution. 128 S.Ct. at 2240 (discussing U.S. Const., Art. 1, § 9, cl. 2). Unlike Rasul, Boumediene focused on the reach of the Constitution and the Suspension Clause abroad rather than on the general ability of aliens detained abroad by the military to sue in United States courts. In considering the impact of Eisentrager, the Court stated that Eisentrager did not create any “formalistic” tests as to the ability to bring suit and was instead based on “practical considerations” such as those discussed above. Id. at 2257. In light of the Supreme Court’s willingness in Rasul and Boumediene to entertain suits brought by aliens and its meticulous parsing of Eisentrager’s reasoning, this Court does not accept Defendants’ contention that Eisentrager categorically prohibits enemy aliens detained abroad by the military from bringing civil suits in the United States. Plaintiffs possess the “privilege of litigation” in United States courts. B. Enemy Property Cases In support of their argument that aliens detained by the military abroad are barred from bringing suit based on their detention, Defendants also invite the Court’s attention to a line of cases in which aliens were denied compensation for property destroyed during wartime. The Court agrees that under the laws of war belligerents possess great latitude to confiscate or destroy enemy property. That latitude, however, is not limitless. The same principle applies to injury to people. While a belligerent may lawfully inflict death and destruction upon the enemy, the law of war nevertheless places some limits on the wanton and malicious treatment of human lives. While the Government or members of the military may not be liable for property destroyed or seized pursuant to the laws of war, this immunity does not extend to acts of torture committed in violation of the laws of war. The Court reviews the caselaw. Nations have “the power to prosecute [war] by all means and in any manner in which war may be legitimately prosecuted.” Miller v. United States, 78 U.S. (11 Wall.) 268, 305, 20 L.Ed. 135 (1870). “[T]he authority of a conquering power ... is, however, not without limitation, and ... is subject to the laws and usages of war, and, we may add, to such rules as are sanctioned by established principles of international law.” MacLeod v. United States, 229 U.S. 416, 432, 33 S.Ct. 955, 57 L.Ed. 1260 (1913) (citation omitted); Gates v. Goodloe, 101 U.S. 612, 617, 25 L.Ed. 895 (1879) (military commander could “suppress[ ] rebellion by all the means which the usages of modern warfare permitted”); Planter’s Bank v. Union Bank, 83 U.S. (16 Wall.) 483, 495, 21 L.Ed. 473 (1872) (military commander is only limited by what “the laws of war permit[ ], ... the pledged faith of the government, or by the effect of Congressional legislation”). A conquering power “may do anything necessary to strengthen itself and weaken the enemy,” and “[t]here is no limit to the powers that may be exerted in such cases, save those which are found in the laws and usages of war.” City of New Orleans v. N.Y. Mail S.S. Co., 87 U.S. (20 Wall.) 387, 394, 22 L.Ed. 354 (1874). Enemy property, in particular, is “subject to seizure, confiscation, and destruction.” Herrera v. United States, 222 U.S. 558, 569, 32 S.Ct. 179, 56 L.Ed. 316 (1912). Property “may be temporarily occupied or injured, or even destroyed, on the theater of and by military operations, either in a loyal State or in enemy’s country, in time of war, as a military necessity.” Nat’l Bd. of Young Men’s Christian Ass’n v. United States, 184 Ct.Cl. 427, 396 F.2d 467, 473 (1968). “The necessities of the war call[ ] for and justif[y] this.” Id. at 470. Because it is a belligerent’s prerogative to seize or destroy enemy property, it is “well recognized that a destruction of private property in battle or by enemy forces is not compensable.” Id.; United States v. Pacific R.R., 120 U.S. 227, 239, 7 S.Ct. 490, 30 L.Ed. 634 (1887) (“[F]or injuries to or destruction of private property in necessary military operations during the civil war, the government is not responsible.”). “[I]f actual war has been waged, acts of legitimate warfare cannot be made the basis of individual liability.” Underhill v. Hernandez, 168 U.S. 250, 253, 18 S.Ct. 83, 42 L.Ed. 456 (1897). Since the power to seize or destroy enemy property is so broad, military commanders enjoy ample discretion to determine what property should be seized or destroyed to further the war effort without giving rise to civil liability. See United States v. Caltex, 344 U.S. 149, 155, 73 S.Ct. 200, 97 L.Ed. 157 (1952) (not a taking to raze oil terminals which could be a “potential weapon of great significance” to enemy and were “destroyed that the United States might better and sooner destroy the enemy”); Pacific R.R., 120 U.S. at 234, 7 S.Ct. 490 (“Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general.”); Nat’l Bd., 396 F.2d at 472 (“[C]onfiscation of private property ..., through destruction or otherwise, to prevent it from falling into enemy hands, or to protect the health of troops, or as an incidental element of defense against hostile attack [] is not compensable under the fifth amendment.”); Franco-Italian Packing Co. v. United States., 130 Ct.Cl. 736, 128 F.Supp. 408, 414 (1955) (seizure of boats “arising from the exercise of judgment by an officer charged by the United States with the direct duty of defending the western approaches to the Panama Canal from enemy attack” was not a taking). All this said, a belligerent’s right to seize or destroy enemy property is not unbounded. The Paquete Habana, 175 U.S. 677, 709, 20 S.Ct. 290, 44 L.Ed. 320 (1900) (“The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule.”). Certain types of property have been deemed exempt from destruction or capture during war, despite the fact that attacking or destroying them might “better and sooner destroy the enemy.” Caltex, 344 U.S. at 155, 73 S.Ct. 200. For example, hospitals, hospital ships, and other facilities and equipment used to treat the sick and wounded are immune from attack, destruction, or harassment so long as they are used for humanitarian purposes. United States v. Banks, 4 M. J. 620, 620-23 (N.C.M.R.1977) (discussing treaties and customary international law which exempt medical personnel and facilities from attack during war). Some types of seagoing vessels, despite being enemy property used by enemy aliens, are also afforded protection. “By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war.” Paquete Habana, 175 U.S. at 709, 20 S.Ct. 290. It is also “an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, ... that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture.” Id. at 708, 20 S.Ct. 290; see also United States v. Dewey, 188 U.S. 254, 278-79, 23 S.Ct. 415, 47 L.Ed. 463 (1903) (same for small, coastal commercial boats and barges even though they are enemy property). Art objects and items of cultural importance are afforded similar special treatment since “[t]he arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favor and protection.” 175 U.S. at 709, 20 S.Ct. 290 (quoting The Marquis de Somerueles, 1 Stew. V.A. 482, 483 (Vice-Adm.Ct. N.S. 1813) (ordering restitution of captured paintings and printings which were taken from an otherwise lawfully seized ship)); see also The Amelia, 1 F.Cas. 595, 595-96 (D.Penn.1861) (ordering return of books destined for the University of North Carolina library taken from otherwise lawfully seized vessel). These limitations are well illustrated by The Paquete Habana, where a United States warship captured two coastal fishing vessels off the coast of Cuba during the Spanish-American War. 175 U.S. at 679, 20 S.Ct. 290. The ships were owned and operated by Spanish subjects, making them enemy property. See id. at 678-79, 20 S.Ct. 290. The Court, after a lengthy review of the law of war and its relationship to fishing vessels, determined that the two ships were exempt from capture. Id. at 714, 20 S.Ct. 290. The Navy’s actions being illegal, the Court ordered that the owners receive restitution and damages for the vessels, notwithstanding that the actions occurred in wartime and would have been lawful if taken against a different class of ship. Id. This same principle was considered in Luther v. Borden, 48 U.S. (7 How.) 1, 34, 12 L.Ed. 581 (1849). Defendants there were militia members in Rhode Island who assisted in suppressing an armed insurrection in the state. Id. Martial law was declared and defendants were ordered to arrest plaintiff as part of suppressing the rebellion. Id. Accordingly, defendants broke into plaintiffs house to arrest him, and plaintiff later sued for damages, claiming defendants had acted unlawfully. Id. The Court, in discussing the merits, considered “whether the defendants, acting under military orders issued under the authority of the government, were justified in breaking and entering the plaintiffs house.” Id. at 45. The Court ultimately decided defendants’ acts were appropriate, stating that “[i]t was a state of war; and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition.” Id. But, the Court went on to declare that No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury willfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable. Id. at 46. The direction of these cases dealing with affronts to property is clear: A defendant can only claim immunity under the laws of war if its actions comport with the laws of war. During wartime, “many things are lawful in that season, which would not be permitted in a time of peace.” Respublica v. Sparhawk, 1 U.S. (1 Dall.) 357, 362, 1 L.Ed. 174 (1788). Some actions, however, have been deemed so repulsive to mankind, or so disconnected from prosecuting and winning a war, that they are universally condemned. The law of war attempts to rein in these behaviors. And just as there are rules regulating the treatment of property, there are also rules pertaining to the treatment of people. One such universally recognized rule is that torture is prohibited. “Among the rights universally proclaimed by all nations ... is the right to be free of physical torture.” Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2nd Cir.1980). “Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.” Sosa v. Alvarez-Machain, 542 U.S. 692, 731, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (quoting Filartiga, 630 F.2d at 890). Torture is “among the outright violations of the laws of war and of the conscience of a civilized world.” Application of Yamashita, 327 U.S. 1, 29, 66 S.Ct. 340, 90 L.Ed. 499 (1946). The prohibition against torture is recognized as a jus cogens norm, which is to say, “a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted.” Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714 (9th Cir.1992) (quoting Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332). Treaties, conventions, and declarations from around the world further support the global consensus that torture is a violation of the law of nations and is never permitted, even in wartime. See e.g., The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 39 U.N. GAOR Supp. (No. 51), 23 I.L.M. 1027 (1984); Declaration on the Protection of All Persons from Being Subjected to Torture, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/1034 (1975); American Convention on Human Rights, Nov. 22, 1969, 36 O.A. S.T.S. 1, O.A.S. Official Records OEA/Ser. 4 v/II 23, doc 21, rev. 2 (1975); European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3, Council of Europe, Europ. T.S. No. 5, 213 U.N.T.S. 211 (1968); International Covenant on Civil and Political Rights, Annex to G.A. Res. 2200(XXI)a, 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, arts. 3, 12, 50, August 12, 1949, 6 U.S.T. 3114; Geneva Convention Relative to the Protection of Prisoners of War, arts. 3, 17, 87, Aug. 12, 1949, 6 U.S.T. 3316; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, arts. 3, 32, 147, Aug. 12, 1949, 6 U.S.T. 3516; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of the Armed Forces, arts. 3, 12, 51, August 12, 1949, 6 U.S.T. 3217; Universal Declaration of Human Rights, G.A. Res. 217A(III), 3 U.N. GAOR Supp. (No. 16), U.N. Doc. A/810 (1948). Domestic laws of the United States reinforce the international scope of the prohibition against torture. See, e.g. 10 U.S.C. §§ 801, 950v; 18 U.S.C. §§ 2340A, 2441; 22 U.S.C. § 2152; 28 U.S.C. § 1350, statutory note. Plaintiffs in the present case have alleged that Defendants inflicted numerous acts of torture upon them, including beatings, mock executions, threatening them with death and rape, and electrical shocks. The actions alleged, if proven, clearly exceed the immunities ordinarily afforded to belligerents. The Court concludes that Defendants are not shielded by the laws of war against liability for the violent conduct said to have occurred here. C. Civil Liability of Soldiers and Contractors in Local and Domestic Civilian Courts Defendants also ask the Court to consider a line of cases holding that, under the law of war, members of the military are exempt from local laws and immune from suit in the local courts of a country which the military has invaded or occupied. Defendants aver that this principle, by extension, also immunizes military contractors from the domestic laws and domestic courts of their own nation. The Court disagrees. While Defendants may be immune under the law of war from suit in the courts of Iraq, caselaw does not support expanding this rule to protect Defendants against suit in the courts of the United States. Defendants rely primarily on Dow v. Johnson, 100 U.S. 158, 25 L.Ed. 632 (1879), which involved a defendant who was a Union army general commanding an occupation force in Louisiana during the Civil War. Id. at 158-59. While the war was still in progress, plaintiff sued defendant in a Louisiana court after soldiers under defendant’s command seized property from plaintiffs house. Id. at 159-60. Defendant did not appear at trial and a default was entered against him. Id. at 160. Plaintiff later sought to enforce the judgment in a court of the United States. Id. at 161. The Supreme Court eventually determined that the judgment was void since the Louisiana court which had issued the judgment was deemed to have lacked jurisdiction, under the law of war, over a member of the conquering army. Id. at 169. The Court stated that when “our armies marched into ... the enemy’s country, their officers and soldiers were not subject to its laws, nor amenable to its tribunals for their acts.” Id. at 165. Dow, in dicta, does contain some apparently conflicting language on the question of whether soldiers are also immune from suit in the domestic tribunals of their home country. Thus, in one part of the opinion, the Court states that the soldiers “were subject only to their own government, and only by its laws, administered by its authority, could they be called to account.” Id. In contrast, however, the Court later states that If guilty of wanton cruelty to persons, or of unnecessary spoliation of property, or of other acts not authorized by the laws of war, they may be tried and punished by the military tribunals. They are amenable to no other tribunal, except that of public opinion, which, it is to be hoped, will always brand with infamy all who authorize or sanction acts of cruelty and oppression. Id. at 166. Admittedly, this latter language suggests that soldiers would be immune from civil liability in domestic courts even for acts which violate the laws of war, and that they could only be prosecuted by military tribunals. But, accepting that this statement may once have been valid, later case-law has rather clearly qualified it. In Freeland v. Williams, the Supreme Court had the opportunity to discuss its holding in Dow, and stated Ever since the case of Dow v. Johnson [], the doctrine has been settled in the courts that in our late civil war each party was entitled to the benefit of belligerent rights, as in the case of public war, and that, for an act done in accordance with the usages of civilized warfare under and by military authority of either party, no civil liability attached to the officers or soldiers who acted under such authority. 131 U.S. 405, 416, 9 S.Ct. 763, 33 L.Ed. 193 (1889) (emphasis added). The broad statement in Dow suggesting that the law of war grants total immunity in any civil court is thus an outlier compared to the numerous cases, discussed supra Part IV.B, holding that immunity under the law of war only extends to acts done in accordance with the law of war. Freeland’s restatement of Dow’s holding brings Dow into line with these cases. Dow is therefore better read, in this Court’s view, as standing for the proposition that the courts of an enemy nation cannot pass judgment over occupying soldiers, rather than for the principle that soldiers are invariably immune in any civil court for any act taken during wartime. Another reason why it may be said that Dow created no new rules as to the civil liability of members of the military in domestic courts is that domestic courts have in fact held military members civilly liable for actions taken during wartime. See The Paquete Habana, 175 U.S. 677, 712-14, 20 5. Ct. 290, 44 L.Ed. 320 (1900) (damages imposed for unlawful seizure of fishing vessels during military operation); Mitchell v. Harmony, 54 U.S. 115, 135-37, 13 How. 115, 14 L.Ed. 75 (1851) (soldier liable for trespass for wrongful seizure of citizen’s goods while in Mexico during Mexican War); Little v. Barreme, 6 U.S. 170, 177-79, 2 Cranch 170, 2 L.Ed. 243 (1804) (naval officer liable to ship owner for damages for illegal seizure of his vessel during wartime). Other courts, while ultimately finding no civil liability, have examined on the merits whether a given act violated the law of war, as opposed to dismissing the case outright regardless of the act committed. See Ford v. Surget, 97 U.S. 594, 605-06, 24 L.Ed. 1018 (1878) (defendant not liable for burning cotton since act of destroying property to prevent it from falling into enemy hands was allowed under the laws of war); Lamar v. Browne, 92 U.S. 187, 194, 23 L.Ed. 650 (1875) (no liability for defendant who seized cotton which could have been sold to support rebellion); Luther, 48 U.S. at 46 (no liability for defendant breaking and entering house to arrest member of insurrection). Since the Court finds that in some instances members of the military are amenable to civil suits in domestic courts, it finds that a fortiori military contractors are also amenable to civil suit. As for the statement in Dow that members of the military “may be tried and punished by the military tribunals” and “are amenable to no other tribunal,” 100 U.S. at 166, assuming this even were an accurate statement of the law, the rule would still only apply to members of the military and not to contractors. It was not until late-2006, with the passage of the National Defense Authorization Act for Fiscal Year 2007 § 552, 10 U.S.C. § 802(a)(10), that military contractors such as those serving in Iraq and Afghanistan were made subject to trial by military tribunals. If contractors were truly immune from suit in domestic civilian courts, as Defendants assert, then from the time of Dow they would have existed in a lawless loophole where they were not subject to the laws of any court, civilian or military. The better reading of Dow’s statement that soldiers are subject only to military tribunals, if accurate, is that it only applies to soldiers but has no bearing on whether military contractors are subject to domestic civilian courts. IV. Whether Plaintiffs’ Suit Is Nonjusticiable Under the Political Question Doctrine Defendants next contend that Plaintiffs’ suit is nonjusticiable under the political question doctrine. “The nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). “The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). If deciding a case would require a court “to move outside the customary areas of judicial competence or if other prudential considerations counsel against judicial intervention, then [the court] must conclude that the controversy is nonjusticiable.” Tiffany v. United States, 931 F.2d 271, 276 (4th Cir.1991) (citation and quotation marks omitted). The Supreme Court in Baker v. Carr set forth six separate factors which would demonstrate the presence of a political question. Prominent on the surface of any case held to involve a political question is found [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 it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution 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. Baker, 369 U.S. at 217, 82 S.Ct. 691. But, “[u]nless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.” Id. [43^47] District courts have also been cautioned to distinguish between “political questions,” which raise separation of power concerns, and “political cases,” which may be controversial but do not impinge upon any branch’s constitutional powers. Id. “The courts cannot reject as [nonjusticiable] a bona fide controversy as to whether some action denominated ‘political’ exceeds constitutional authority.” Id. While many cases involving foreign affairs do raise political questions, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Japan Whaling, 478 U.S. at 229-30, 106 S.Ct. 2860 (quoting Baker, 369 U.S. at 211, 82 S.Ct. 691). “[T]he fact that an action is taken in the ordinary exercise of discretion in the conduct of war does not put it beyond the judicial power.” Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir.1992) (quotation marks omitted); McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1358 (11th Cir.2007) (“[I]t is clear that not even military judgments are completely immune from judicial review.”). The court must make “a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.” Baker, 369 U.S. at 211-12, 82 S.Ct. 691. In an “ordinary tort suit” against a nongovernmental entity, “[t]he department to whom this issue has been constitutionally committed is none other than our own-the Judiciary,” which “strongly suggests that the political question doctrine does not apply.” Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2nd Cir.1991) (quotation marks omitted). In the present case, Defendants raise the first and second Baker factors as grounds for dismissal. The Court, however, finds that the separation of power concerns presented by those two factors are not at issue in this ease, and therefore Plaintiffs’ case is properly justiciable. A. Textually Demonstrable Constitutional Commitment of the Issue to a Coordinate Political Department With the Government’s increased use of military contractors in Iraq and Afghanistan, a body of caselaw has begun to develop as to when suits against a military contractor implicate the political question doctrine. Among the cases which have rejected the political question doctrine as a defense are three which are almost factually identical to this case (i.e., alleged torture of detainees in Iraq by private military contractors). In Al Shimari v. CACI Premier Technology, Inc., the U.S. District Court for the Eastern District of Virginia recognized that for a suit to be barred under the political question doctrine, plaintiffs must “challenge official policies and directives that were established by the executive branch and are consequently non-reviewable by the judiciary.” 657 F.Supp.2d 700, 708 (E.D.Va.2009). There, as here, plaintiffs alleged that defendant contractors conspired together without orders from or approval by the Executive in their treatment of the detainees. Id. at 709. The court rejected the argument that simply because the private contractors worked in close proximity with members of the military there was “involvement and approval of high-level government officials” in defendants’ acts. Id. The court explained that the suit “challenges not the government itself or the adequacy of official government policies, but the conduct of government contractors carrying on a business for profit.” Id. “The judiciary is regularly entrusted with the responsibility of resolving this type of dispute.” Id. at 710. Similarly, in Ibrahim v. Titan Corp., 391 F.Supp.2d 10, 16 (D.D.C.2005), and Saleh v. Titan Corp., 436 F.Supp.2d 55, 57 (D.D.C.2006), the U.S. District Court for the District of Columbia determined that military contractors could not raise a political question defense against alleged acts of torture committed against detainees in Iraq. The court stated that “[a]n action for damages arising from the acts of private contractors and not seeking injunctive relief does not involve the courts in ‘overseeing the conduct of foreign policy or the use and disposition of military power.’ ” 391 F.Supp.2d at 15 (quoting Luftig v. McNamara, 373 F.2d 664, 666 (D.C.Cir.1967)). The court also noted that “[h]ere plaintiffs sue private parties for actions of a type that both violate clear United States policy and have led to recent high profile court martial proceedings against United States soldiers.” Id. at 16 (citation removed). Another case which rejected the political question defense is McMahon v. Presidential Airways, Inc., a suit against a private charter airline which had contracted with the Government to transport military personnel in Afghanistan. 502 F.3d at 1337. One of the company’s planes crashed in Afghanistan killing three soldiers onboard, and the soldiers’ next-of-kin sued the charter company for negligence. Id. In addressing the political question, the court stated that defendant: 1) “must demonstrate that the claims against it will require reexamination of a decision by the military;” and 2) “must demonstrate that the military decision at issue is ... insulated from judicial review.” Id. at 1359-60 (emphasis in original). While the military did have some control over the operation and use of the planes, plaintiffs only challenged as negligent decisions and actions which were made at the company’s discretion without involvement by the military. Id. at 1361-62. Several other cases have rejected the political question doctrine in civil suits against private military contractors. See Lane v. Halliburton, 529 F.3d 548, 555-56, 560 (5th Cir.2008) (suit by contractor’s employees who were injured in Iraq claiming that contractor negligently and fraudulently misrepresented the dangers of working in Iraq not a political question since contractor “is not part of a coordinate branch of the federal government” and claims did not address Army’s role in protecting the contractors, only “actions taken and omissions made” by the contractor); Koohi, 976 F.2d at 1332 (no political question in design defect suit against missile system manufacturer where U.S. Navy inadvertently shot down civilian plane, as military decisions are not inherently immune from review and because suit sought less-intrusive remedy of monetary damages rather than an injunction directed at future action); Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400, 427 (W.D.Pa.2009) (suit over contractor’s faulty wiring work on military base which led to soldier’s electrocution not a political question since the claims “do not directly implicate professional military judgments” and “Army neither supervised nor inspected any of the repairs that [defendant] actually performed”); Flanigan v. Westwind Technologies, Inc., 648 F.Supp.2d 994, 1001, n. 2 (W.D.Tenn.2008) (suit against combat helicopter manufacturers arising out of helicopter crash in Afghanistan not a political question since suit “does not seek to assign blame for [pilot]’s death to any inadequacies in Army training or flight procedures” and only addresses “actions taken solely by the [contractor] Defendants”); Getz v. Boeing, 2008 WL 2705099, at *5-8 (N.D.Cal. July 8, 2008) (design and manufacturing defect claims against contractor arising from military helicopter crash in Afghanistan not a political question since crash did not implicate military’s decision making); Potts v. Dyncorp Int’l LLC, 465 F.Supp.2d 1245, 1251-52 (M.D.Ala.2006) (car accident caused by military contractor’s employee while transporting supplies in Iraq did not raise political question where convoy was directed by contractor and contractor was “not managed or controlled by the United States military forces”); Lessin v. Kellogg Brown & Root, 2006 WL 3940556, at *2-3 (S.D.Tex. June 12, 2006) (where military serviceman was struck in head and injured by malfunctioning ramp on contractor’s truck while assisting in roadside repairs in combat zone, no political question since suit addressed contractor’s negligent maintenance of truck and training of driver, not “policies or decisions of the military”); Norwood v. Raytheon Co., 455 F.Supp.2d 597, 604-05 (W.D.Tex.2006) (no political question in suit by military servicemen against radar manufacturer alleging radiation exposure from the radars, where suit challenged contractor’s design and failure to warn, not military’s use of the radars). In contrast to the foregoing, the Eleventh Circuit in Carmichael v. Kellogg, Brown & Root Services, Inc. upheld dismissal of a suit against a military contractor based on the political question doctrine where a soldier riding in a truck operated by a private contractor as part of a supply convoy was injured when the truck veered off road and flipped over. 572 F.3d 1271, 1278 (11th Cir.2009). The district court had initially denied the defendant’s motion to dismiss on political question grounds, but reconsidered its decision after the parties had taken discovery. Id. at 1279. The appellate court found that the military totally controlled the operation of the convoy even though the drivers worked for the private contractor. Id. at 1281-82. For example, the military decided the date and time of the convoy’s departure, the speed the convoy traveled, the route used, the quantity of cargo, the number of trucks, the distance between vehicles, and the security measures used to safeguard the convoy. Id. “[Tjhese decisions required the specific exercise of military expertise and judgment,” while there was “not the slightest hint in the record suggesting that [the contractor] played even the most minor role in making any of these essential decisions.” Id. at 1282 (emphasis in original). Any attempt to evaluate the contractor’s negligence in driving the truck would require the court to also evaluate the military’s judgments on how best to operate its supply convoys in a warzone, and that would violate the political question doctrine. Id. at 1283. The Eleventh Circuit also distinguished its prior opinion in McMahon v. Presidential Airways, Inc., noting that while the military played only a minimal role in the operation of the crashed flight in McMahon, the military’s control over the convoy in Carmichael was “plenary.” Id. at 1290. To be sure, other courts have dismissed suits against private military contractors under the political question doctrine. See Whitaker v. Kellogg Brown & Root, Inc., 444 F.Supp.2d 1277, 1281-82 (M.D.Ga.2006) (accident where contractor’s truck struck and killed soldier in supply convey raised political question since contractor’s drivers “were performing their duties subject to the military’s planning, orders, and regulations,” and military decided on “placement of vehicles in the convoy, distance between vehicles in the convoy, rate of speed of the convoy, and convoy escort and security”); Smith v. Halliburton Co., 2006 WL 2521326, at *3 (S.D.Tex. Aug. 30, 2006) (where contractor’s employee was killed by suicide bomber in mess hall at U.S. Army base in Iraq, suit by employee’s estate claiming contractor failed to provide adequate security at mess hall raised a political question since “Army retained the authority and responsibility for the security and force protection functions at [base and mess hall] at all times under this contract” and contractor “was never entrusted with such security or force protection functions”) (quotation marks omitted); Bentzlin v. Hughes Aircraft Co., 833 F.Supp. 1486, 1497 (C.D.Cal.1993) (in suit against missile manufacturer by estates of soldiers killed by friendly fire during combat due to malfunctioning missile targeting system, suit dismissed under political question doctrine since “claims necessarily require inquiry into military strategy and ... orders to [combat aircraft] pilots and ground troops”). Viewing these cases collectively, however, suggests that when dealing with private military contractors, the presence vel non of a political question turns first on the level of actual control the military exerted over the contractor’s actions which led to the alleged tortious conduct. Where the military is only minimally or peripherally involved in the contractor’s actions or decisions (as in McMahon), or only exercises control over areas of the contractor’s work unrelated to the precise behavior which led to the alleged tort (as in Lane and Potts), or only has control over a contractor at a general or theoretical level but not in practice (as in Harris and Al Shimari), the suit does not raise a political question. But where the military in fact exerts controlling authority over a contractor’s actions and those actions result in a tort (as in Carmichael and Whitaker), examining the contractor’s acts would necessarily require the court to second-guess the military’s judgment. If that judgment is of the kind normally reserved for the political branches and not the Judiciary, then the suit raises a political question and cannot proceed. In the case at bar, Plaintiffs have consistently alleged that L-3 and Nakhla were acting of their own volition and not following the instructions or policies of the political branches. Among other things, they claim: “L-3 permitted L-3 translators to ignore — repeatedly—the military’s instructions to abide by the Geneva Conventions and permitted L-3 translators to abuse and torture prisoners,” Pis.’ Second Am. Compl. ¶ 430; “L-3 willfully failed to report L-3 employees’ repeated assaults and other criminal conduct by its employees to the United States or Iraqi authorities,” id. at ¶ 432; “L-3 affirmatively hid the misconduct of its employees from the United States military,” id. at ¶ 433; “L-3 discouraged its employees from reporting prisoner abuse to the United States authorities,” id. at ¶ 434; L-3 participated in “misleading non-conspiring military and government officials about the state of affairs at the prisons,” id. at ¶ 445(d); “Nakhla and L-3 knew that military officials were prohibited from torturing prisoners by the Army Field Manual and other controlling law, and that any military officials who were doing so were violating the law,” id. at ¶ 450; “Nakhla and L-3 knew that the United States government has denounced the use of torture and other cruel, inhuman or degrading treatment at all times.” id. at ¶ 451. Notably, the Complaint does not claim that L-3 or Nakhla acted under the orders, directions, or policies of either political branch in carrying out the allegedly tortious acts. At oral argument, Plaintiffs’ counsel further averred that Defendants were not following the policies of the military or the Executive when they allegedly tortured Plaintiffs. Mar. 9, 2009 Hr’g Tr., 66:10-:12, 67:16-:22, 68:ll-:23, 74:15-:23, 80:19-81:8. Plainly, Plaintiffs have limited their claims to the alleged acts of private contractors which did not arise out of the policies or orders of the military. Indeed, they contend that Defendants acted contrary to the policies of the United States and hid their actions from the Government. This is the critical point. That the contractors were in Iraq to work with the military, and by extension the Executive Branch, does not ipso facto signify that they were part of the Executive Branch. Even conspiring with low-level members of the military would not equate with acting under the direction of high-level executive officials constitutionally charged with setting policy. When evaluating the status of contractors, the Court must consider whether the specific bad acts allegedly giving rise to the tort were intertwined with the non-reviewable judgments of the military. Here, Defendants are alleged to have operated independently of the military and its policies insofar as those acts are concerned. Plaintiffs do not challenge the constitutionally protected judgments of a political branch, only the decisions and actions of a private corporation and its employee. Tiffany v. United States, 931 F.2d 271 (4th Cir.1991), cited by Defendants, does not affect this calculus. In Tiffany, passengers on a private plane were killed when they flew unidentified into an air defense zone and collided with a military fighter plane sent to intercept and identify them. Id. at 272-75. The estates of the deceased passengers sued the Government, claiming negligence on the part of the military pilot and the ground control operators who ordered and supervised the interception. Id. The Fourth Circuit held that the case presented a political question and dismissed. Id. at 282. The case, said the court, “calls into question the government’s most important procedures and plans for the defense of the country.” Id. at 275. “If [the court] were to hold that the United States acted negligently in conducting the defense of its eastern border, we would be interjecting tort law into the realm of national security and second-guessing judgments with respect to potentially hostile aircraft that are properly left to the other constituent branches of government.”