                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1937


SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID;
SALAH HASAN NUSAIF AL-EJAILI; ASA'AD HAMZA HANFOOSH AL-
ZUBA'E,

                Plaintiffs - Appellants,

          v.

CACI PREMIER TECHNOLOGY, INC.; CACI INTERNATIONAL, INC.,

                Defendants – Appellees,

          and

TIMOTHY DUGAN; L-3 SERVICES, INC.,

                Defendants.

--------------------------------

CIVIL PROCEDURE PROFESSORS; DOLLY FILARTIGA; ABUKAR HASSAN
AHMED; DANIEL ALVARADO; DR. JUAN ROMAGOZA ARCE; ALDO
CABELLO; ZITA CABELLO; AZIZ MOHAMED DERIA; NERIS GONZALES;
CARLOS MAURICIO; GLORIA REYES; OSCAR REYES; CECILIA SANTOS
MORAN; ZENAIDA VELASQUEZ; BASHE ABDI YOUSUF; INTERNATIONAL
LAW SCHOLARS; WILLIAM R. CASTO; MARTIN S. FLAHERTY; NASSER
HUSSEIN; STANLEY N. KATZ; MICHAEL LOBBAN; JENNY S. MARTINEZ;
RETIRED   MILITARY    OFFICERS;   UNITED   NATIONS   SPECIAL
RAPPORTEURS ON TORTURE,

                Amici Supporting Appellants.
                               No. 13-2162


SUHAIL NAJIM ABDULLAH AL SHIMARI; TAHA YASEEN ARRAQ RASHID;
SALAH HASAN NUSAIF AL-EJAILI; ASA'AD HAMZA HANFOOSH AL-
ZUBA'E,

                 Plaintiffs – Appellants,

           v.

CACI PREMIER TECHNOLOGY, INC.; CACI INTERNATIONAL, INC.,

                 Defendants – Appellees,

           and

TIMOTHY DUGAN; L-3 SERVICES, INC.,

                 Defendants.

--------------------------------

CIVIL PROCEDURE PROFESSORS; DOLLY FILARTIGA; ABUKAR HASSAN
AHMED; DANIEL ALVARADO; DR. JUAN ROMAGOZA ARCE; ALDO
CABELLO; ZITA CABELLO; AZIZ MOHAMED DERIA; NERIS GONZALES;
CARLOS MAURICIO; GLORIA REYES; OSCAR REYES; CECILIA SANTOS
MORAN; ZENAIDA VELASQUEZ; BASHE ABDI YOUSEF; INTERNATIONAL
LAW SCHOLARS; WILLIAM R. CASTRO; MARTIN S. FLAHERTY; NASSER
HUSSEIN; STANLEY N. KATZ; MICHAEL LOBBAN; JENNY S. MARTINEZ;
RETIRED   MILITARY    OFFICERS;   UNITED   NATIONS   SPECIAL
RAPPORTEURS ON TORTURE,

                 Amici Supporting Appellants.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00827-GBL-JFA)


Argued:   March 18, 2014                     Decided:   June 30, 2014



                                    2
Before KEENAN and FLOYD, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.


Vacated and remanded by published opinion.    Judge Keenan wrote
the opinion, in which Judge Floyd and Judge Cogburn joined.


ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York,
New York; Robert P. LoBue, PATTERSON, BELKNAP, WEBB & TYLER, New
York, New York, for Appellants.      Joseph William Koegel, Jr.,
STEPTOE & JOHNSON LLP, Washington, D.C., for Appellees.         ON
BRIEF:    Katherine    Gallagher,   Jeena    Shah,    CENTER   FOR
CONSTITUTIONAL RIGHTS, New York, New York; Shereef Hadi Akeel,
AKEEL & VALENTINE, P.C., Troy, Michigan; George Brent Mickum IV,
LAW FIRM OF GEORGE BRENT MICKUM IV, Bethesda, Maryland, for
Appellants.      John F. O'Connor, STEPTOE & JOHNSON LLP,
Washington, D.C., for Appellees.     Tyler R. Giannini, Sarah P.
Alexander, International Human Rights Clinic, HARVARD LAW
SCHOOL, Cambridge, Massachusetts, for Amici William R. Casto,
Martin S. Flaherty, Nasser Hussain, Stanley N. Katz, Michael
Lobban, and Jenny S. Martinez. Stephen B. Pershing, THE CHAVERS
FIRM, LLC, Washington, D.C.; Ralph G. Steinhardt, Arin Melissa
Brenner, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Washington,
D.C., for Amicus International Law Scholars.      Jonathan Hafetz,
Rachel Godsil, Jon Romberg, Chelsea Jasnoff, Matthew Mierswa,
Center for Social Justice, SETON HALL UNIVERSITY SCHOOL OF LAW,
Newark, New Jersey, for Amicus Retired Military Officers.       L.
Kathleen Roberts, Nushin Sarkarati, Scott A. Gilmore, THE CENTER
FOR JUSTICE & ACCOUNTABILITY, San Francisco, California; Ali A.
Beydoun,    UNROW   HUMAN   RIGHTS   IMPACT   LITIGATION   CLINIC,
Washington, D.C., for Amici Dolly Filartiga, Abukar Hassan
Ahmed, Daniel Alvarado, Juan Romagoza Arce, Aldo Cabello, Zita
Cabello, Aziz Mohamed Deria, Neris Gonzales, Carlos Mauricio,
Gloria Reyes, Oscar Reyes, Cecilia Santos Moran, Zenaida
Velasquez, and Bashe Abdi.     Deena R. Hurwitz, Lauren Schnyer,
Second Year Law Student, Jennifer Tian, Third Year Law Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia,
for Amicus United Nations Special Rapporteurs on Torture.
Joshua S. Devore, Agnieszka M. Fryszman, CHOEN MILSTEIN SELLERS
& TOLL PLLC, Washington, D.C., for Amici Civil Procedure
Professors, Erwin Chemerinsky, Helen Hershkoff, Allan Paul Ides,
Stephen I. Vladeck, and Howard M. Wasserman.




                                3
BARBARA MILANO KEENAN, Circuit Judge:

     In    this   appeal,    we    consider    whether   a    federal   district

court has subject matter jurisdiction to consider certain civil

claims seeking damages against an American corporation for the

torture and mistreatment of foreign nationals at the Abu Ghraib

prison in Iraq. 1        The primary issue on appeal concerns whether

the Alien Tort Statute, 28 U.S.C. § 1350, as interpreted by the

Supreme Court in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.

1659 (2013), provides a jurisdictional basis for the plaintiffs’

alleged violations of international law, despite the presumption

against extraterritorial application of acts of Congress.                      We

also address the defendants’ contention that the case presents a

“political    question”         that   is     inappropriate      for    judicial

resolution under our decision in Taylor v. Kellogg Brown & Root

Services, Inc., 658 F.3d 402 (4th Cir. 2011).

     We conclude that the Supreme Court’s decision in Kiobel

does not foreclose the plaintiffs’ claims under the Alien Tort

Statute,    and   that    the     district    court   erred    in   reaching    a

contrary    conclusion.         Upon   applying    the   fact-based     inquiry

articulated by the Supreme Court in Kiobel, we hold that the


     1
       Some of the information pertinent to this appeal has been
filed under seal.   This Court has avoided reference to sealed
documents to the greatest extent possible and has made any
necessary redactions to the publicly available version of the
opinion.


                                        4
plaintiffs’     claims    “touch    and    concern”   the   territory   of   the

United States with sufficient force to displace the presumption

against extraterritorial application of the Alien Tort Statute.

See Kiobel, 133 S. Ct. at 1669.                However, we are unable to

determine from the present record whether the claims before us

present nonjusticiable political questions.                 Therefore, we do

not reach the additional issue of the district court’s dismissal

of the plaintiffs’ common law claims, and we vacate the district

court’s judgment with respect to all the plaintiffs’ claims and

remand the case to the district court.                   We direct that the

district court undertake factual development of the record and

analyze its subject matter jurisdiction in light of our decision

in Taylor and the principles expressed in this opinion.



                                          I.

     In 2003, a multi-national force led by the United States

and the United Kingdom invaded Iraq and deposed its sovereign

leader, Saddam Hussein.         The United States took control of Abu

Ghraib, the site of a prison facility near Baghdad, and used the

prison    to    detain    various    individuals,       including   criminals,

enemies    of    the     provisional      government,    and   other    persons

selected for interrogation because they were thought to possess

information regarding Iraqi insurgents.



                                          5
       Due to a shortage of trained military interrogators, the

United     States       hired   civilian        contractors      to     interrogate

detainees at Abu Ghraib.             During the time period relevant to

this   civil     action,    those   private      interrogators       were    provided

exclusively       by    CACI    Premier       Technology,       Inc.       (CACI),   a

corporation domiciled in the United States.                     CACI’s corporate

headquarters is located in Virginia, and CACI is a wholly-owned

subsidiary of CACI International, Inc. (CACI International), a

publicly    traded      Delaware    corporation     that      also   has    corporate

headquarters in Virginia.

       According to an official investigation commissioned by the

United     States      Department    of       Defense   (Defense       Department),

“numerous incidents of sadistic, blatant, and wanton criminal

abuses were inflicted on several detainees” at the Abu Ghraib

prison between October and December 2003.                    MAJ. GEN. ANTONIO M.

TAGUBA, ARTICLE 15-6 INVESTIGATION OF THE 800TH MILITARY POLICE

BRIGADE    16    (2004)    [hereinafter       REPORT    OF    MAJ.   GEN.    TAGUBA].

These atrocities were condemned by the President of the United

States    as    being     “abhorrent”     practices     that    “don't      represent

America.”       White House, Press Release, President Bush Meets with

Al Arabiya Television, 2004 WLNR 2540883 (May 5, 2004).                          Both

houses of Congress condemned the abuses, stating that those acts

“contradict[ed] the policies, orders, and laws of the United

States and the United States military,” H.R. Res. 627, 108th

                                          6
Cong. (2004), and “urg[ing] that all individuals responsible for

such despicable acts be held accountable,” S. Res. 356, 108th

Cong.       (2004).          Investigations           conducted       by       the   Defense

Department         concluded        that       CACI       interrogators        directed      or

participated        in     some   of    the    abuses,       along   with      a   number    of

military personnel.               See REPORT OF MAJ. GEN. TAGUBA 48; MAJ.

GEN. GEORGE R. FAY, ARTICLE 15-6 INVESTIGATION OF THE ABU GHRAIB

DETENTION FACILITY AND 205TH MILITARY INTELLIGENCE BRIGADE 7-8,

84, 86-87, 89, 116-17, 132-35 (2004).

        The four plaintiffs in this case are foreign nationals who

allege      that    they     were      tortured       and    otherwise      mistreated      by

American civilian and military personnel while detained at Abu

Ghraib. 2          Among    many       other       examples    of    mistreatment,          the

plaintiffs describe having been “repeatedly beaten,” “shot in

the   leg,”     “repeatedly         shot      in    the     head   with    a   taser   gun,”

“subjected to mock execution,” “threatened with unleashed dogs,”

“stripped naked,” “kept in a cage,” “beaten on [the] genitals

with a stick,” “forcibly subjected to sexual acts,” and “forced

to watch” the “rape[] [of] a female detainee.”                            Many of the acts

allegedly were perpetrated “during the night shift” in order to


        2
        The record does not contain any evidence that the
plaintiffs were designated “enemy combatants” by the United
States government. In fact, Defense Department documents in the
record state that plaintiff Al Shimari “is not an Enemy
Combatant in the Global War on Terror.” (Emphasis in original.)


                                                7
“minimize       the   risk   of    detection        by    nonparticipants”       and   to

“soften up” the detainees for later interrogation.

     The    plaintiffs       allege      that      CACI     employees    “instigated,

directed,       participated      in,    encouraged,       and   aided   and    abetted

conduct    towards       detainees      that      clearly    violated     the    Geneva

Conventions, the Army Field Manual, and the laws of the United

States.”        In    particular,       the    plaintiffs     allege     that    in    the

“command vacuum at Abu Ghraib,” CACI interrogators operated with

“little to no supervision” and were perceived as superiors by

United States military personnel.                   Military personnel allegedly

carried out orders issued by the CACI civilian interrogators to

“soften up” and “set conditions” for the abuse of particular

detainees, contrary to the terms of CACI’s contract with the

United States government.

     In that contract, which was executed in August 2003, CACI

agreed     to     provide      interrogation-related             services       to     the

military.         This    contract       was      not    awarded   by    the    Defense

Department or military sources, but by the Department of the

Interior (Interior Department).                   The contract, which was issued

by   an    Interior      Department       contracting        officer     in     Arizona,

authorized CACI to collect payments in excess of $19 million by

mailing invoices to Interior Department accounting offices in

Colorado.



                                              8
       Under the terms of the Statement of Work (SOW) governing

CACI’s    contract        with     the      government,            CACI     was      obligated      to

supply interrogation “management and support” and to “function[]

as     resident          experts”          in     interrogation                regulations          and

procedures.              The     SOW       stated           that     CACI       would       “provide

Interrogation            Support        Cells,           as        directed          by     military

authority, . . . to assist, supervise, coordinate, and monitor

all    aspects      of    interrogation            activities.”                The    SOW    further

specified that “[t]he Contractor is responsible for providing

supervision for all contractor personnel.”

       The   plaintiffs         allege          that    during      CACI’s        performance        of

this     contract,         CACI’s          managers          failed       to      hire      suitable

interrogators, insufficiently supervised CACI employees, ignored

reports of abuse, and attempted to “cover up” the misconduct.

The plaintiffs further allege that CACI’s site manager at the

Abu    Ghraib      prison,       Daniel         Porvaznik,          reviewed         interrogation

reports      that    “raised       concerns            of     potential        abuse”       by     CACI

employees, established “daily contact with CACI [] in the United

States,”     and    submitted          reports         that     were      reviewed         weekly   by

CACI’s    executive        team       in    the        United      States       “to       assess    the

company’s overall worldwide business situation.”                                  The plaintiffs

also     claim      that       CACI        vice-president            Chuck        Mudd      traveled

“regularly” to Iraq to become familiar with the interrogation

operation at Abu Ghraib.

                                                  9
     In addition, the plaintiffs allege that, despite troubling

reports    from      CACI   employees,          CACI    management      failed     to

investigate     or     to   report        accusations      of    wrongdoing      and

repeatedly denied that any CACI employees had engaged in abusive

conduct.      Also,    according     to    the    complaint,     CACI   management




     The present litigation began with a civil action filed in

June 2008 by plaintiff Suhail Najim Abdullah Al Shimari (Al

Shimari) against CACI, CACI International, former CACI employee

Timothy    Dugan,     and   L-3    Services,       Inc.,    another      government

contractor.        The action originally was filed in the Southern

District of Ohio, where defendant Timothy Dugan resided.                    In the

complaint,    Al     Shimari   alleged         claims   under    the    Alien    Tort

Statute (ATS), 28 U.S.C. § 1350, including claims of war crimes,

torture,      and     cruel,      inhuman,         or    degrading        treatment

(collectively, the ATS claims).                 The complaint also contained

numerous   common     law   claims,   including         claims   of    assault   and

battery, sexual assault and battery, intentional and negligent

infliction    of     emotional    distress,       and    negligent      hiring   and

training (collectively, the common law tort claims).

     In August 2008, Al Shimari’s action was transferred to the

Eastern District of Virginia, where the corporate headquarters

                                          10
of    CACI   and   CACI     International           are   located.          The    following

month, Al Shimari submitted an amended complaint that included

the    similar     claims     of    three       other     plaintiffs,       namely,         Taha

Yaseen Arraq Rashid, Salah Hasan Nusaif Al-Ejaili, and Asa’ad

Hamza Hanfoosh Al-Zuba’e 3 (collectively, the Rashid plaintiffs).

The amended complaint also identified the names of three CACI

employees who allegedly “directed and caused some of the most

egregious [acts of] torture and abuse at Abu Ghraib,” which

information        was     based         on     post-conviction          testimony           and

statements given by military personnel who had been prosecuted

for their misconduct.

       In    October      2008,    the        defendants      moved    to     dismiss        the

amended complaint on numerous grounds, including the political

question      doctrine,      federal          preemption,       derivative         sovereign

immunity, and lack of subject matter jurisdiction under the ATS.

The district court denied the defendants’ motion and held that

the    plaintiffs’        allegations           did     not    present        a    political

question.          However,        the    court       concluded        that       it   lacked

jurisdiction       over    the     plaintiffs’        ATS     claims    because        of   the

novelty      of   asserting       such    claims      against    private          parties    as

       3
       We note that various spellings of the name of one of the
plaintiffs, Asa’ad Hamza Hanfoosh Al-Zuba’e, appear in documents
filed with the district court and in the parties’ appellate
briefs. For the purposes of this opinion, we adopt the spelling
that appears on the face of the plaintiffs’ third amended
complaint and in the plaintiffs’ opening brief.


                                               11
opposed to state actors, and indicated that those claims could

only proceed under diversity or federal question jurisdiction

rather than under the ATS.               CACI filed an interlocutory appeal

of the district court’s decision.

       On   appeal,     a     panel    of     this     Court      concluded     that   the

district court erred in permitting the plaintiffs’ claims to

proceed because they were preempted by federal law under the

Supreme Court’s reasoning in Boyle v. United Technologies Corp.,

487 U.S. 500 (1988).            Al Shimari v. CACI Int’l, Inc., 658 F.3d

413 (4th Cir. 2011), vacated, 679 F.3d 205 (4th Cir. 2012) (en

banc).       However, after granting the plaintiffs’ petition for

rehearing en banc, this Court vacated the panel’s decision and

dismissed the defendants’ interlocutory appeal.                         See Al Shimari

v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc).

       Our en banc decision was based on the conclusion that we

lacked      appellate       jurisdiction        because      the     district     court’s

rulings were not appealable under the collateral order doctrine

articulated      by     the    Supreme        Court     in     Cohen    v.    Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949).                        See Al Shimari, 679

F.3d at 212-13.             We observed that a denial of a motion to

dismiss on political question grounds does not itself constitute

an immediately appealable collateral order.                          Id. at 215.       We

also     explained      that    we     were        unable    to    exercise     “pendent”

appellate      jurisdiction           because        there     was     no     independent

                                              12
jurisdictional          basis      for   the    appeal.           See    id.     at    210,      224

(rejecting existence of an independent basis for jurisdiction by

virtue    of    the     defendants        asserting         the    “law-of-war            defense”

under    Coleman       v.    Tennessee,        97    U.S.    509    (1878),         and    Dow    v.

Johnson,       100    U.S.    158    (1879);         preemption         by    the     “combatant

activities”          exception      to    the       Federal       Tort       Claims       Act,    as

recognized by Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009);

or     absolute       official       immunity         under       Mangold        v.       Analytic

Services, Inc., 77 F.3d 1442 (4th Cir. 1996)).

        The case was returned to the district court, which entered

a number of orders that are relevant to this appeal.                                  First, the

district court reinstated the plaintiffs’ ATS claims, observing

that    “a   growing        body    of    law . . . suggests              that      plaintiffs’

claims . . . are within the purview of international law.”                                       The

court dismissed some of the plaintiffs’ claims as insufficiently

pleaded, but permitted the plaintiffs to amend their pleadings

to   allege     a     conspiracy         between      CACI    and       the    United       States

military.         The       court   also    dismissed         the       Rashid      plaintiffs’

common law tort claims with prejudice, concluding that Virginia

law applied to the common law claims and that those claims were

barred by the applicable statute of limitations and by a recent

decision of the Supreme Court of Virginia holding that equitable

tolling was unavailable under Virginia law.



                                                13
       The plaintiffs filed a third amended complaint against CACI

only, which contained all four plaintiffs’ ATS claims and only

plaintiff Al Shimari’s common law tort claims.                     The deadline for

discovery     in    the    case   expired       in    April   2013.     However,        the

record reflects that only a limited amount of information was

obtained during discovery.              Three of the four plaintiffs did not

give deposition testimony in the case.                        Also, no depositions

appear   to       have   been   taken    of     any   individuals     who      served    as

former      interrogators         at     Abu       Ghraib,    including        the    CACI

interrogators who were identified specifically by the plaintiffs

as participants in the alleged abuse.

       Within weeks of the close of discovery, the Supreme Court

issued its decision in Kiobel v. Royal Dutch Petroleum Co., 133

S. Ct. 1659 (2013).             In the majority opinion in that case, the

Court discussed limitations on the scope of ATS jurisdiction

imposed by a canon of statutory interpretation known as the

presumption against extraterritorial application.                       Id.     Based on

the decision in Kiobel, the district court dismissed all four

plaintiffs’ ATS claims, concluding that the court “lack[ed] ATS

jurisdiction        over   Plaintiffs’         claims   because   the     acts       giving

rise   to     their      tort   claims    occurred       exclusively      in    Iraq,     a

foreign sovereign.”

       The district court also dismissed Al Shimari’s remaining

common      law    tort    claims,      holding       that    governing       Iraqi     law

                                              14
promulgated     by   the   Coalition         Provisional    Authority       (CPA) 4

precluded imposition of liability on the defendants, and awarded

CACI $13,731.61 in costs as the prevailing party in the civil

action.     The plaintiffs timely appealed the district court’s

entry of final judgment with respect to all four plaintiffs’ ATS

and common law claims, as well as the district court’s taxation

of costs against the plaintiffs.



                                       II.

     We    address   CACI’s    two   challenges     to    our   subject   matter

jurisdiction.        Because     the    district        court   dismissed      the

plaintiffs’ claims under the ATS for lack of jurisdiction, we

first consider the jurisdictional scope of the ATS and whether

the plaintiffs’ ATS claims fall within the reach of the statute.

Based on our conclusion that the plaintiffs’ ATS claims are

within the statute’s reach, we also address whether those claims

or   the    plaintiffs’       common    law      tort     claims    raise      any

nonjusticiable political questions.




     4
       The CPA was a temporary governing body that was created by
U.S. Army General Tommy Franks, the Commander of Coalition
Forces, and recognized by a United Nations Security Council
resolution.    See, e.g., U.S. ex rel. DRC, Inc. v. Custer
Battles, LLC, 562 F.3d 295, 297 (4th Cir. 2009).         The CPA
governed Iraq from May 2003 to June 2004, when governing
authority passed to the Interim Government of Iraq. Id. at 298.


                                       15
                                             A.

       The plaintiffs seek to impose liability on CACI for alleged

violations of international law, including torture.                      They assert

that the claimed violations fall within the jurisdictional scope

of the ATS, which provides that “[t]he district courts shall

have original jurisdiction of any civil action by an alien for a

tort only, committed in violation of the law of nations or a

treaty of the United States.”                28 U.S.C. § 1350.       The ATS, which

was    created      as    part   of    the   Judiciary    Act   of     1789,   enables

federal courts to consider a limited category of claims that are

defined by the law of nations.                     Sosa v. Alvarez-Machain, 542

U.S. 692, 712, 724-25 (2004).

       The international law violations that may be asserted under

the    ATS   must    be    sufficiently       definite    in    their    content     and

acceptance among civilized nations that they reflect “historical

paradigms”     that       were   familiar     at   the   time   that    the    ATS   was

enacted.      Id. at 732.             Paradigmatic violations of the law of

nations that were “probably on [the] minds” of the drafters of

the ATS include “violation of safe conducts, infringement of the

rights of ambassadors, and piracy.”                 Id. at 715; see also id. at

720.    The Supreme Court also has suggested that the prohibition

against torture exemplifies a norm that is “specific, universal,

and obligatory.”          Kiobel, 133 S. Ct. at 1665 (citation omitted);

see also Filartiga v. Pena-Irala, 630 F.2d 876, 884-87 (2d Cir.

                                             16
1980) (holding that “official torture is now prohibited by the

law   of   nations”       and      that        federal       courts     may    exercise

jurisdiction     under      the     ATS        concerning      such     international

violations).     Indeed, in the present case, the district court

held that the plaintiffs’ ATS claims for torture, war crimes,

and cruel, inhuman, or degrading treatment alleged sufficiently

definite and universal violations of international law.

      We emphasize, however, that we do not have before us the

question   whether    the       plaintiffs          sufficiently      have    stated   or

established     claims      under        the    ATS      alleging      violations      of

international    law. 5      Instead,          we    address   our    subject    matter

jurisdiction    under     the     ATS,    and       decide   whether    the    district

court erred in holding that the ATS does not provide a cause of

action for tortious conduct occurring outside the United States.

      We begin by observing that the ATS is a jurisdictional

statute that addresses “the power of the courts to entertain

cases concerned with a certain subject,” and does not authorize

the courts to “mold substantive law.”                   Sosa, 542 U.S. at 713-14;

see also id. at 712 (stating that “the statute is in terms only

jurisdictional”); id. at 717 (comparing the ATS to other grants

of original jurisdiction in the Constitution and the Judiciary

      5
       We also do not have before us the question whether a
corporation can be held liable for the tortious conduct of its
employees constituting international law violations under the
ATS.


                                           17
Act     of    1789);     id.    at    724     (stating         that    the    ATS     “is     a

jurisdictional         statute       creating      no    new    causes       of   action”).

Thus, the ATS confers jurisdiction on the district courts to

consider certain types of tort claims asserted by aliens based

on alleged violations of the law of nations, but does not create

any particular causes of action.                        See Kiobel, 133 S. Ct. at

1663; Sosa, 542 U.S. at 712.

        In Kiobel, the Supreme Court considered “whether a claim

[brought       under    the    ATS]    may    reach      conduct      occurring     in      the

territory of a foreign sovereign.”                  133 S. Ct. at 1664.             In that

case,       Nigerian    nationals      (the    petitioners),          who    became    legal

residents of the United States after being granted political

asylum,       brought    tort    claims       under      the    ATS    against      certain

British, Dutch, and Nigerian corporations.                       Id. at 1662-63.            In

their complaint, the petitioners contended that the corporate

defendants violated the law of nations by aiding and abetting

atrocities committed by Nigerian military and police forces, 6 in

providing those forces with food, transportation, compensation,

and access to property.              Id. at 1662-63.

        All the atrocities were alleged to have been committed in

Nigeria, and it was undisputed that none of the conduct alleged

        6
       The petitioners alleged that Nigerian police and military
forces were responsible for “beating, raping, killing, and
arresting residents and destroying or looting property.”
Kiobel, 133 S. Ct. at 1662.


                                              18
in the complaint occurred within the territory of the United

States.     Id. at 1662-63.           Moreover, none of the defendants had

engaged in any activities in the United States that appeared

relevant to the claimed tortious acts that occurred in Nigeria.

The ATS claims’ only connections to the territory of the United

States consisted of the foreign corporate defendants’ listings

on the New York Stock Exchange and their affiliation with a

public relations office in New York City.                 Id. at 1677 (Breyer,

J., concurring in the judgment).

        The Supreme Court held that the petitioners’ ATS claims

were barred.          Id. at 1669 (majority opinion).             In reaching this

conclusion,       the    Court     primarily     relied      on    the    principles

underlying       an    established    canon     of   statutory     interpretation,

which raises a presumption against extraterritorial application

of   acts   of    Congress    (“the       presumption,”   or      “the   presumption

against     extraterritorial       application”).         See     id.    at    1664-65,

1669.     The presumption reflects the “longstanding principle of

American law that legislation of Congress, unless a contrary

intent appears, is meant to apply only within the territorial

jurisdiction of the United States” because “Congress ordinarily

legislates       with    respect     to    domestic,   not      foreign       matters.”

Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010)

(citations and internal quotation marks omitted).



                                           19
        The Supreme Court explained that the principles underlying

the presumption restrain courts in their consideration of causes

of action that may be brought under the ATS.                     Kiobel, 133 S. Ct.

at 1664.       Those principles reflect “foreign policy concerns”

arising from potential “unintended clashes between our laws and

those    of   other    nations     which       could    result     in   international

discord,”     and     from       “the     danger       of   unwarranted        judicial

interference in the conduct of foreign policy.”                         Id. (citation

omitted).

        Under the presumption, “[w]hen a statute gives no clear

indication of an extraterritorial application, it has none[.]”

Id. (quoting Morrison, 561 U.S. at 255).                     After considering the

text of the ATS, the Court held in Kiobel that nothing in the

statutory language provided a clear indication that the statute

was intended to have extraterritorial reach.                     Id. at 1669.        The

Court      concluded       that     although           “Congress,       even    in     a

jurisdictional provision, can indicate that it intends federal

law to apply to conduct occurring abroad,” Congress failed to do

so when it enacted the ATS.                    Id. at 1665.         Thereafter, the

Supreme Court held that the “petitioners’ case seeking relief

for   violations      of   the    law     of    nations     occurring     outside    the

United States is barred.”           Id. at 1669.

        Crucially,    however,      the    Court       explained    its   holding     by

stating that “[o]n these facts, all the relevant conduct took

                                           20
place outside the United States.”          Id.      The Court elaborated

that “even where the claims touch and concern the territory of

the United States, they must do so with sufficient force to

displace the presumption against extraterritorial application.”

Id.   And, in a reference to the fact that the petitioners had

not alleged any connection with the territory of the United

States other than the physical presence of the foreign corporate

defendants, the Court explained that “[c]orporations are often

present in many countries, and it would reach too far to say

that mere corporate presence suffices.”       Id.

      We observe that the Supreme Court used the phrase “relevant

conduct” to frame its “touch and concern” inquiry, but never

defined that term.    Under the facts presented, there was no need

to do so because all the conduct underlying the petitioners’

claims occurred outside United States territory.              We also note

that the Court broadly stated that the “claims,” rather than the

alleged tortious conduct, must touch and concern United States

territory   with   sufficient   force,   suggesting    that   courts   must

consider all the facts that give rise to ATS claims, including

the parties’ identities and their relationship to the causes of

action.     Id.; see, e.g., Black’s Law Dictionary 281 (9th ed.

2009) (defining “claim” as the “aggregate of operative facts

giving rise to a right enforceable by a court”).



                                   21
      The   Court’s    choice   of    such       broad    terminology      was    not

happenstance,    as    illustrated     by       the    opinions    of    concurring

Justices who offered alternative views.                   For example, Justice

Alito, in a concurring opinion in which Justice Thomas joined,

advocated a “broader” view of the presumption’s effect on ATS

jurisdiction, which would bar an ATS action “unless the domestic

conduct is sufficient to violate an international law norm” that

is sufficiently definite and accepted among civilized nations.

Kiobel, 133 S. Ct. at 1670 (Alito, J., concurring).                       Under the

standard proposed by Justice Alito, courts could consider only

the   domestic   tortious    conduct       of    the     defendants.       Such    an

analysis is far more circumscribed than the majority opinion’s

requirement that “the claims touch and concern the territory of

the United States . . . with sufficient force to displace the

presumption against extraterritorial application.”                      Id. at 1669

(majority opinion).

      The “touch and concern” language set forth in the majority

opinion     contemplates    that     courts       will     apply   a     fact-based

analysis to determine whether particular ATS claims displace the

presumption against extraterritorial application.                  In an opinion

concurring in the judgment, Justice Breyer, with whom Justice

Ginsburg,    Justice   Sotomayor,     and       Justice    Kagan   joined,       would

have allowed jurisdiction whenever: “(1) the alleged tort occurs

on American soil, (2) the defendant is an American national, or

                                      22
(3) the defendant’s conduct substantially and adversely affects

an important American national interest.”                     Id. at 1674 (Breyer,

J.,   concurring      in   the    judgment).           And,    as     Justice    Kennedy

observed in his concurring opinion, the Supreme Court evidently

left unanswered “significant questions regarding the reach and

interpretation of the Alien Tort Statute” that “may require some

further     elaboration           and     explanation”          of      the      “proper

implementation”       of    the    presumption         in     cases    that     are    not

“covered . . . by the reasoning and holding of [Kiobel].”                              Id.

at 1669 (Kennedy, J., concurring).

       In the present case, the plaintiffs argue that based on

Kiobel, the ATS provides jurisdiction for claims that “touch and

concern”    United     States      territory       with     “sufficient       force     to

displace” the presumption.               See id. (majority opinion).                   The

plaintiffs contend that their claims’ substantial connections to

United States territory are sufficient to rebut the presumption.

       In response, the defendants argue that, under the decision

in    Kiobel,   the   ATS    does       not    under   any     circumstances          reach

tortious conduct occurring abroad.                 The defendants maintain that

the sole material consideration before us is the fact that the

plaintiffs’     claims      allege      extraterritorial         tortious       conduct,

which subjects their claims to the same fatal outcome as those

in Kiobel.      We disagree with the defendants’ argument, which



                                              23
essentially advances the view expressed by Justices Alito and

Thomas in their separate opinion in Kiobel.

      Because five justices, including Justice Kennedy, joined in

the    majority’s       rationale       applying     the        presumption       against

extraterritorial        application,      the     presumption       is    part    of   the

calculus that we apply here.              However, the clear implication of

the Court’s “touch and concern” language is that courts should

not assume that the presumption categorically bars cases that

manifest a close connection to United States territory.                             Under

the   “touch    and     concern”     language,      a    fact-based       analysis     is

required in such cases to determine whether courts may exercise

jurisdiction         over   certain      ATS    claims.           Accordingly,         the

presumption      against         extraterritorial         application        bars      the

exercise of subject matter jurisdiction over the plaintiffs’ ATS

claims      unless    the   “relevant     conduct”       alleged     in     the   claims

“touch[es] and concern[s] the territory of the United States

with sufficient force to displace the presumption . . . .”                             133

S. Ct. at 1669.

      In Kiobel, the Court’s observation that all the “relevant

conduct”      occurred      abroad      reflected       those     claims’       extremely

attenuated connection to United States territory, which amounted

to “mere corporate presence.”               Indeed, the only facts relating

to    the    territory      of    the    United     States       were     the     foreign

corporations’ public relations office in New York City and their

                                           24
listings       on    the      New    York     Stock        Exchange.         Because    the

petitioners in Kiobel were unable to point to any “relevant

conduct” in their claims that occurred in the territory of the

United States, the presumption was conclusive when applied to

the facts presented.

       In the present case, however, the issue is not as easily

resolved.        The plaintiffs’ claims reflect extensive “relevant

conduct” in United States territory, in contrast to the “mere

presence” of foreign corporations that was deemed insufficient

in Kiobel.          When a claim’s substantial ties to United States

territory include the performance of a contract executed by a

United States corporation with the United States government, a

more   nuanced       analysis        is    required    to     determine      whether    the

presumption         has   been      displaced.        In    such    cases,    it   is   not

sufficient merely to say that because the actual injuries were

inflicted abroad, the claims do not touch and concern United

States territory.

       Here,     the      plaintiffs’        claims        allege    acts     of   torture

committed by United States citizens who were employed by an

American    corporation,            CACI,    which    has     corporate      headquarters

located    in       Fairfax      County,     Virginia.         The     alleged     torture

occurred    at       a    military        facility    operated      by   United     States

government personnel.



                                              25
       In addition, the employees who allegedly participated in

the acts of torture were hired by CACI in the United States to

fulfill the terms of a contract that CACI executed with the

United States Department of the Interior.                  The contract between

CACI   and    the    Department     of    the     Interior      was   issued     by   a

government office in Arizona, and CACI was authorized to collect

payments by mailing invoices to government accounting offices in

Colorado.        Under the terms of the contract, CACI interrogators

were   required     to   obtain   security       clearances      from   the    United

States Department of Defense.

       Finally, the allegations are not confined to the assertion

that CACI’s employees participated directly in acts of torture

committed at the Abu Ghraib prison.                The plaintiffs also allege

that CACI’s managers located in the United States were aware of

reports     of    misconduct    abroad,        attempted   to    “cover    up”    the

misconduct, and “implicitly, if not expressly, encouraged” it.

       These ties to the territory of the United States are far

greater than those considered recently by the Second Circuit in

Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013).                         In that

case, the Second Circuit declined to extend ATS jurisdiction to

claims involving foreign conduct by South African subsidiaries

of American corporations.          See id. at 189-94.           The plaintiffs in

Balintulo    alleged     that     those    corporations       “s[old]     cars    and

computers to the South African government, thus facilitating the

                                          26
apartheid     regime’s         innumerable         race-based      depredations        and

injustices,       including           rape,        torture,     and      extrajudicial

killings.”      Id. at 179-80.              Interpreting the holding of Kiobel

to stand for the proposition that “claims under the ATS cannot

be brought for violations of the law of nations occurring within

the territory of a sovereign other than the United States,” id.

at 189 (citing Kiobel, 133 S. Ct. at 1662, 1668-69), the Second

Circuit construed the Court’s “touch and concern” language as

impacting the exercise of jurisdiction only “when some of the

relevant    conduct      occurs       in    the    United   States.”      Id.    at    191

(footnote omitted) (emphasis in original); see also Chowdhury v.

Worldtel Bangl. Holding, Ltd., 746 F.3d 42, 45-46, 49-50 (2d

Cir. 2014) (applying Kiobel to foreclose jurisdiction over ATS

claims    filed     by    a    Bangladeshi         plaintiff    who    allegedly       was

detained and tortured by the Bangladesh National Police at the

direction of his Bangladeshi business partner).

      Although the “touch and concern” language in Kiobel may be

explained in greater detail in future Supreme Court decisions,

we   conclude     that    this       language      provides    current    guidance     to

federal    courts     when      ATS    claims      involve     substantial      ties   to

United States territory.              We have such a case before us now, and

we   cannot   decline         to     consider      the   Supreme   Court’s      guidance

simply    because    it       does    not   state    a   precise   formula      for    our

analysis.

                                              27
        Applying this guidance, we conclude that the ATS claims’

connection to the territory of the United States and CACI’s

relevant conduct in the United States require a different result

than that reached in Kiobel.                  In its decision in Morrison, the

Supreme Court emphasized that although the presumption is no

“timid sentinel,” its proper application “often[] is not self-

evidently       dispositive”     and     “requires        further    analysis.”        561

U.S. at 266.           We have undertaken that analysis here, employing

the   “touch      and      concern”     inquiry     articulated        in    Kiobel,   by

considering a broader range of facts than the location where the

plaintiffs actually sustained their injuries.

        Indeed,       we     observe      that      mechanically        applying       the

presumption       to    bar    these    ATS    claims      would     not    advance    the

purposes of the presumption.              A basic premise of the presumption

against     extraterritorial           application        is    that   United      States

courts must be wary of “international discord” resulting from

“unintended        clashes      between       our   laws       and   those    of     other

nations.”        Kiobel, 133 S. Ct. at 1664 (citation omitted).                         In

the present case, however, the plaintiffs seek to enforce the

customary       law     of    nations     through     a     jurisdictional         vehicle

provided under United States law, the ATS, rather than a federal

statute that itself details conduct to be regulated or enforced.

Thus,     any     substantive     norm     enforced        through     an    ATS    claim

necessarily is recognized by other nations as being actionable.

                                            28
Moreover,    this   case   does    not     present     any    potential     problems

associated with bringing foreign nationals into United States

courts to answer for conduct committed abroad, given that the

defendants are United States citizens.                   Cf. Sexual Minorities

Uganda v. Lively, 960 F. Supp. 2d 304, 322-24 (D. Mass. 2013)

(holding that Kiobel did not bar ATS claims against an American

citizen, in part because “[t]his is not a case where a foreign

national is being hailed into an unfamiliar court to defend

himself”).

     We    likewise   note    that    further        litigation      of   these   ATS

claims will not require “unwarranted judicial interference in

the conduct of foreign policy.”                Kiobel, 133 S. Ct. at 1664.

The political branches already have indicated that the United

States will not tolerate acts of torture, whether committed by

United States citizens or by foreign nationals.

     The plaintiffs do not appear to have access to federal

courts under the Torture Victim Protection Act of 1991 (TVPA),

presumably because they did not suffer injury “under actual or

apparent     authority,      or    color        of    law,      of    any     foreign

nation . . . .”       Pub.    L.     No.      102-256,    106    Stat.      73,   note

following 28 U.S.C. § 1350 (emphasis added).                    Nevertheless, the

TVPA’s    broad   prohibition      against      torture      reflects     Congress’s

recognition of a “distinct interest in preventing the United

States from becoming a safe harbor (free of civil as well as

                                         29
criminal liability) for a torturer or other common enemy of

mankind.”          Kiobel, 133 S. Ct. at 1671 (Breyer, J., concurring in

the judgment).              This conclusion is reinforced by the fact that

Congress          has     authorized          the    imposition       of        severe      criminal

penalties          for     acts    of        torture      committed        by     United     States

nationals abroad.                 See 18 U.S.C. § 2340A.                    The Supreme Court

certainly was aware of these civil and criminal statutes when it

articulated its “touch and concern” language in Kiobel. 7                                        See

Kiobel, 133 S. Ct. at 1669 (Kennedy, J., concurring) (predicting

that        “[o]ther       cases       may    arise       with     allegations         of   serious

violations of international law principles protecting persons”

that are “covered neither by the TVPA nor by the reasoning and

holding of today’s case”).

        We    conclude          that    the    plaintiffs’         ATS   claims        “touch    and

concern”          the    territory       of    the       United    States       with     sufficient

force        to    displace        the       presumption          against       extraterritorial

application             based    on:    (1)    CACI’s       status    as     a    United      States

        7
       We also note that ATS jurisdiction is not precluded by the
fact that the alleged conduct occurred while the plaintiffs in
this case were detained in the custody of the United States
military.   In Rasul v. Bush, the Supreme Court considered this
issue with regard to detainees at Guantanamo Bay, Cuba, where
the United States maintains a Naval Base under a treaty and a
long-term lease with the government of Cuba. See 542 U.S. 466,
471 (2004).     There, briefly addressing the jurisdiction of
federal courts to consider the petitioners’ ATS claims, the
Court stated that “nothing . . . categorically excludes aliens
detained in military custody outside the United States from
[asserting an ATS claim] in U.S. courts.” Id. at 484.


                                                    30
corporation;       (2)    the   United    States   citizenship     of   CACI’s

employees, upon whose conduct the ATS claims are based; (3) the

facts in the record showing that CACI’s contract to perform

interrogation services in Iraq was issued in the United States

by the United States Department of the Interior, and that the

contract required CACI’s employees to obtain security clearances

from       the   United   States    Department     of   Defense;    (4)    the

allegations that CACI’s managers in the United States gave tacit

approval to the acts of torture committed by CACI employees at

the Abu Ghraib prison, attempted to “cover up” the misconduct,

and “implicitly, if not expressly, encouraged” it; and (5) the

expressed intent of Congress, through enactment of the TVPA and

18 U.S.C. § 2340A, to provide aliens access to United States

courts and to hold citizens of the United States accountable for

acts of torture committed abroad. 8           Accordingly, we hold that the

district court erred in concluding that it lacked subject matter

jurisdiction under the ATS, and we vacate the district court’s

judgment dismissing the plaintiffs’ ATS claims on that basis.



       8
       Because of our holding that the plaintiffs’ ATS claims
“touch and concern” the territory of the United States with
sufficient   force   to    displace  the   presumption   against
extraterritorial   application,   we  need   not   address   the
plaintiffs’ alternative argument that the relevant conduct did
not occur within the territory of a foreign sovereign because
the Abu Ghraib prison constituted the “de facto territory” of
the United States.


                                         31
                                              B.

        Our decision regarding the ATS answers only the first issue

of subject matter jurisdiction presented in this appeal.                                   We

also    must    consider      whether     the       record      before    us    adequately

supports a finding that litigation of the plaintiffs’ ATS claims

and common law tort claims will avoid any “political questions”

that would place those claims outside the jurisdiction of the

federal courts.

        The    political    question        doctrine       is    a   “function        of   the

separation of powers,” and prevents federal courts from deciding

issues that the Constitution assigns to the political branches,

or that the judiciary is ill-equipped to address.                                 Baker v.

Carr,    369    U.S.   186,     217   (1982);        see   also      Tiffany     v.   United

States, 931 F.2d 271, 276 (4th Cir. 1991) (stating that the

constitutional separation of powers “requires that we examine

the     relationship       between      the        judiciary     and     the     coordinate

branches of the federal government cognizant of the limits upon

judicial power”).           The Supreme Court has defined a political

question by reference to whether a case presents any of the

following        attributes:          (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

                                              32
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.

       In    considering       these      issues       when    a    defendant        challenges

subject       matter       jurisdiction             under    Federal      Rule        of     Civil

Procedure      12(b)(1),       a    court       may     evaluate       the     pleadings       as

evidence on the issue and may consider other evidence in the

record “without converting the proceeding to one for summary

judgment.”          Velasco v. Gov’t of Indon., 370 F.3d 392, 398 (4th

Cir.        2004)     (citation          omitted).                 “However,         when      the

jurisdictional         facts      are    inextricably          intertwined       with       those

central to the merits, the district court should resolve the

relevant factual disputes only after appropriate discovery.”                                   In

re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 334 (4th Cir. 2014)

(hereinafter Burn Pit) (quoting Kerns v. United States, 585 F.3d

187, 193 (4th Cir. 2009) (brackets and internal quotation marks

omitted)).

       We     first    observe          that        CACI’s    position       asserting        the

presence of a political question was resolved by the district

court in the plaintiffs’ favor much earlier in this litigation.

                                                33
In March 2009, before any discovery had been conducted, CACI

challenged the court’s subject matter jurisdiction on political

question grounds, based on the allegations in the complaint.

     At that time, the district court analyzed the six factors

set forth by the Supreme Court in Baker solely by reference to

the plaintiffs’ complaint, and rejected CACI’s jurisdictional

challenge.        The   court    concluded          that     the    case     was   not

“constitutionally committed” to the executive branch because the

case “challenges not the government itself or the adequacy of

official   government     policies,      but    the      conduct      of    government

contractors carrying on a business for profit.”                    Next, the court

found that in view of the allegations of a conspiracy between

“low-level contractors and military personnel,” the court “could

analyze    this     low-level    conspiracy”        without        questioning     the

interrogation       policies     authorized         by     “top       military     and

government officials.”

     The     district   court    further       concluded       that        there   were

“judicially       discoverable     and         manageable          standards”      for

evaluating    the    plaintiffs’    claims,         citing    other        “extensive”

litigation    regarding    the    events       at    Abu     Ghraib    prison,     the

availability of eyewitness testimony based on courts martial of

military personnel, and the limited nature of any classified

discovery material.       The court stated that “manageable judicial

standards are readily accessible through the discovery process,”

                                      34
and that the court “suspect[ed] that the contract [between CACI

and     the     government]       details         CACI’s     responsibilities          in

conducting the interrogations, outlines the applicable laws and

rules    that     CACI    personnel       are    bound     by,     and   sets     further

restrictions on the type of conduct permitted.”

        The district court also noted that the process of reviewing

CACI’s conduct would not demonstrate a “lack of respect” for the

political branches, because “matters are not beyond the reach of

the judiciary simply because they touch upon war or foreign

affairs.”        The     court   found     that    the     case    could    be    decided

without    the     need    for   policy    determinations          clearly      requiring

“nonjudicial discretion,” see Baker, 369 U.S. at 217, stating

that “the policy determination central to this case has already

been made; this country does not condone torture, especially

when committed by its citizens.”                  Finally, the court concluded

that consideration of the other Baker factors did not render the

case nonjusticiable, and held that the case did not present a

political question barring the exercise of its subject matter

jurisdiction.

        Although    CACI    appealed       the    district        court’s    ruling    on

numerous bases, including justiciability, our conclusion that we

lacked    jurisdiction       over    the    interlocutory          appeal    under    the

collateral       order    doctrine    returned      the     case    to   the     district

court without a decision whether the case presented a political

                                           35
question.          See Al Shimari, 679 F.3d at 224.               On remand, the

district court dismissed the plaintiffs’ ATS claims for lack of

jurisdiction under Kiobel, and also dismissed the plaintiffs’

remaining common law tort claims under Federal Rule of Civil

Procedure 12(b)(6).

        In     this    appeal,    CACI     renews     its   political      question

challenge, contending that the treatment and interrogation of

detainees during war is a key component of national defense

considerations that are committed to the political branches of

government.           CACI also asserts that there are no judicially

discoverable standards for deciding intentional tort claims in

the context of a war zone, and that CACI interrogators were

performing a “common mission” with the military and were acting

under        direct   military    command       and   control.      CACI   further

maintains that most of the alleged forms of abuse at issue “were

approved by the Secretary of Defense and incorporated into rules

of engagement by military commanders at Abu Ghraib.”

        CACI’s arguments are based on constitutional considerations

and factual assertions that are intertwined in many respects.

We begin our consideration of these arguments by recognizing

that “most military decisions” are matters “solely within the

purview of the executive branch,”                Taylor, 658 F.3d at 407 n.9,

and   that      the    Constitution      delegates    authority     over   military

matters       to   both   the    executive      and   legislative    branches    of

                                           36
government.       See Burn Pit, 744 F.3d at 334; Lebron v. Rumsfeld,

670 F.3d 540, 548 (4th Cir. 2012).

        Nevertheless,        the    fact    that        a     military     contractor   was

acting pursuant to “orders of the military does not, in and of

itself, insulate the claim from judicial review.”                             Taylor, 658

F.3d at 411.        Accordingly, before declaring such a case “to be

nonjusticiable,        a     court        must        undertake     ‘a     discriminating

analysis’    that      includes       the       litigation’s        ‘susceptibility     to

judicial handling in the light of its nature and posture in the

specific    case,      and    of    the    possible          consequences     of   judicial

action.’”        Lane v. Halliburton, 529 F.3d 548, 559 (5th Cir.

2008) (quoting Baker, 369 U.S. at 211-12).                            Such an analysis

involves a “delicate exercise in constitutional interpretation.”

Baker, 369 U.S. at 211.

        Importantly, in the present case, more than five years have

elapsed     since      the         district          court     rendered      its    initial

determination of justiciability.                     During the intervening period,

this     Court   has    formulated          a        test    for   considering     whether

litigation involving the actions of certain types of government

contractors       is    justiciable             under        the   political       question

doctrine.    See Taylor, 658 F.3d at 411.

        In our decision in Taylor, we adapted the Supreme Court’s

analysis in Baker to a particular subset of lawsuits, namely,

those     brought      against        government             contractors     who    perform

                                                37
services      for     the    military.              See    Burn       Pit,      744   F.3d    at    334

(observing          that     Taylor         “adapted           Baker       to    the     government

contractor context through a new two-factor test”).                                     The factual

record in Taylor involved a soldier who was performing work on

an    electrical         box      at    a      military         base       in    Iraq,       and    was

electrocuted         when        an    employee           of     a    government         contractor

activated       a     nearby          generator          despite        an      instruction        from

military personnel not to do so.                         Taylor, 658 F.3d at 404.                  When

the soldier sued the military contractor for negligence, the

government          contractor          claimed          that        the     case      presented      a

nonjusticiable political question.                        Id.

       In analyzing the justiciability of the soldier’s negligence

claim,     we       recognized          the     need       to        “carefully         assess      the

relationship” between the military and the contractor, and to

“gauge the degree to which national defense interests may be

implicated in a judicial assessment” of the claim.                                      Id. at 409-

10.      We     distilled        the     six    Baker          factors       into     two    critical

components: (1) whether the government contractor was under the

“plenary” or “direct” control of the military; and (2) 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.”          Id. at 411 (quotation omitted).                             We noted that an

                                                    38
affirmative answer to either of these questions will signal the

presence of a nonjusticiable political question.                        See Burn Pit,

744 F.3d at 335 (stating that under Taylor, a formal “Baker-

style analysis” is not necessary, and that “if a case satisfies

either    factor    [articulated        in    Taylor],       it    is   nonjusticiable

under the political question doctrine”).

     We further explained in Taylor that, in conducting this

two-part inquiry, a court must “‘look beyond the complaint, and

consider how [the plaintiffs] might prove [their] claim[s] and

how [the contractor] would defend.”                    Taylor, 658 F.3d at 409

(quoting   Lane,     529    F.3d   at    565)    (original         brackets   omitted)

(alterations added) (emphasis in original).                        This determination

requires consideration of the facts alleged in the complaint,

facts developed through discovery or otherwise made a part of

the record in the case, and the legal theories on which the

parties will rely to prove their case.

     In    Taylor,    we     stated     that     “if     a    military      contractor

operates    under     the    plenary         control    of        the   military,   the

contractor’s decisions may be considered as de facto military

decisions.”        658 F.3d at 410.             Based on the factual record

presented in that case, we concluded that the military did not

exercise “direct control” over the contractor because the record

showed that responsibility for the manner in which the job was

performed was delegated to the contractor.                          Id. at 411.      In

                                         39
drawing this conclusion, we relied on the parties’ contract,

which recited that “[t]he contractor shall be responsible for

the   safety    of    employees      and    base     camp       residents      during    all

contractor     operations,”        and     that    “the        contractor     shall     have

exclusive      supervisory          authority           and     responsibility          over

employees.”        Id. at 411.

       We contrasted these facts with those reviewed in Carmichael

v. Kellogg, Brown & Root Services, Inc., 572 F.3d 1271, 1275-79

(11th Cir. 2009), a case in which the plaintiff had sued a

military      contractor     for     negligence          resulting      from     injuries

sustained when the plaintiff’s husband, a sergeant in the United

States Army, was thrown from a vehicle in a military convoy that

was driven by the contractor’s employee.                         In deciding whether

the case presented a political question, the Eleventh Circuit

observed that there was no indication in the record that the

contractor     had     any   role    in        making    decisions      regarding        the

movement of the military convoy vehicle.                         Id. at 1282.         Thus,

the court held that the case was nonjusticiable, “[b]ecause the

circumstances        under   which       the     accident       took   place     were     so

thoroughly pervaded by military judgments and decisions, [and]

it    would   be     impossible     to     make    any        determination     regarding

[either    party’s]      negligence        without       bringing      those    essential

military      judgments      and     decisions          under     searching      judicial

scrutiny.”      Id. at 1282-83.          Because the facts in Taylor did not

                                            40
manifest such “direct control” over the contractor’s performance

of its duties, we resolved this factor in the plaintiff’s favor.

658 F.3d at 411.

       Since our decision in Taylor, we have clarified that the

critical issue with respect to the question of “plenary” or

“direct” control is not whether the military “exercised some

level of oversight” over a contractor’s activities.               Burn Pit,

744 F.3d at 339.        Instead, a court must inquire whether the

military clearly “chose how to carry out these tasks,” rather

than giving the contractor discretion to determine the manner in

which the contractual duties would be performed.            Id. (emphasis

added); see also Harris v. Kellogg Brown & Root Servs., Inc.,

724 F.3d 458, 467 (3d Cir. 2013) (stating that plenary control

does not exist when the military “merely provides the contractor

with    general    guidelines    that     can   be    satisfied     at     the

contractor’s      discretion”   because    “contractor     actions       taken

within that discretion do not necessarily implicate unreviewable

military decisions”); McMahon v. Presidential Airways, Inc., 502

F.3d 1331, 1359-61 (11th Cir. 2007) (holding that a contract for

aviation   services    in   Afghanistan   did   not   manifest    sufficient

military control to present a political question because the

contractor retained authority over the type of plane, flight

path, and safety of the flight).



                                    41
       The second Taylor factor concerns whether “a decision on

the merits . . . would require the judiciary to question actual,

sensitive judgments made by the military.”                             Taylor, 658 F.3d at

412    (internal         quotation     marks        omitted).          In     analyzing         this

factor, a court must focus on the manner in which the plaintiffs

might attempt to prove their claims, and how the defendants are

likely       to    defend      against          those    claims.        See    id.        at    409.

Addressing         this    issue      in    Taylor,       we    held    that       a     political

question          was     presented         because        a     military          contractor’s

contributory negligence defense to the plaintiff’s common law

negligence claim “would invariably require the Court to decide

whether the Marines made a reasonable decision in seeking to

install the wiring box,” and would oblige the court to evaluate

the reasonableness of military decisions.                         Id. at 411-12.

       By     contrast,         in     Burn        Pit     we     analyzed          a     military

contractor’s            “proximate         causation”          defense,       in        which     the

contractor maintained that the plaintiffs’ alleged injuries were

caused by military decisions and conduct.                               744 F.3d at 340.

After examining the record that the district court considered,

we    concluded         that    the    contractor’s            causation      defense           would

require       an    examination            of     the    reasonableness            of     military

decisions only if the case ultimately proceeded under the law of

a    state    having       a   proportional-liability              system          that    assigns

liability based on fault.                   Id. at 340-41; see also Harris, 724

                                                  42
F.3d at 463 (holding that the contractor’s assertion that the

military was a proximate cause of the alleged injury did not

present a political question under a joint-and-several liability

regime, and that even if proportional liability applied, the

plaintiffs     could     proceed      on   any    damages      claim    that       did    not

implicate      proportional     liability);        Lane,       529    F.3d    at     565-67

(concluding that the assertion of a causation defense to fraud

and negligence claims did not necessarily implicate a political

question).

      In the present case, however, we do not have a factual

record     developed     by     the    district        court     like     the        records

considered in Taylor and in Burn Pit.                    And, from our review of

the   record    before    us,    we    are    unable     to    determine      whether      a

political question exists at this stage of the litigation. 9

      With respect to the first Taylor factor, the evidence in

the   record     is    inconclusive          regarding     the       extent     to    which

military     personnel        actually        exercised        control        over       CACI

employees in their performance of their interrogation functions.

CACI argues that military control is evidenced by the contract’s

      9
       We also observe that the United States has not sought to
intervene or file an amicus brief with respect to the present
appeal.   We note, however, that during earlier proceedings in
this case, the United States represented that “[t]he Court need
not resolve defendants’ political question arguments at this
stage of the litigation.” Brief for the United States as Amicus
Curiae, Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir.
2012) (en banc) (Nos. 09-1335, 10-1891, 10-1921), at 9.


                                             43
that the abuse was intended to “soften up” the detainees for

later interrogations.

       A    thorough     analysis      of     these      matters,      as    mandated        by

Taylor, cannot be achieved simply by reviewing the plaintiffs’

pleadings      and     the   limited     record         on   appeal,    but       also    will

require factual development of the record by the district court

and possibly additional jurisdictional discovery.                           Therefore, we

will       remand    this    case   to      the    district       court      for        further

consideration        with    respect     to      the    application         of    the    first

Taylor factor of “direct control.”                      See Burn Pit, 744 F.3d at

334 (noting that “when the jurisdictional facts are inextricably

intertwined with those central to the merits, the district court

should       resolve     the    relevant          factual     disputes           only    after

appropriate discovery”).

       We reach a similar conclusion with respect to the second

Taylor factor, because the record does not reveal the defenses

that the defendants intend to employ with regard to the merits

of the plaintiffs’ claims.               Indeed, the district court has not

yet identified the precise elements that the plaintiffs will be

required       to    prove     in   their         ATS    claims     for      the        alleged

international law violations.                  Thus, we are unable to assess

whether a decision on the merits would require the judiciary “to

question actual, sensitive judgments made by the military.”                                 See

Taylor, 658 F.3d at 411 (internal quotation marks omitted).

                                            46
        Although the plaintiffs’ remaining common law tort claims

are premised on familiar causes of action, which the district

court        thoroughly            analyzed        in    its     decision      regarding       the

sufficiency             of    those     claims          under    Federal     Rule     of   Civil

Procedure 12(b)(6), we do not know the degree to which CACI’s

defenses to these claims might implicate any political questions

until the contours of all the plaintiffs’ claims are further

developed.              We therefore refrain from reaching the additional

issues       presented         on    appeal     regarding        whether     the     plaintiffs’

common law claims properly were dismissed under Rule 12(b)(6). 10

        Based          on    the    issues    we    have       identified    that     cannot    be

resolved          on    the    present       record,      we    are   unable    to    perform   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 . . . , and

of the possible consequences of judicial action.”                                    Baker, 369

U.S. at 211-12.                    Accordingly, we vacate the district court’s

dismissal of all four plaintiffs’ common law tort claims, and

instruct the district court to reexamine the justiciability of




        10
        In remanding the plaintiffs’ common law claims for
further proceedings under Federal Rule of Civil Procedure
12(b)(1), we express no opinion regarding the correctness of the
district court’s dismissal of those claims under Federal Rule of
Civil Procedure 12(b)(6).


                                                    47
the ATS claims and the common law tort claims before proceeding

further in the case.



                                   III.

      For these reasons, we vacate the district court’s judgment

and, consequently, the court’s award of costs, and remand all

the   plaintiffs’   claims   for   further   proceedings   in   accordance

with the principles expressed in this opinion.

                                                   VACATED AND REMANDED




                                    48
