                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1831


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

                Plaintiffs - Appellants,

          and

SA’AD HAMZA HANTOOSH AL-ZUBA’E,

                Plaintiff,

          v.

CACI PREMIER TECHNOLOGY, INC.,

                Defendant – Appellee,

          and

TIMOTHY DUGAN; CACI INTERNATIONAL, INC.; L-3 SERVICES, INC.,

                Defendants.

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

PROFESSORS OF CONSTITUTIONAL LAW AND FEDERAL COURTS; JUAN E.
MENDEZ, U.N. SPECIAL RAPPORTEUR ON TORTURE; RETIRED MILITARY
OFFICERS; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMNESTY
INTERNATIONAL, AND HUMAN RIGHTS WATCH; ALBERTO MORA, FORMER
GENERAL COUNSEL, U.S. DEPARTMENT OF THE NAVY; ABUKAR HASSAN
AHMED, DR. JUAN ROMAGOZA ARCE, ZITA CABELLO, AZIZ MOHAMED
DERIA, CARLOS MAURICIO, GLORIA REYES, OSCAR REYES, CECILIA
SANTOS MORAN, ZENAIDA VELASQUEZ, AND BASHE ABDI YOUSUF,

                Amici Supporting Appellants,
PROFESSIONAL SERVICES COUNCIL - THE VOICE OF THE GOVERNMENT
SERVICES INDUSTRY; COALITION FOR GOVERNMENT PROCUREMENT;
KBR, INC.,

                Amici Supporting Appellee.



Appeal 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:   May 12, 2016                 Decided:   October 21, 2016


Before KEENAN, FLOYD, and THACKER, Circuit Judges.


Vacated and remanded by published opinion.    Judge Keenan wrote
the opinion, in which Judge Floyd and Judge Thacker joined.
Judge Floyd wrote a separate concurring opinion.


ARGUED: Baher Azmy, CENTER FOR CONSTITUTIONAL RIGHTS, New York,
New York, for Appellants. John Frederick O’Connor, Jr., STEPTOE
& JOHNSON, LLP, Washington, D.C., for Appellee.        ON BRIEF:
Katherine Gallagher, CENTER FOR CONSTITUTIONAL RIGHTS, New York,
New York; Robert P. LoBue, PATTERSON BELKNAP WEBB & TYLER LLP,
New York, New York; Shereef Hadi Akeel, AKEEL & VALENTINE, P.C.,
Troy,   Michigan;    Jeena   Shah,   CONSTITUTIONAL   RIGHTS    &
INTERNATIONAL HUMAN RIGHTS CLINIC, Newark, New Jersey, for
Appellants.   Stephen I. Vladeck, Washington, D.C.; Charles S.
Barquist, Los Angeles, California, Betre M. Gizaw, MORRISON &
FOERSTER LLP, Washington, D.C., for Amici Professors of
Constitutional Law and Federal Courts.       Eric L. Lewis, A.
Katherine Toomey, James P. Davenport, Waleed Nassar, LEWIS BAACH
PLLC, Washington, D.C.; Melissa Hooper, HUMAN RIGHTS FIRST, New
York, New York, for Amici Retired Military Officers.         Dror
Ladin, Hina Shamsi, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
New York, New York, for Amici American Civil Liberties Union
Foundation, Amnesty International, and Human Rights Watch.
George M. Clarke, III, BAKER & MCKENZIE LLP, Washington, D.C.;
Alberto Mora, Carr Center For Human Rights Policy, HARVARD
KENNEDY SCHOOL, Cambridge, Massachusetts, for Amicus Alberto
Mora. William J. Aceves, CALIFORNIA WESTERN SCHOOL OF LAW, San
Diego, California; Deena R. Hurwitz, International Human Rights

                                 2
Law Clinic, AMERICAN UNIVERSITY, Washington, D.C., for Amicus
Juan E. Mendez.     L. Kathleen Roberts, Nushin Sarkarati, THE
CENTER FOR JUSTICE & ACCOUNTABILITY, San Francisco, California;
Michael E. Tigar, Oriental, North Carolina; Ali A. Beydoun,
UNROW HUMAN RIGHTS IMPACT LITIGATION CLINIC, Washington, D.C.,
for Amici Abukar Hassan Ahmed, Dr. Juan Romagoza Arce, Zita
Cabello, Aziz Mohamed Deria, Carlos Mauricio, Gloria Reyes,
Oscar Reyes, Cecilia Santos Moran, Zenaida Velasquez, and Bashe
Abdi Yousuf.     Lawrence S. Ebner, Lisa N. Himes, Tami Lyn
Azorsky, Jessica C. Abrahams, DENTONS US LLP, Washington, D.C.,
for Amici Professional Services Council-The Voice of the
Government Services Industry, and Coalition for Government
Procurement. Raymond B. Biagini, Daniel L. Russell Jr., Herbert
L. Fenster, COVINGTON & BURLING LLP, Washington, D.C., for
Amicus KBR, Incorporated.




                               3
BARBARA MILANO KEENAN, Circuit Judge:

     Suhail Al Shimari, Taha Rashid, Salah Al-Ejaili, and Asa’ad

Al-Zuba’e (the plaintiffs), four Iraqi nationals, alleged that

they were abused while detained in the custody of the United

States Army at Abu Ghraib prison, located near Baghdad, Iraq, in

2003 and 2004.          They were detained beginning in the fall of

2003, and ultimately were released without being charged with a

crime.    In    2008,    they   filed   this    civil    action     against      CACI

Premier   Technology,       Inc.      (CACI),    which       provided      contract

interrogation    services       for   the   military    at    the   time    of    the

alleged mistreatment.

     In their third amended complaint, the plaintiffs alleged

pursuant to the Alien Tort Statute (ATS), 28 U.S.C. § 1350, that

CACI employees committed acts involving torture and war crimes,

and cruel, inhuman, or degrading treatment.               The plaintiffs also

asserted various tort claims under the common law, including

assault and battery, sexual assault and battery, and intentional

infliction of emotional distress.

     This case is before this Court for the fourth time.                    In our

most recent decision, we remanded the case to the district court

to conduct jurisdictional discovery on the issue whether the

political question doctrine barred the plaintiffs’ claims.                        On

remand, after reopening discovery, the district court dismissed

the plaintiffs’ complaint on the ground that it presented a non-

                                        4
justiciable political question.                        The court based its decision on

three grounds: (1) that the military exercised direct control

over     interrogation              operations          at     Abu     Ghraib;         (2)        that

adjudication of the plaintiffs’ claims would require the court

improperly        to   question       sensitive          military      judgments;        and       (3)

that the court lacked any judicially manageable standards to

resolve the plaintiffs’ claims.

       The   plaintiffs        once        again       appeal.       Upon    our       review,     we

conclude      that      the    district          court       erred   in     its    analysis        by

failing      to     determine        whether       the       military     exercised          actual

control      over      any    of    CACI’s       alleged       conduct.           We   hold       that

conduct by CACI employees that was unlawful when committed is

justiciable,        irrespective           whether       that      conduct    occurred        under

the actual control of the military.                           We further hold that acts

committed by CACI employees are shielded from judicial review

under the political question doctrine if they were not unlawful

when   committed        and    occurred          under       the   actual    control         of    the

military or involved sensitive military judgments.

       We    therefore        vacate       the    district         court’s    judgment.            We

remand the case for the district court to re-examine its subject

matter      jurisdiction           under    the    political         question      doctrine         in

accordance with the above holdings.




                                                   5
                                            I.

       We recounted the circumstances underlying the plaintiffs’

complaint and the complicated procedural history of this case at

length    in   our   previous        opinion,     Al     Shimari      v.    CACI    Premier

Tech., Inc., 758 F.3d 516 (4th Cir. 2014) (Al Shimari III).                              We

will review here only the facts relevant to the present appeal.

       Following the invasion of Iraq in 2003, the United States

took    control    of     Abu   Ghraib      prison     (Abu     Ghraib),      a    facility

located near Baghdad, Iraq that previously was under the control

of Saddam Hussein.            Upon assuming control of the facility, the

United    States     military     used      the   prison       to    detain    criminals,

enemies of the provisional government, and other persons held

for interrogation related to intelligence gathering.                               Due to a

shortage of military interrogators, the United States government

entered     into     a    contract      with      CACI    to        provide    additional

interrogation services at Abu Ghraib.

       As documented in a later investigation conducted by the

United    States     Department        of   Defense,      “numerous         incidents    of

sadistic, blatant, and wanton criminal abuses were inflicted on

several detainees” at Abu Ghraib between October and December

2003.     Al Shimari III, 758 F.3d at 521 (citing Maj. Gen. Antonio

M.   Taguba,   Article        15-6   Investigation         of    the    800th      Military

Police    Brigade        16   (2004)    (Taguba        Report)).           Department    of

Defense investigators concluded that CACI interrogators as well

                                             6
as    military       personnel       engaged          in    such    abusive      conduct.         Id.

(citing Taguba Report at 48 and 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)).         Numerous          service          members    were     disciplined

administratively or punished under military law by court martial

for    conduct       related        to     these          acts.      Some       service     members

received significant terms of imprisonment for their role in

these offenses.

       The        plaintiffs        alleged          in     their     complaint       that       CACI

interrogators            entered         into     a        conspiracy       with     low-ranking

military          police    officials           to        commit    abusive       acts      on    the

plaintiffs, in order to “soften up” the detainees so that they

would    be       more     responsive       during          later    interrogations.              The

plaintiffs         further     alleged       that         they     were    victims    of    a    wide

range        of     mistreatment,           including              being     beaten,        choked,

“subjected to electric shocks,” “repeatedly shot in the head

with     a    taser        gun,”     “forcibly             subjected       to    sexual      acts,”

subjected to sensory deprivation, placed in stress positions for

extended periods of time, deprived of food, water, and sleep,

threatened with unleashed dogs and death, and forced to wear

women’s underwear.

       Additionally,               the      plaintiffs               alleged         that        CACI

interrogators              “instigated,               directed,            participated           in,

                                                     7
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.”           According       to    the

plaintiffs,       most    of    these    acts       of     abuse    occurred       during    the

nighttime shift at the prison, in order to reduce the likelihood

that    nonparticipants           would        learn       of      this     conduct.         The

plaintiffs        contend      that     these       acts      of    abuse     were    possible

because      of   a    “command       vacuum”       at   Abu    Ghraib,      caused     by   the

failure of military leaders to exercise effective oversight over

CACI interrogators and military police.

       CACI moved to dismiss the plaintiffs’ complaint on several

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, holding in part that the plaintiffs’

claims did not present a political question.                              Nevertheless, the

court concluded that it lacked jurisdiction over the plaintiffs’

ATS    claims,     because      CACI     was    a    private        party    rather     than   a

governmental          actor,   and     opined       that      those    claims      could     only

proceed under diversity or federal question jurisdiction.

       On    appeal,      a    panel     of     this      Court       concluded      that    the

plaintiffs’       claims       were    preempted         by     federal      law     under   the

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

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

                                                8
413 (4th Cir. 2011) (Al Shimari I), vacated, 679 F.3d 205 (4th

Cir. 2012) (en banc).         On rehearing en banc, this Court vacated

the panel decision and dismissed CACI’s appeal as interlocutory.

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

banc) (Al Shimari II).

      On remand from Al Shimari II, the district court reinstated

the plaintiffs’ ATS claims, but dismissed without prejudice the

plaintiffs’ claims alleging a conspiracy between CACI and the

military. 1    The district court dismissed as barred by the statute

of    limitations    the   common     law   claims    brought     by     all   the

plaintiffs except Al Shimari.          In response, the plaintiffs filed

a third amended complaint to supplement their allegations of

conspiracy, limit their common law claims to Al Shimari, and

name CACI as the only defendant.             The third amended complaint

(the complaint) is the complaint at issue in this appeal.

      In April 2013, shortly after the third amended complaint

was   filed,   the   deadline   for    discovery     on   the   merits    of   the

plaintiffs’ claims expired.           The same week, the Supreme Court

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

S.    Ct.   1659    (2013),   which    imposed     certain      limitations    on

extraterritorial application of the ATS.             Relying on Kiobel, the


      1The court also dismissed with prejudice the plaintiffs’
claims against the parent company of CACI, CACI International,
and the conspiracy claims against individual CACI employees.


                                       9
district court dismissed the plaintiffs’ ATS claims, because the

underlying conduct occurred exclusively in Iraq.                                The district

court also dismissed Al Shimari’s common law tort claims under

Federal Rule of Civil Procedure 12(b)(6), holding that Iraqi law

did not permit imposition of liability on CACI.

      On    appeal       from     that     decision,           in    Al     Shimari     III     we

concluded      that     the     district     court          had   jurisdiction        over     the

plaintiffs’ ATS claims under the Supreme Court’s reasoning in

Kiobel.      758 F.3d 516 (4th Cir. 2014).                               Although CACI also

argued     that    the    case        should      be        dismissed      pursuant     to     the

political question doctrine, we declined to decide the political

question issue based on the limited appellate record available

at the time.            Instead, we vacated the district court’s order

dismissing      the     ATS     and    common         law    claims,      and   remanded       the

entire case for the district court to develop the factual record

regarding      the      extent        of   the        military’s         control   over       CACI

interrogators and whether CACI’s intended defenses raised any

political issues.         Id. at 536-37.

      On remand from Al Shimari III, the district court reopened

the   record      for   jurisdictional            discovery         on    the   issue   of     the

political question doctrine, although it appears that minimal,




                                                 10
if    any,   additional       discovery     was    taken. 2      As   noted      above,

following      the    reopened     discovery      period,     the   district         court

dismissed all the plaintiffs’ claims under Federal Rule of Civil

Procedure     12(b)(1)       on   the   ground    that    they   presented      a     non-

justiciable political question.                 The plaintiffs now appeal the

district court’s dismissal of their complaint on this ground.



                                         II.

       The plaintiffs contend that the district court erred in

dismissing      their        complaint     as     non-justiciable         under       the

political      question      doctrine.          They     first   assert       that    the

district court erred in finding that the military had direct

control over formal interrogations at Abu Ghraib prison, and in

failing to evaluate whether the military actually exercised such

control      during    related     activities      that    occurred     outside       the

formal interrogation process.              In the plaintiffs’ view, we are

not   presented       with   a    political      question,    because     a    “command

vacuum” existed at Abu Ghraib in which the military did not

exercise actual control over the conduct of the military police

and the CACI interrogators.




       2
       Notably, after eight years of litigation, to date only one
of the plaintiffs has been deposed in this case, because the
United States government has not allowed the plaintiffs to enter
the United States.


                                          11
       The    plaintiffs     also        argue    that     their    claims     would    not

require      the    courts   to        evaluate    sensitive       military     judgments

because      the    claims   challenge        the    legality,        rather    than    the

reasonableness, of CACI’s conduct.                    Separately, the plaintiffs

assert    that      the   district       court     erred    in     concluding    that    it

lacked manageable standards for resolving their claims.

       In response, CACI contends that the district court properly

concluded      that       this    case      presents       a     political      question.

According      to    CACI,       the     district     court’s       finding     that    the

military exercised control over interrogation operations at Abu

Ghraib ends the issue of justiciability in this case.                           CACI also

maintains that the district court correctly held that the case

is non-justiciable because judicial review of the interrogation

tactics      used    would       require     a     court    to     question     sensitive

military judgments.              Finally, CACI asserts that the district

court correctly concluded that it lacked manageable standards

for resolving the plaintiffs’ claims.                      We disagree with CACI’s

arguments.



                                            III.

       In reviewing a district court’s dismissal of a claim for

lack   of    jurisdiction         under     Federal      Rule    of   Civil     Procedure

12(b)(1), we review the court’s factual findings for clear error

and its legal conclusions de novo.                    In re KBR, Inc., Burn Pit

                                             12
Litig., 744 F.3d 326, 333 (4th Cir. 2014).                          We may consider the

plaintiffs’       pleadings        as    “mere      evidence”       on    the    question    of

jurisdiction,          and   may        also   consider          evidence       outside     the

pleadings without converting the motion to dismiss into a motion

for summary judgment.           Id.

       The   district        court        is   authorized          to     resolve       factual

disputes in evaluating its subject matter jurisdiction.                                  United

States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir.

2009); Williams v. United States, 50 F.3d 299, 304 (4th Cir.

1995);   Adams      v.     Bain,    697    F.2d      1213,       1219    (4th    Cir.    1982).

However, “when the jurisdictional facts and the facts central to

a tort claim are inextricably intertwined,” the district court

ordinarily        should     withhold      a     determination           regarding      subject

matter   jurisdiction         and       proceed      to    the     merits    of    the    case.

Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

                                               A.

       The political question doctrine derives from the principle

of separation of powers, and deprives courts of jurisdiction

over   “controversies          which      revolve         around    policy       choices    and

value determinations constitutionally committed” to Congress or,

as alleged in this case, to the executive branch.                               Japan Whaling

Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).                                     This

doctrine     is    a   “narrow      exception”        to     the    judiciary’s         general

obligation to decide cases properly brought before the courts.

                                               13
Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012).                       Although

most    military    decisions     are     committed         exclusively    to    the

executive branch, a claim is not shielded from judicial review

merely because it arose from action taken under orders of the

military.    Burn Pit, 744 F.3d at 334; see also Japan Whaling,

478 U.S. at 229-30 (“[I]t is error to suppose that every case or

controversy which touches foreign relations lies beyond judicial

cognizance.”) (quoting Baker v. Carr, 369 U.S. 186, 211 (1962))

(internal quotation marks omitted).

       The Supreme Court established a six-factor test in Baker v.

Carr, 369 U.S. 186 (1962) (the Baker factors), to aid courts in

determining whether a case presents a political question.                       These

factors   ask   whether   there    is:       “(1)   a     textually   demonstrable

constitutional commitment of the issue to a coordinate political

department, (2) a lack of judicially discoverable and manageable

standards   for    resolving    the     issue,      (3)    the   impossibility    of

deciding the issue without an initial policy determination of a

kind clearly for nonjudicial discretion, (4) the impossibility

of a court’s undertaking independent resolution of the issue

without expressing lack of the respect due coordinate branches

of government, (5) an unusual need for unquestioning adherence

to a political decision already made, or (6) the potentiality of

embarrassment      from   multifarious          pronouncements        by   various

departments on one question.”           Burn Pit, 744 F.3d at 334 (citing

                                        14
Baker, 369 U.S. at 217) (internal quotations and alterations

omitted).

     In Taylor v. Kellogg Brown & Root Services, Inc., 658 F.3d

402 (4th Cir. 2011), we considered the proper application of the

Baker   factors     to   cases   involving         the    civil    liability         of   a

government contractor in a negligence case.                       We distilled the

Baker     factors      into    two     questions         for    consideration             in

determining whether a court has subject matter jurisdiction in a

suit against a government contractor.                    We first asked “whether

the government contractor was under the ‘plenary’ or ‘direct’

control of the military” (direct control).                     Al Shimari III, 758

F.3d at 533 (quoting Taylor, 658 F.3d at 411).                     Second, we asked

whether “national defense interests were ‘closely intertwined’

with military decisions governing the contractor’s conduct, such

that a decision on the merits of the claim ‘would require the

judiciary to question actual, sensitive judgments made by the

military.’”     Id. at 533-34 (quoting Taylor, 658 F.3d at 411).

An affirmative response to either of the two Taylor factors,

namely,   the   fact     of   direct   control      or    the     need       to   question

sensitive military judgments, generally triggers application of

the political question doctrine.             Id.

     The plaintiff in Taylor, a Marine who suffered injuries

resulting from an electrical shock sustained on a military base

in   Iraq,    asserted    a    negligence      claim      against        a    government

                                        15
contractor based on the contractor’s activation of a generator

while the plaintiff was performing work on a wiring box.                              658

F.3d   at    403-04.       We    concluded        that    because      the   contractor

intended     to       assert    as    a   defense        that    the    military      was

contributorily negligent, the district court would be forced to

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

Id. at 411-12 (internal quotation marks omitted).                        We therefore

held that the political question doctrine deprived the court of

jurisdiction to consider the plaintiff’s negligence claim.                            Id.

at 412.

       Our   holding      in    Taylor    reflected       our    concern     that    when

national defense interests are at stake, courts must carefully

assess the extent to which these interests may be implicated in

any litigation of a plaintiff’s claims involving the conduct of

a military contractor.               Taylor, 658 F.3d at 409-10.                We give

this    question       particular      attention     because      courts       are   ill-

equipped     to   evaluate      discretionary       operational        decisions     made

by, or at the direction of, the military on the battlefield.

See generally Carmichael v. Kellogg, Brown & Root Servs., Inc.,

572 F.3d 1271 (11th Cir. 2009).

                                             B.

       The present case requires us to examine the factors and

related considerations discussed in Taylor.                         However, because

Taylor    was     a   negligence      case    and   the    present      case   involves

                                             16
allegations       of    intentional         acts,    we    frame     our    analysis       in

accordance with that distinction.

                                            i.

       As stated above, the first Taylor factor asks whether the

acts   occurred        while    the    government        contractor       was    under    the

direct control of the military.                    Taylor, 658 F.3d at 411.                In

Al Shimari III, we also described this factor in terms of “the

extent to which military personnel actually exercised control”

over the contractor’s acts.                 Al Shimari III, 758 F.3d at 535.

In the present case, after considering this first Taylor factor,

the    district    court       credited      the     evidence      that    the    military

maintained formal control over the interrogations, and concluded

that the case presented a political question depriving the court

of subject matter jurisdiction.

       In   the        district       court,       the    evidence        regarding       the

military’s       control       over   the    CACI     interrogators        proceeded       on

parallel    tracks,       with    evidence         demonstrating      formal      military

control presented alongside evidence showing that the military

failed to exercise actual control over the interrogators.                                With

regard to formal control, the record shows that the military was

in charge of the official command structure at Abu Ghraib and

instituted procedures governing the interrogation process.                               For

example,    in    September       and     October        2003,   military       leadership

located     in    Baghdad        issued      two     memoranda      establishing         the

                                             17
particularized      rules    of    engagement       for   interrogations          (IROEs)

conducted at Abu Ghraib, which authorized the use of several,

specific     interrogation             techniques. 3          In     addition,          all

interrogators were required to submit interrogation plans to the

military chain of command for advance approval.                            These plans

specified     the     interrogation          methods       that      the     particular

interrogators       intended      to     employ   and     included     requests         for

separate approval of more aggressive tactics, if necessary.

     Other evidence in the record, however, indicated that the

military     failed    to    exercise       actual       control     over    the       work

conducted by the CACI interrogators.                   In one government report,

an investigator unequivocally concluded that military leaders at

Abu Ghraib “failed to supervise subordinates or provide direct

oversight”    of     the    mission,       and    that    the      “lack    of    command

presence, particularly at night, was clear.” 4                      Lt. Gen. Anthony

R. Jones, AR 15-6 Investigation of the Abu Ghraib Prison and

205th    Military     Intelligence        Brigade      1137     (2004).          The   same

report emphasized that interrogation operations were “plagued by


     3  We observe that the September 2003 IROE memorandum
authorized aggressive interrogation tactics to be used under
certain conditions, including the use of stress positions and
“sleep management.”  The later, superseding memorandum removed
these tactics.

     4 Generally, investigative government reports of this nature
are admissible as an exception to the rule against hearsay under
Federal Rule of Evidence 803(8)(A)(iii).


                                           18
a lack of an organizational chain of command presence and by a

lack of proper actions to establish standards and training” by

senior leadership.     Id.     Additional evidence in the record also

indicates   that    CACI    interrogators    ordered     low-level     military

personnel to mistreat detainees.            This evidence supported the

plaintiffs’ contention that the formal command authority held by

the military did not translate into actual control of day-to-day

interrogation operations.

     The    above   evidence     of   a    “command    vacuum”      raises   the

question whether the military exercised actual control over any

interrogation-related        activities    during     which   the    challenged

conduct occurred.          Also, through operation of the Army Field

Manual 5 and IROEs, the military may have expressly prohibited the


     5 The United States Department of the Army Field Manual 34-
52, Intelligence Interrogation (Sept. 28, 1992) (the Field
Manual or Manual), in effect at the time of the alleged events
in this case, states that interrogations must occur within the
“constraints” of the Uniform Code of Military Justice as well as
the Geneva Conventions.      Id. preface at iv-v.    The Manual
expressly prohibits “[p]hysical or mental torture and coercion,”
defining “torture” as “the infliction of intense pain to body or
mind to extract a confession or information, or for sadistic
pleasure.”    Id. at 1-8.     The Manual also lists examples of
prohibited   practices,   including   some  of   the  techniques
challenged in this case, such as electric shocks, food
deprivation, “[a]ny form of beating,” “[f]orcing an individual
to stand, sit, or kneel in abnormal positions for prolonged
periods of time,” mock executions, and “[a]bnormal sleep
deprivation.”   Id.  The Field Manual cautions that any “[s]uch
illegal acts are not authorized and will not be condoned” by the
military. Id.



                                      19
use   of   certain      interrogation         methods,          but   failed   to     enforce

these prohibitions in practice.

       Rather than addressing the issue of actual control, the

district     court       began     and     ended         its     analysis      by     drawing

conclusions       based    on    the     evidence        of     formal   control.           This

approach failed to address the full scope of review that the

district court needed to conduct on remand.                           We explained in Al

Shimari    III    that     the    record      was    inconclusive         “regarding        the

extent to which military personnel actually exercised control

over CACI employees in their performance of their interrogation

functions.”        Al     Shimari      III,    758       F.3d    at    535.    We     further

observed that we were “unable to determine the extent to which

the military controlled the conduct of the CACI interrogators

outside     the    context        of     required         interrogations,           which    is

particularly concerning given the plaintiffs’ allegations that

‘[m]ost of the abuse’ occurred at night, and that the abuse was

intended to ‘soften up’ the detainees for later interrogations.”

Id. at 536.

      We thus asked the district court to consider whether the

military     actually       controlled             the    CACI        interrogators’        job

performance, including any activities that occurred outside the

formal interrogation process.                  The first Taylor factor is not

satisfied    by    merely        examining     the        directives      issued      by    the

military for conducting interrogation sessions, or by reviewing

                                              20
any   particular       interrogation     plans    that      the    military       command

approved in advance.              Instead, the concept of direct control

encompasses not only the requirements that were set in place in

advance of the interrogations, but also what actually occurred

in practice during those interrogations and related activities.

      In examining the issue of direct control, when a contractor

engages     in   a   lawful    action   under    the     actual     control       of    the

military, we will consider the contractor’s action to be a “de

facto military decision[]” shielded from judicial review under

the   political        question    doctrine.      Taylor,         658    F.3d    at    410.

However, the military cannot lawfully exercise its authority by

directing a contractor to engage in unlawful activity.                                Thus,

when a contractor has engaged in unlawful conduct, irrespective

of    the   nature      of    control   exercised      by     the       military,       the

contractor cannot claim protection under the political question

doctrine.        The    district    court     failed   to    draw       this    important

distinction.         Accordingly, we conclude that a contractor’s acts

may be shielded from judicial review under the first prong of

Taylor only to the extent that those acts (1) were committed

under actual control of the military; and (2) were not unlawful.

                                        ii.

      We turn now to consider the district court’s treatment of

the second Taylor factor, which asks whether a decision on the

merits of the claim would require the court to “question actual,

                                         21
sensitive judgments made by the military.”                  Al Shimari III, 758

F.3d at 533-34 (quoting Taylor, 658 F.3d at 411).                     The district

court concluded that the plaintiffs’ claims were non-justiciable

under this second Taylor factor.                 The court explained that it

was unequipped to evaluate whether the use of certain “extreme

interrogation measures in the theatre of war” was appropriate or

justified.        In the court’s view, adjudicating the plaintiffs’

claims    would    impinge    on   the    military’s       authority     to      select

interrogation       strategies     and    rules      of   engagement.         Debates

existing within the executive branch at that time regarding the

propriety of certain aggressive interrogation tactics reinforced

the court’s conclusion.

       We conclude that the above analysis that the district court

conducted    was     incomplete.         In    addressing    the     second      Taylor

factor,     the    district      court    erred      in    failing     to     draw     a

distinction between unlawful conduct and discretionary acts that

were not unlawful when committed.

       The commission of unlawful acts is not based on “military

expertise and judgment,” and is not a function committed to a

coordinate branch of government.                See Carmichael, 572 F.3d at

1282     (emphasis    omitted).          To    the      contrary,    Congress        has

established        criminal      penalties        for     commission        of     acts

constituting torture and war crimes.                    See 18 U.S.C. §§ 2340A,

2441.     Therefore, to the extent that the plaintiffs’ claims rest

                                          22
on    allegations    of    unlawful       conduct    in     violation      of   settled

international law or criminal law then applicable to the CACI

employees,    those       claims    fall    outside       the    protection      of   the

political question doctrine.              On remand, the district court must

first segregate such justiciable claims in its analysis before

proceeding to determine whether any claims alleging conduct that

was not unlawful implicated sensitive military judgments under

the second prong of Taylor.

                                          iii.

       In reaching this conclusion, we emphasize the long-standing

principle that courts are competent to engage in the traditional

judicial     exercise      of    determining       whether       particular     conduct

complied with applicable law.              See El-Shifa Pharm. Indus. Co. v.

United States, 607 F.3d 836, 842 (D.C. Cir. 2010) (en banc)

(majority opinion) (“[T]hat a case may involve the conduct of

the   nation’s     foreign      affairs    does     not    necessarily      prevent     a

court from determining whether the Executive has exceeded the

scope of prescribed statutory authority or failed to obey the

prohibition of a statute or treaty.”); cf. Gilligan v. Morgan,

413 U.S. 1, 11-12 (1973) (“[W]e neither hold nor imply that the

conduct of the National Guard is always beyond judicial review

or that there may not be accountability in a judicial forum for

violations    of    law    for     specific      unlawful       conduct    by   military

personnel.”)     (emphasis       added).         Accordingly,       when    a   military

                                           23
contractor     acts       contrary    to     settled     international            law   or

applicable    criminal       law,    the    separation      of      powers       rationale

underlying the political question doctrine does not shield the

contractor’s actions from judicial review.                     See Baker, 369 U.S.

at 217.

     For   the   same      reasons,     this      principle         generally     renders

justiciable claims against a government contractor alleging a

statutory violation.            See El-Shifa, 607 F.3d at 851 (Ginsburg,

J., concurring in the judgment).                   The adjudication of such a

claim   requires      a    court     only    to    engage      in    the    traditional

judicial     function      of    “say[ing]        what   the     law      is,”    and   of

determining how that law applies to the facts of a particular

case, rather than passing judgment on a discretionary policy

choice.    Burn Pit, 744 F.3d at 334 (quoting Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803)).

     The Supreme Court likewise has explained that the political

question doctrine does not strip courts of their authority to

construe treaties and agreements entered into by the executive

branch, despite the potential political implications of judicial

review.    Japan Whaling, 478 U.S. at 230.                Courts thus retain the

ability to apply traditional rules of statutory interpretation

to the facts presented in a particular case.                        Id.    Conducting a

“textual, structural, and historical” examination of a statute

or treaty “is what courts do” and typically is not barred by the

                                            24
political question doctrine.                   Zivotofsky, 132 S. Ct. at 1427,

1430;      see     also     El-Shifa,       607     F.3d    at    856       (Kavanaugh,      J.,

concurring         in     the   judgment)      (“The       Supreme      Court       has    never

applied      the    political        question       doctrine      in    a    case    involving

alleged statutory violations.”) (emphasis in original). 6

                                              iv.

      Applying the Taylor factors in accordance with the above-

stated      principles,         we    hold     that    any       conduct      of     the     CACI

employees that occurred under the actual control of the military

or involved sensitive military judgments, and was not unlawful

when committed, constituted a protected exercise of discretion

under the political question doctrine.                       Conversely, any acts of

the       CACI     employees         that     were     unlawful         when        committed,

irrespective whether they occurred under actual control of the

military, are subject to judicial review.                         Thus, the plaintiffs’

claims are justiciable to the extent that the challenged conduct

violated settled international law or the criminal law to which

the     CACI     employees       were       subject    at    the       time    the        conduct




      6Given the nature of the claims alleged in this case, we
are not presented at this stage of the litigation with “policy
choices and value determinations” embedded within a claim
alleging a violation of customary international law.    See El-
Shifa, 607 F.3d at 843-44 (majority opinion) (citation omitted)
(holding non-justiciable a claim under the law of nations
requiring the court to determine whether a U.S. military attack
was “mistaken and not justified”).


                                               25
occurred. 7     Cf.     Japan    Whaling,      478    U.S.    at    230;    Hamdi    v.

Rumsfeld, 542 U.S. 507, 536 (2004) (explaining that “a state of

war is not a blank check for the President” with respect to

individual rights) (opinion of O’Connor, J.).

       We   remain    mindful,   however,      that    this    dichotomy         between

lawful discretionary acts and unlawful activity will not always

be clear when applied to particular conduct.                       Although alleged

conduct that on its face is aggravated and criminal in nature,

such   as   sexual    assault    and    beatings,     clearly      will    present    a

subject for judicial review unaffected by the political question

doctrine,     other    conduct    may    not    be    capable       of    such    clear

categorization.        In instances in which the lawfulness of such

conduct was not settled at the time the conduct occurred, and

the conduct occurred under the actual control of the military or

involved sensitive military judgments, that conduct will not be

subject to judicial review.              Cf. Viet. Ass’n for Victims of

Agent Orange v. Dow Chem. Co., 517 F.3d 104, 123 (2d Cir. 2008)

(dismissing claims under the ATS because the plaintiffs did not

“ground[] their claims arising under international law in a norm

       7
       We decline CACI’s invitation to rely on out-of-circuit
precedent cited in its letter submitted to the Court after oral
argument.   These citations are not the proper subject of a
submission pursuant to Federal Rule of Appellate Procedure
28(j). And, in any event, these authorities only reinforce our
view that, when a plaintiff’s claim challenges a core foreign
policy decision made by the political branches of government,
the political question doctrine bars review.


                                         26
that was universally accepted at the time of the events giving

rise to the injuries alleged”).                    The absence of clear norms of

international        law    or   applicable         criminal        law   regarding      the

lawfulness of a particular mode of treatment will render that

“grey area” conduct non-justiciable under the political question

doctrine, as long as the conduct was committed under the actual

control    of      the     military      or    implicated           sensitive     military

judgments.

       Here, the plaintiffs alleged pursuant to the ATS that CACI

interrogators engaged in a wide spectrum of conduct amounting to

torture,     war     crimes,      and/or       cruel,        inhuman,      or    degrading

treatment, as well as various torts under the common law.                              Among

other things, the plaintiffs alleged that they were subjected to

beatings, stress positions, forced nudity, sexual assault, and

death threats, in addition to the withholding of food, water,

and medical care, sensory deprivation, and exposure to extreme

temperatures.        Counsel for CACI conceded at oral argument that

at least some of the most egregious conduct alleged, including

sexual assault and beatings, was clearly unlawful, even though

CACI    maintains        that    the    plaintiffs       cannot        show     that    CACI

interrogators perpetrated any of these abuses.

       We decline to render in the first instance a comprehensive

determination        of     which       acts       alleged     were       unlawful      when

committed,      or   whether      the    plaintiffs          have    stated     claims    to

                                              27
relief that could survive a motion filed under Federal Rule of

Civil Procedure 12(b)(6).     Nevertheless, as noted above, some of

the alleged acts plainly were unlawful at the time they were

committed and will not require extensive consideration by the

district court.      Accordingly, on remand, the district court will

be   required   to    determine   which    of   the   alleged   acts,   or

constellations of alleged acts, violated settled international

law and criminal law governing CACI’s conduct and, therefore,

are subject to judicial review. 8       The district court also will be

required to identify any “grey area” conduct that was committed

under the actual control of the military or involved sensitive

military judgments and, thus, is protected under the political

question doctrine.


     8 As with the ATS claims, to the extent that conduct
underlying the common law claims was unlawful, those claims also
will be justiciable.        We observe, however, that certain
allegations underlying the common law claims may involve conduct
that, although tortious under the common law, did not constitute
a violation of applicable criminal or international law.       A
nonconsensual touching that might constitute battery, or conduct
that might amount to intentional infliction of emotional
distress, under the common law nevertheless may have been an
interrogation tactic that the military lawfully could have
authorized.      Accordingly,   we  express  no   view   on  the
justiciability of common law claims alleging conduct that was
not unlawful at the time.     We leave this determination to the
district court in the first instance.
     In the event that the district court determines that any of
the common law claims are justiciable, the court nevertheless
may elect to reinstate its prior order dismissing those claims
under Rule 12(b)(6), which order this Court has not yet
reviewed.


                                   28
       This “discriminating analysis,” see Baker, 369 U.S. at 211,

will     require   the      district        court       to    examine       the     evidence

regarding    the   specific          conduct      to    which   the   plaintiffs           were

subjected and the source of any direction under which the acts

took place.        If disputed facts are “inextricably intertwined”

with the facts underlying the merits of the plaintiffs’ claims,

the district court should resolve these disputed jurisdictional

facts along with the intertwined merits issues.                         See Kerns, 585

F.3d at 193.

                                             C.

       Distinct    from        its    holding      of     non-justiciability              under

Taylor, the district court separately concluded under the second

Baker    factor    that    the       case    lacked      manageable       standards        for

judicial     resolution        of    the    plaintiffs’         claims.           The    court

emphasized     that      its    general      lack       of   expertise       in     applying

international      law,        and    the     difficulty        of    determining          the

constraints of such law, also rendered the case non-justiciable.

We disagree with the district court’s conclusion.

       Unlike in negligence cases calling into question military

standards of conduct, the district court in the present case is

called     upon    to     interpret         statutory        terms    and     established

international norms to resolve the issues presented by the ATS

claims.     See Kadic v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995)

(“[U]niversally         recognized      norms     of    international        law        provide

                                             29
judicially      discoverable          and        manageable         standards           for

adjudicating suits brought under the Alien Tort Act.”).                           Compare

also Carmichael, 572 F.3d at 1287 (“[O]nly the military was in a

position to meaningfully balance [the] risks [of the mission] in

light of its broader strategies and objectives; and only the

military    possessed    the   competence         to   make    the       many    critical

tactical decisions concerning the safest and most efficacious

way to conduct the convoy.”), with Japan Whaling, 478 U.S. at

230 (noting courts’ competency to apply traditional rules of

statutory    interpretation,       even     in    cases    presenting       “political

overtones”).

       With regard to the present case, the terms “torture” and

“war crimes” are defined at length in the United States Code and

in     international    agreements          to     which      the    United       States

government has obligated itself.                 See, e.g., 18 U.S.C. §§ 2340-

2340A    (implementing       the      United      States’      obligations         as    a

signatory of the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment); 18 U.S.C. § 2441

(prescribing criminal penalties under the United States Code for

“war     crimes,”   including         “grave       breaches”        of     the    Geneva

Conventions).       Courts     also    have      undertaken     the       challenge      of

evaluating whether particular conduct amounts to torture, war

crimes, or cruel, inhuman, or degrading treatment.                          See, e.g.,

United States v. Belfast, 611 F.3d 783, 828 (11th Cir. 2010)

                                          30
(torture);       Kadic,      70    F.3d      at    243       (war    crimes          and    torture);

Xuncax     v.    Gramajo,         886   F.    Supp.          162,    187       (D.    Mass.        1995)

(torture and cruel, inhuman, or degrading treatment).                                       Likewise,

in his common law claims, Al Shimari has alleged familiar torts

based on long-standing common law principles.

      Although        the    substantive           law       applicable         to    the     present

claims may be unfamiliar and complicated in many respects, we

cannot     conclude     that       we    lack      manageable            standards         for     their

adjudication       justifying           invocation           of    the    political          question

doctrine.        In    reaching         this      conclusion,            we     agree       with     the

observation       that       courts       may          not        “decline       to        resolve     a

controversy       within       their      traditional               competence         and       proper

jurisdiction       simply         because      the       question         is     difficult,          the

consequences weighty, or the potential real for conflict with

the policy preferences of the political branches.”                                     Zivotofsky,

132   S.   Ct.    at    1432       (Sotomayor,           J.,       concurring         in    part     and

concurring       in    the     judgment);          cf.        Hamdi,       542       U.S.     at     536

(“Whatever power the United States Constitution envisions for

the Executive in its exchanges with other nations or with enemy

organizations in times of conflict, it most assuredly envisions

a role for all three branches when individual liberties are at

stake.”) (opinion of O’Connor, J.).




                                                  31
                               IV.

     We recognize that the legal issues presented in this case

are indisputably complex, but we nevertheless cannot abdicate

our judicial role in such cases.     Nor will we risk weakening

prohibitions under United States and international law against

torture and war crimes by questioning the justiciability of a

case merely because the case involves the need to define such

terms.   The political question doctrine does not shield from

judicial review intentional acts by a government contractor that

were unlawful at the time they were committed.

     Accordingly, we vacate the district court’s judgment, and

remand this case for further proceedings consistent with the

principles and instructions stated in this opinion.



                                             VACATED AND REMANDED




                               32
FLOYD, Circuit Judge, concurring:

      I am pleased to join in Judge Keenan’s fine opinion in this

case.     I write separately to articulate my understanding of one

aspect of our holding.                I agree that the “dichotomy between

lawful discretionary acts and unlawful activity will not always

be clear when applied to particular conduct.”                       Ante at 26.        In

discussing this concept with the term “grey area,” ante at 26-

28,   I   do    not    understand     the     opinion    to    suggest    that   courts

cannot     adjudicate         close     questions       of     lawfulness      regarding

military affairs.         Courts can adjudicate such questions without

offending the political question doctrine.

      “The nonjusticiability of a political question is primarily

a function of the separation of powers” under our constitutional

scheme.        Baker v. Carr, 369 U.S. 186, 210 (1962).                     That scheme

does not assign military decision making to the judiciary and,

as a consequence, questions of military policy are not for us to

resolve.         But   this    does     not    mean    that    every    case   touching

military affairs is nonjusticiable.                   In separating the powers of

government, the Constitution assigns to the judiciary the power

to resolve “what the law is.”                  Marbury v. Madison, 5 U.S. 137,

177   (1803).          Thus    although       the     reasonableness      of   military

conduct may not be justiciable, the lawfulness of that conduct

assuredly       is.     Cf.,    e.g.,    Boumediene       v.    Bush,    553   U.S.   723

(2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

                                              33
      The precise contours of “what the law is” may be uncertain

until a court evaluates the lawfulness of specific conduct.                          For

example, despite repeated judicial application of torture laws,

see ante at 30, the precise legal scope of the prohibition on

torture is not perfectly defined.                     There is, in other words,

conduct     for     which   the    judiciary      has    yet    to   determine       the

lawfulness:       loosely, a grey area.

      But    this    greyness      does   not    render      close   torture     cases

nonjusticiable merely because the alleged torturer was part of

the executive branch.            While executive officers can declare the

military reasonableness of conduct amounting to torture, it is

beyond the power of even the President to declare such conduct

lawful.       The    same   is    true    for    any    other    applicable      legal

prohibition.          The    fact    that       the     President--let       alone    a

significantly       inferior      executive     officer--opines       that    certain

conduct is lawful does not determine the actual lawfulness of

that conduct.        The determination of specific violations of law

is constitutionally committed to the courts, even if that law

touches military affairs.             Cf., e.g., Gilligan v. Morgan, 413

U.S. 1, 11-12 (1973).

      Of course the fact that a claim is justiciable under the

political question doctrine says very little about that claim’s

procedural or substantive merits.                Among other things, a claim

may   be    inadequately     alleged,      barred       by   other   jurisdictional

                                          34
doctrines, or ultimately not proven.                      “In instances in which

the lawfulness of . . . conduct was not settled at the time the

conduct occurred,” ante at 26, a defendant may be able to avoid

liability through the doctrine of qualified immunity, the ATS

requirement     that    conduct      violate   customary        international      law,

the requirement of Federal Rule of Civil Procedure 12 that a

claim    be   stated    for   which     relief      may   be    granted,     or   other

applicable law.         See, e.g., Viet. Ass’n for Victims of Agent

Orange   v.    Dow    Chem.   Co.,     517   F.3d    104,      123   (2d   Cir.    2008)

(adjudicating and dismissing claims brought pursuant to the ATS

because the plaintiffs did not allege conduct proscribed by a

sufficiently         universal    customary         international          law    norm).

However,      the    judiciary    is   well    equipped        to    adjudicate     such

issues without impermissibly answering political questions.




                                         35
