United States Court of Appeals District of Columbia - Center for ...

In addition, as described above, L-3 translator Hamza Elsherbiny
violently assault an Iraqi prisoner until he was stopped by a United States
soldier.
SUMMARY OF ARGUMENT
L-3’s egregious misconduct (described in the Statement of Facts)
harmed the Plaintiffs, and also harmed the United States’ military interests.
There is no law or judicial doctrine that requires this Court to insulate such
egregious corporate misconduct from civil liability. As explained below in
Section I, even assuming arguendo that the District Court adopted an
appropriate legal test (“exclusive operational control”), the District Court
erred when applying the test to the facts because it failed to consider critical
material facts – namely, L-3 breached its contract, and the military was
unable to control or discipline L-3 employees. As explained below in
Section II, if the District Court’s “exclusive control” test, properly applied,
results in immunity for L-3, then the test itself must be flawed. Immunity
for defense contractors is only extended consistently with, not contrary to,
the United States’ interests. Here, as the military has stated in regulatory
comments published recently in the Federal Register, the United States’
interests are harmed, not helped, by letting L-3 and other service contractors
evade accountability for their own acts not directed or controlled by the
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