How government decisions during war echo long after service ends

Terry Gerton When we last spoke in October of 2025, this case was still kind of on its way towards the Supreme Court. Before we get into what’s happened lately, just refresh our memory on the events of the case and the central issues.

Lisa Himes Yes, in this case, there was an issue with a subcontractor to Fluor who was serving as a Afghan national employee for the subcontractor in Afghanistan. And this employee was part of this Afghan first program that was hired to work on the base, the Bagram Airfield base in Afghanistan. And the case stems from a 2016 suicide bombing by this Afghan national that was employed by the Fluor subcontractor. One of the individuals who was severely wounded, one of the victims, Hencely, sued Fluor under South Carolina law, and the lower courts ruled that the combatant activities exception protected the contractor, Fluor.

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Terry Gerton The Supreme Court, though, has actually ruled in favor of Mr. Hencely, correct? So what was their take on the combat activities exclusion?

Lisa Himes Yes, the court ruled recently in a decision six to three with Justice Thomas writing the decision that there was no preemption in this case, finding that the Boyle [decision], which I think we talked about before, did not apply — the Boyle decision from 1988 did not apply and that there were no combatant activities exception for contractors under the statute. We can get into that more too, the Federal Tort Claims Act exception for combatant activities which applies to the military. The court found that it did not apply to contractors. And the court also found that there was nothing in the constitution that provided for preemption.

Terry Gerton Does this court decision actually have the impact of kind of redefining combat or redefining at least how contractors engage in combat environments?

Lisa Himes It will have, I believe, some significant implications and repercussions for contractors that are performing combat work overseas in support of the U.S. military. I mentioned this in, I wrote an article for the Decision. We talked and I also provided an amicus brief with my former colleague, Larry Ebner of the Atlantic Legal Foundation. And we touched on these issues about how important contractors are to combat operations for the U.S. Military and a decision not allowing for preemption of these types of cases will lead to significant changes in the way the contractors handle the combat support work. One thing I would add though is there was a strong dissent here, which I think is very important for folks to understand when they’re looking at this case. So, while the majority decision, which was six of the justices, held that there was no combatant activities exception here, that decision was actually 16 pages. And the dissent here, which was written by Justice Alito and joined by Chief Justice Roberts and Justice Kavanaugh, was a 19-page dissent, and it was a strong dissent. That dissent I view as one where the dissents focused on the fact that the constitution itself and the structure of the constitution does provide for preemption, and that they argued that the majority was getting it wrong. What I view the dissent is doing is providing a roadmap for the political question doctrine. So when I say that this will have significant changes, really what it does is it removes one of the options that contractors have for arguing that these cases these types of combat cases, which involve state tort law, should not proceed. The combatant activities preemption, which I’ve argued in many cases and been successful in many, cases is now kind of off the table for contractors. And you’re looking at the political question doctrine, which I argued prior to this case in an article that it was an alternate ground for dismissal here. I think the district court and the Fourth Circuit got it wrong. So I do believe that Justice Alito did a very good job of kind of providing that roadmap for political question. In fact, the first couple of lines of the dissent are actually questions that you ask in a political question type of case. So it is gonna provide, I think, a reevaluation by contractors. So the contractors are gonna look at this and I think there’s gonna be an analysis of, are we doing things that are authorized by the federal government when we’re over and performing work in support of the government? Are we following those directives? Because if we’re not, we’re more hesitant to take on the work. Even the contractors that agree to do the work may stop and question what they’re doing and say, well, you know, am I implementing the military directives or am I going slightly outside? Because ultimately this case looked at allegations. Just allegations that the contractor, Fluor was not following the military directives. And so essentially the majority of the court is saying, well, those allegations are enough. That’s all you need to ultimately prevent this case from, prevent the immunity essentially of these contractors and prevent the preemption. And I think that’s going to be a big issue for factors. It’s a lot of explanation right there.

Terry Gerton Lisa Himes is of counsel with Rogers Joseph O’Donnell. Lisa, I want to drill back in on one of the things you said there, which is relative to the political question and contractors following orders. How does this decision impact how the Defense Department is going to have to think about how they use contractors in combat environments?

Lisa Himes I think they’re gonna have to think about where they put these contractors and what roles the contractors are given in supporting the U.S. Military because I think the dissent also does a good job of talking about how, you know, if you have these contractors involved in these types of operations, which are essential, you know right now the military needs these contractors, then you could get into a situation where where the military would otherwise be preempted under the combatant activities exception to the Federal Tort Claims Act, which is the statute itself, or under certain other grounds that we’re talking about here, political question and whatnot, the contractors could be subject to suit here. And if the contractors are subject to suite, like in this case, the contractors are going to point the finger to the military and say, we were following the directions, and the directives of the military here. And then you have the situation which nobody wants to get into. The military doesn’t want to be pulled into these types of cases where their folks are being deposed, where certain sensitive information is getting out in litigation. So I think they’re going to have to, the government’s really going to think about how they place these contractors, what contracts they’re using these contractors to provide support. And do they have to now get the military to handle certain work that the contractors have been handling for the last several decades? So I think there’s a lot of that kind of analysis because, as I said, one of these options now is kind of off the table for contractors. So a political question doesn’t apply. And, you know, that’s going to be the question I think that we’re going to see going forward, then there is less of an opportunity for contractors to do this work, and then to ultimately get out of tort litigation when plaintiffs alleged that they did something wrong.

Terry Gerton The military remains engaged in active combat operations in the Middle East right now, today. Do you expect this decision to ripple through into current operations? And if so, how?

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Lisa Himes I think right now the military is performing combat operations, contingency operations, and the contractors are providing that support. I think there’s going to be this analysis that I mentioned by both the contractors and the military, and it may involve an analysis of those contracts themselves, those directives, when you’re actually on the ground, what those contractors are going to do on the ground in support of the military, because again, you have a situation where they may stop to question, am I doing something that might not be ‘authorized,’ right? And the military and the majority decision really looks at that and says, well, the issue here was that plaintiffs were alleging that this conduct was not authorized, that floor was engaging again. So, you know, it gets very concerning for contractors and I think it’s going to be more of the contractor saying we need some documentation here that this, that whatever work we’re going to do for you is going to authorized, otherwise we can’t move forward with this type of work that ultimately could come back and we could be involved in years long litigation and nobody wants that. So that’s what I think is going start to happen. I think you’re going start see more of that.

Terry Gerton The Supreme Court’s decision ultimately allows Mr. Hencely’s suit against Fluor to proceed. What will folks be watching as that case now finally begins to move forward?

Lisa Himes I think folks are going to be watching to see whether the dissent, which I think really provides a roadmap for political question, with the court, and this is the district court in South Carolina, ultimately finds that the political question doctrine bars the suit. I think the language from that dissent, I mentioned the first couple of questions that Judge Alito asks are political question type of questions. And then, you know, the dissent, while it fights hard for what it believes is this preemption based on the constitution and structure, the dissent then really goes through all of these issues about how the military is balancing security and the strategic and policy objectives of promoting economic development in Afghanistan, which led to the Afghan First Policy, which but to bring it on this Afghan national who ultimately was the suicide bomber. So I think that balancing test is really a political question type test. When the military is making those types of decisions, that is something that the court should not intrude into — I’ve argued that many times and been successful, like the Taylor case, the Carmichael case, others. And I think here, there was some acknowledgement by the Fourth Circuit after the fact that while it did not find that the political question doctrine applied, it said that later after they had seen more down the road, right… I forget the exact language — but ultimately that political question was stronger than it had been at the beginning. And I think you’re just going to see that the decisions that were made here by the military in that balancing test, and then also what would happen if this case proceeded, where military personnel would be hauled into court, deposed, and there would be all of these sensitive documents that would be coming out. That’s where political question applies. And so I do think that the language and the dissent makes it clear that this is the type of for which political question would apply, I believe. And so I think that’s the way it’s going to go. I think people are going to watch to see if the court does in fact find that the political question doctrine applies. If that is the case, I think the case will be appealed. Fourth Circuit would have to look at that once again. And I think, that’s my prediction as to how it’s going to proceed.