Supreme Court liberals side with Clarence Thomas on Taliban suicide bomber lawsuit, 3 others dissent

In a 6-3 decision, the Supreme Court on Wednesday allowed a lawsuit brought by a U.S. Army veteran injured in a Taliban suicide bombing to proceed, vacating a lower court ruling that had dismissed it. 

Winston Tyler Hencely, a former U.S. Army specialist, suffered a fractured skull and brain injuries when a Taliban operative working for the military contractor Fluor Corporation blew up a suicide vest at Bagram Airfield in Afghanistan in 2016.

The U.S. District Court for the District of South Carolina made a summary judgment for Fluor, and the U.S. Court of Appeals for the Fourth Circuit affirmed, the opinion notes.

The majority opinion, written by Justice Clarence Thomas, rejected a broad “battlefield preemption” theory that would have blocked state-law claims tied to combat activities. Thomas — joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson — wrote that military contractors are not automatically shielded from liability when their conduct was not authorized by the military — even in war zones.

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“The Fourth Circuit’s decision held Hencely’s claims preempted even though the conduct complained of was neither ordered nor authorized by the Federal Government. No provision of the Constitution and no federal statute justifies that preemption of the State’s ordinary authority over tort suits. Nor does any precedent of this Court command such a result. Therefore, we vacate the judgment of the Fourth Circuit and remand the case for further proceedings consistent with this opinion,” Wednesday’s decision declares.

“In 2016, a Taliban operative working for respondent Fluor Corporation, a military contractor, carried out a suicide-bomb attack at Bagram Airfield in Afghanistan. After then-Army Specialist Winston T. Hencely confronted him, the bomber detonated his suicide vest,” the opinion explains. “As a result of the injuries he received, Hencely is now permanently disabled.”

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“In an effort to recover damages for his injuries, Hencely sued Fluor, bringing state-law tort claims for negligently retaining and supervising the attacker. According to Hencely and the United States military, Fluor’s conduct was not authorized by the military and even violated instructions the military had given it as a condition of operating on the base,” the opinion notes.

Justice Samuel Alito, Chief Justice John Roberts and Justice Brett Kavanaugh dissented.

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“May a State regulate security arrangements on a military base in an active warzone? May state judges and juries pass judgment on questions that are inextricably tied to military decisions that balance war-related risks against long-term strategic objectives? In my judgment, the answer to these questions must be ‘no,’ and for that reason, this state-law tort case is preempted by the Constitution’s grant of war powers exclusively to the Federal Government,” Alito wrote in leading the dissent. 

“The Constitution divides authority between the Federal Government and the States in many areas, but not when it comes to war. War is the exclusive domain of the Federal Government, but the Court allows state (or foreign law) to encroach on that domain. The Constitution precludes that encroachment, and therefore petitioner’s suit is preempted. Because the Court holds otherwise, I respectfully dissent,” Alito noted.