If you think agency law is boring, take a look at the Jan. 27 opinion by a federal court in the torture case brought by three foreign citizens against two psychologists who worked for the CIA.  The plaintiffs filed suit under the Alien Torture Act, alleging that they were subjected to an experimental torture program designed and administered by the psychologists.

The psychologists moved to dismiss on the grounds that the Military Commissions Act (MCA) deprives the court of jurisdiction over “non-habeas detention-related claims” brought against the United States or its agents by alien enemy combatants.

The plaintiffs argued that the MAC doesn’t apply because two of the five required elements are missing: (1) that the plaintiff was “determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination” and (2) that the claim is a claim against “the United States or its agents.”

The court wrestled with arguments on the first of the two elements, ultimately concluding that two plaintiffs were correct as to their enemy combatant status but that as to the third plaintiff, the issue was close.  Then the court observed that it “need not definitively resolve the issue of enemy combatant status at this juncture.”  Why?  Because the plaintiffs were clearly correct in arguing that the second element required by the MAC was missing: that the claim is against the U.S. or its agents.

This is where agency law comes in.  The defendants insisted that in their work for the CIA, they were “agents” of the U.S.  In fact, according to the court, their pleadings seemed to assume that it was “a given fact” that they were agents.

The plaintiffs argued that the defendants were not agents, but merely independent contractors.  The court reviewed the contracts and concluded that the plaintiffs were right: the defendants were independent contractors—not agents.  Because that element required by the MCA was missing, the court denied the motion to dismiss.

The case is Salim v. Mitchell, No. CV-15-0286-JLQ (E.D. Wash., Jan. 27, 2017).