Susan L. Burke

Wissam Abdullateff Sa’eed Al-Quraishi, a father of three, alleged that he was hung on a pole for seven days at the hard site of Abu Ghraib prison, and that he was beaten, kept naked, given electric shocks, and put through mock executions. He also alleged that he had watched an Arabic translator named Adel Nakhla hold down a fourteen-year-old boy while another man raped him. Detainees knew Nakhla as Abu Hamid. The Titan Corporation, which held an Army contract to supply translators, had sent him to Iraq, and Maj. Gen. Antonio Taguba, who investigated the abuse at Abu Ghraib for the Army, named him as a suspect. Two years after the photographs from the prison became public, Nakhla had not been charged with any crime. He lived in suburban Maryland and worked as a lab technician at an eyeglasses store in a shopping mall.

On June 30, 2008, Susan L. Burke sued Nakhla and L-3 Services, formerly Titan, in the federal court in Greenbelt, Maryland, with Al-Quraishi as the lead plaintiff. By that November the suit carried seventy-two Iraqis, men who had been held for as long as four years in prisons across Iraq and released without charge. L-3 and Nakhla, along with CACI in a companion case, answered that private contractors performing government functions should receive the same civil immunity as American soldiers. Burke put her reply in a single sentence when the contractors’ appeals were first argued, in October 2010: “They are asking for something that neither Congress nor the military has given them — absolute immunity.” On January 27, 2012, she argued for the detainees before the full United States Court of Appeals for the Fourth Circuit. On May 11 the en banc court dismissed the contractors’ appeals, 11 to 3, and sent the case back to Maryland. That October the former detainees settled with Engility, the company that had inherited the claims from L-3, for $5.28 million.

Seventy-Two Iraqis and a Translator Who Lived in Maryland

Burke and her firm, then Burke O’Neil, brought Al-Quraishi v. Nakhla in the United States District Court for the District of Maryland with lawyers from the Center for Constitutional Rights, among them Katherine Gallagher, and Shereef Akeel of Troy, Michigan. Judge Peter J. Messitte presided. The first complaint named a single plaintiff; an amended complaint in September 2008 added sixty-nine more, and two others joined that November. The claims that reached the Fourth Circuit ran against two defendants. L-3 Services, formerly the Titan Corporation, had contracted with the U.S. military to provide civilian Arabic translators, who worked at military prisons and detention facilities in Iraq. Adel Nakhla, a naturalized U.S. citizen born in Egypt, worked for L-3 as a translator at Abu Ghraib from June 2003 through May 2004 and lived in Maryland. The plaintiffs alleged that he had been photographed taking part in the torture of prisoners there and that he had confessed to military investigators.

The plaintiffs alleged that L-3 employees, Nakhla among them, tortured and mistreated them in military custody, and that the company “permitted scores of its employees to participate in torturing and abusing prisoners over an extended period.” Coalition forces had arrested them and held them, between July 2003 and May 2008, at Abu Ghraib and at other prisons across Iraq. The abuse they described included beatings, hanging by the hands and feet, electrical shocks, mock executions, dragging across rough ground, threats of death and rape, sleep deprivation, abuse of the genitals, forced nudity, dousing with cold water, stress positions, sexual assault, confinement in small spaces, and sensory deprivation. One plaintiff alleged that his eyes were nearly clawed out and that he was hung upside down until he lost consciousness. All of them alleged that they were innocent of any crime and that they were eventually released without being charged. The complaint pleaded nine counts under the Alien Tort Statute and eleven under state law, among them assault, battery, sexual assault, intentional infliction of emotional distress, and negligent hiring and supervision.

Judge Messitte and “a Contractor’s Rogue Operations”

L-3 and Nakhla moved to dismiss on four grounds. They argued that they were immune under the laws of war, that the case presented a political question the courts could not answer, that they shared the government’s sovereign immunity, and that, as contractors integrated into combat activities under military command, they were immune from the state-law claims. On that point they relied on the D.C. Circuit’s decision in Saleh v. Titan Corp., which had held such claims preempted in a suit by other Iraqis detained at Abu Ghraib against military contractors that provided translation and interrogation services, L-3 among them. Messitte heard argument on the motions in Greenbelt on March 9, 2009.

Messitte denied the motions on July 29, 2010, in a 92-page opinion. On the laws of war, he relied on the Supreme Court’s statement in Rasul v. Bush that “nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the privilege of litigation in U.S. courts.” On the political question, he quoted the federal court in Virginia that had rejected the same argument in the companion suit against CACI, Al Shimari v. CACI Premier Technology: the suit “challenges not the government itself or the adequacy of official government policies, but the conduct of government contractors carrying on a business for profit.” On derivative immunity, he held that “relying on the information in the Complaint, it is clearly too early to dismiss Defendants on the basis of derivative sovereign immunity.”

He declined to follow Saleh. “The discretionary function test protects the Government from activities occurring within the scope of a contractor’s engagement,” Messitte wrote. “But there was and is no need to craft a new rule that immunizes a contractor’s rogue operations.” After the ruling Burke said that “these innocent men are a step closer to completing the true history of the infamous Abu Ghraib prison.” She added: “These men were senselessly tortured by a company that profited from their misery.”

The Full Fourth Circuit Dismisses the Contractors’ Appeals

An order denying a motion to dismiss ordinarily cannot be appealed until the case ends. L-3 appealed on August 6, 2010, and Nakhla on August 11, under the collateral-order doctrine, which allows an immediate appeal from an order that conclusively decides a question, resolves an important issue separate from the merits, and would be effectively unreviewable after final judgment. A denial of immunity from suit can qualify, because that protection is lost once the defendant is forced through litigation. The Fourth Circuit consolidated the appeals with CACI’s appeal in Al Shimari, where Burke represented four other former detainees.

A three-judge panel first heard the appeals on October 26, 2010. Ari S. Zymelman argued for L-3, and J. William Koegel Jr. argued for CACI: “No power under the Constitution is more marked for judicial deference than national defense.” Burke answered that a contractor could be sued for conduct its contract never authorized, and that prisoner abuse was such conduct. “Physical brutality is outside the scope of interrogation,” she said. “The U.S. did not hire CACI to go over there and beat the heck out of people.”

The full court heard the consolidated appeals on January 27, 2012. Burke and Baher Azmy of the Center for Constitutional Rights argued for the detainees, with Burke’s colleague Susan M. Sajadi and co-counsel including Katherine Gallagher, J. Wells Dixon, Joseph F. Rice, and Shereef Hadi Akeel on the brief. At the court’s invitation, the Department of Justice filed a brief for the United States and took part in the argument; the government’s position was that the court lacked jurisdiction to decide the appeals. A group of retired military officers filed a brief supporting the detainees.

On May 11, 2012, the court dismissed the appeals. Judge King wrote for an eleven-judge majority that included Chief Judge Traxler and Judges Motz, Gregory, Duncan, Agee, Davis, Keenan, Wynn, Diaz, and Floyd. “The appellants are requesting immunity in a context that has been heretofore unexplored,” King wrote. “These are not disputes in which facts that might be material to the ultimate issue have been conclusively identified.”

The majority treated Saleh preemption as a defense to liability, reviewable on appeal after final judgment, and set it apart from immunity, which “has consistently been administered as a protection against the burden of litigation altogether.” It held that “Boyle preemption (and, thus, Saleh preemption) is, ipso facto, not immunity.” On the contractors’ claim to share the government’s immunity, the court found the facts too undeveloped to decide: “a court is entitled to have before it a proper record, sufficiently developed through discovery proceedings, to accurately assess any claim, including one of immunity.” Without an independently reviewable issue bound up with the political question, the court said it was “without authority to make any pronouncement on that aspect of the appellants’ defense.”

Judge Wilkinson, joined by Judges Niemeyer and Shedd, dissented, and Judge Niemeyer wrote a separate dissent, which Judges Wilkinson and Shedd joined. Wilkinson wrote: “Tort suits place the oversight of military operations in an unelected judiciary, contract law in a politically accountable executive.” Under the majority’s ruling, L-3 and Nakhla could press that argument in the district court, on a record developed through discovery.

Engility’s $5.28 Million Payment

The dismissal sent Al-Quraishi back to Judge Messitte. The claims had followed Titan through two changes of ownership: L-3 bought the company, and the business was then included in Engility, the government-services company L-3 Communications spun off. In 2012 Engility paid $5.28 million to settle with the former detainees, who had claimed mistreatment at Abu Ghraib and other U.S.-run detention sites in Iraq. Burke negotiated the settlement, and on October 10, 2012, Messitte approved the plaintiffs’ voluntary dismissal of the case. Engility disclosed the payment in a filing with the Securities and Exchange Commission, and Baher Azmy of the Center for Constitutional Rights said each of the Iraqis received a portion of the money and that the parties had agreed to keep the details confidential.

The Center for Constitutional Rights called the settlement “the first positive resolution to a U.S. civil case challenging detainee treatment outside the United States.” No court tried the detainees’ allegations against L-3 or Nakhla. In 2015 Burke wrote about the litigation for the Journal of the Maryland Association for Justice, under the title “Litigating Outside the Box: Seeking Justice for the Abu Ghraib Torture Victims.”

A Colonel’s Daughter Leaves Corporate Defense

Burke was born on an Army installation in Würzburg, Germany. Her father, Col. Frank Burke, served tours in Korea and Vietnam, where he was an assistant to Gen. William C. Westmoreland. Her mother, Mary Burke, was a nurse practitioner who taught nursing at Catholic University. The family lived in Oklahoma, Kansas, Denmark, and finally Northern Virginia, and Burke and her two sisters were trained to answer the telephone with the words “Colonel Burke’s quarters.”

Burke graduated from Georgetown’s School of Foreign Service in 1984 and in 1987 from Catholic University’s Columbus School of Law, which gave her its faculty award for the highest academic average. She joined Covington & Burling in Washington that year and stayed until 2001, leaving only for a year, from 1997 to 1998, to work as a trial attorney on civil fraud cases at the Justice Department. Then came Mintz Levin, a year as vice president and legal counsel at Tenet, and two years at Montgomery McCracken Walker & Rhoads in Philadelphia. She defended white-collar health-care fraud cases, and her clients included IBM and Microsoft. Burke calls the lawyer she was then a “regular corporate defense attorney.”

Her human-rights work—what she calls “human rights-y stuff”—had always been done on the side. After September 11, 2001, a Washington Post article by Bob Woodward quoted an American official warning that the “gloves are off” in the response to terrorism. Burke has recalled that the article got to her. Her concern about the possibility of government-sanctioned torture led her to represent detainees from Abu Ghraib prison. Some partners at Montgomery McCracken objected to that work, and in 2005 she left the firm and started her own. In 2013 she described her motives, laughing at herself partway through: “I’ve always been interested in fairness,” and “the only thing I know how to do to help people is to sue.”

Nisoor Square and Seven Suits Against Blackwater

Burke was already suing Blackwater when she filed in Maryland. On September 16, 2007, Blackwater employees opened fire at Nisoor Square, a crowded traffic circle in Baghdad. At least seventeen Iraqis were killed and dozens were injured. Families of the dead came to Burke, and on October 11, 2007, with the Center for Constitutional Rights and Akeel, she sued Blackwater, the Prince Group, and Erik Prince in federal court in Washington in the name of the estate of Himoud Saed Abtan. The first plaintiffs were Talib Mutlaq Deewan, who was wounded in the square, and the families of three men killed there: Abtan, Usama Fadhil Abbass, and Oday Ismail Ibraheem, who among them left fourteen children, one an infant.

The complaint alleged that the convoy had already dropped off the State Department official it was guarding before it reached the square. “We allege that Blackwater personnel were not provoked, and that they had no legitimate reason to fire on civilians,” Burke said. She pointed out that one Blackwater guard had tried to stop his colleagues from firing. “We look forward to forcing Blackwater and Mr. Prince to tell the world under oath why this attack happened,” she said. The lawyers, she said, would get at “the internal corporate files, the e-mails, the memos.”

That December Burke and the Center for Constitutional Rights filed a second suit for the families of three men who, the suit alleged, were killed by Blackwater guards on September 9, 2007, at Al Watahba Square: Ali Hussamaldeen Albazzaz, who was standing outside his rug store and had a newborn child; Kadhum Kayiz Aziz, who was guarding a government building; and Sa’ad Raheem Jarallah, a fifty-three-year-old schoolteacher in Baghdad for work. Burke was lead counsel in seven lawsuits against Blackwater on behalf of Iraqis, among them survivors of Nisoor Square and the families of people killed there.

In June 2009 the plaintiffs dismissed the Washington cases and refiled them in the Eastern District of Virginia. Amended complaints in the Nisoor Square case added five more families of the dead and twenty-one more injured Iraqis, and on July 17, 2009, Judge T. S. Ellis III consolidated it with four other suits against Blackwater for pretrial discovery and briefing. Blackwater asked Ellis to bar statements about the litigation outside court. He refused on August 7.

On January 6, 2010, the parties concluded a settlement whose terms were kept confidential, and the plaintiffs withdrew their complaints; late that day Burke filed the motion asking the court to dismiss the cases. Hassan Jabir, a lawyer wounded in the Nisoor Square shooting, said: “I feel like I achieved victory against the Blackwater firm.” Burke obtained settlements from Blackwater, later renamed Academi, for sixty-eight Iraqi civilians.

Service Members, Burn Pits, and a Delaware Prison

Burke has also represented people from the military she grew up in. She led lawsuits challenging how the armed forces handled rape and sexual-assault cases, work featured in the documentary The Invisible War. In 2013 she stated the problem this way: “Military leaders say they have a zero-tolerance policy for rape, but they have a zero-tolerance policy for those who report rape.” In the KBR burn-pit litigation, brought mostly for military personnel who served in Iraq and Afghanistan, she argued both appeals in the Fourth Circuit—in October 2013 from Burke PLLC in Washington, and in May 2018 from the Law Offices of Susan L. Burke in Baltimore—with Motley Rice lawyers Frederick C. Baker and James W. Ledlie on the briefs.

In June 2021 the ACLU of Delaware named Burke its legal director. That December it sued in federal court in Delaware on behalf of prisoners at Sussex Correctional Institution, among them Isaac Montague and William Davis. Montague alleged that in September 2021 a guard, Kirk Neal, kneed him in the side of the face; that Neal and three other officers kicked and punched him and pulled his dreadlocks from his head; that one of them struck him in the face with handcuffs, leaving a permanent scar; and that another guard forced a can of pepper spray into his mouth. Davis alleged that in October 2021 Neal slammed him to the ground and kicked and punched him, that other guards joined in, and that Neal later slammed him face-first into the concrete floor of a holding cell while he was handcuffed. “The level of violence is startling and very depressing, and so we are hoping to put a stop to the ongoing violence down at Sussex Correctional Institution,” Burke said in January 2022. She added: “What happens over time is if violence becomes a majority culture, it keeps getting more and more aggravated and more, as you put it, a quick trigger. And so that’s why lawsuits are important.”

By February 2022 the suit had nineteen plaintiffs and named thirty-one more officers as defendants. Neki Gibbs alleged that Officer Ryan Maddox pepper-sprayed his face, held him down with a knee, struck his head, and kneed him in the face, opening a gash at his left eyebrow; Gibbs said he was denied stitches and now has a large permanent scar over his left eyelid. Many of the prisoners said their grievances had been ignored and that prison leaders had refused to review video that might have recorded the assaults. “The scope and the scale of the physical abuse down at SCI is just far broader than we had anticipated when we first filed,” Burke said. “We’ll get into discovery and we’ll be able to see all the files and see all the videotapes.” The defendants asked the court to break the case apart, describing thirty-nine separate incidents. In August 2023 the court refused, finding that the claims “more closely resemble a pattern of related abuse rather than dissimilar conduct.”

Harry Samuel and Delaware’s Prison Medical Contractors

Harry Samuel was sixty-one and serving a long sentence at the James T. Vaughn Correctional Center near Smyrna when, in November 2022, he began to bleed. He filed sick calls and grievances. A physician assistant suggested diverticulosis and prescribed fiber and a stool softener. When he collapsed from blood loss in the prison infirmary, the lawsuit alleges, nobody reacted for ten minutes. A Bayhealth doctor told him he needed a specialist and surgery; the lawsuit alleges that the prison system’s medical contractor, Centurion of Delaware, provided neither. In July 2023, after VitalCore Health Strategies took over the contract, a bone scan and a colonoscopy found terminal prostate and rectal cancer, and VitalCore, the lawsuit alleges, told him he would not be treated.

On October 11, 2023, the ACLU of Delaware sued Centurion, its former parent Centene, VitalCore, the state’s current and former corrections commissioners, and its prison medical director, Dr. Awele Maduka-Ezeh, on behalf of Samuel, Christopher Robert Desmond, Arthur Govan, and a proposed class of prisoners with serious medical conditions. Burke is among the plaintiffs’ lawyers. Desmond, enrolled in the prison’s chronic-care program since 1991, alleged that officials refused his prescribed medications for forty-seven days and used the denial as discipline. The complaint argues that the Eighth and Fourteenth Amendments require adequate medical care for prisoners whether the people providing it are state employees or private contractors. In September 2024 the district court, adopting the recommendation of Magistrate Judge Sherry R. Fallon, refused to strike the class allegations and let the constitutional claims against the medical companies proceed.

Samuel died on April 21, 2024, and Orlando Samuel and Mona Samuel Sampson, the personal representatives of his estate, took up his claims. In July 2026 Dr. Maduka-Ezeh appealed to the Third Circuit. Burke entered her appearance there on July 10, and she represents Desmond, Govan, and Harry Samuel’s estate in the appeal.