Fight to Hold Contractor Accountable for Abu Ghraib Detainee Abuses Continues

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This week, EarthRights filed an amicus curiae (“friend of the court”) brief supporting a lawsuit by Iraqi torture victims against the U.S. military contractor company CACI. The case, Al Shimari v. CACI, filed by our friends at the Center for Constitutional Rights, seeks to hold CACI accountable for allegedly directing and participating horrific abuses, including torture, at Abu Ghraib military prison in Iraq, where it was hired by the U.S. government to provide interrogation services.

Although the case was scheduled to go to trial in April, after more than a decade of litigation, CACI filed a last ditch appeal, seeking to re-litigate a wide range of issues, most of which have already long been decided (we’ve submitted briefs in some of those earlier appeals, too). Among them is the question of when claims may be filed under the Alien Tort Statute (ATS) for violations of international law arising out of abuses that take place outside the United States, which turns on the proper understanding of the Supreme Court’s decision in Kiobel v Royal Dutch Petroleum (Shell) and Jesner v. Arab Bank. (EarthRights also submitted amicus briefs in both cases.)Our brief explains the proper understanding of both Kiobel and Jesner, and argues the Fourth Circuit has already correctly decided the relevant issues in prior rounds of appeals.

As the Supreme Court made clear in Jesner, the objective of the First Congress in enacting the ATS in 1789 was to provide for the vindication of international law violations in circumstances where the U.S. had an obligation to provide a remedy and the failure to provide one could lead other nations to hold the U.S. accountable and lead to international discord. Our brief argues that this case – against a U.S. defendant, based on the wrongful conduct of U.S. citizens, against foreign nationals who were in U.S. custody, during a period of U.S. occupation – is a paradigmatic case of exactly the type of abuses for which the ATS was intended to provide a remedy, and where the failure to do so implicates U.S. obligations under international law.

The Kiobel case concerned the “presumption against extraterritoriality,” a statutory interpretation tool that assumes Congress does not intend to regulate conduct outside the United States unless it says so expressly, based largely out of a concern for generating a conflict between U.S. law and foreign laws. In Kiobel, the Supreme Court concluded that the principles underlying the presumption apply to the ATS, even though the ATS is strictly a jurisdictional statute (in other words, the ATS isn’t the typical type of statute the presumption applies to because it does not regulate conduct; in fact, the wrongs relevant to the ATS are ones other nations recognize as actionable.) It went on to hold that cases like Kiobel – where the claims are brought by foreign plaintiffs, against foreign defendants, based on violations occurring abroad, without any clear connection to the United States (sometimes called “foreign cubed” cases) – were impermissibly extraterritorial in nature. But the Court made clear that other extraterritorial ATS cases could proceed, if the claims “touch and concern” the United States with “sufficient force” to “displace” the presumption.

In a landmark decision in 2014, the Court of Appeals for the Fourth Circuit Court concluded that the ATS claims in Al Shimari had the substantial U.S. connections required by Kiobel, including the fact that the defendant was a U.S. corporation, the claims were based on conduct by U.S. citizens, CACI was acting in Iraq under a contract executed in the United States with the U.S. government, as well as the clear U.S. interests in ensuring redress for victims of torture, among other connections to the U.S. Although CACI seeks to relitigate this issue by arguing the Supreme Court has subsequently changed the standard used to evaluate ATS claims, our brief shows there is no reason to do so.

The Court of Appeals for the Fourth Circuit will hear oral argument in the appeal in July.

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Click here for more information about Al Shimari v. CACI International.

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