Earlier this week, a US district court judge dismissed Al-Shimari v. CACI Premier Technology Inc., a case against a US private contracting company brought by the Center for Constitutional Rights on behalf of four Iraqis who were tortured at Abu Ghraib prison. With disturbing irony, the decision, which further restricts access to the courts for victims of corporate human rights abuses like torture, came down on the United Nations International Day in Support of Victims of Torture.
The district court’s ruling is the first significant decision to evaluate the impact of the Supreme Court’s holding in Kiobel v. Royal Dutch Petroleum on the future of the Alien Tort Statute (ATS). Having attended the hearing, I’ll admit I wasn’t optimistic, but the district court’s ruling is deeply troubling for a number of reasons.
Not many things about the Supreme Court’s decision in Kiobel were clear, but one thing was: the decision was not a categorical bar against all ATS claims based on conduct that occurred abroad. The majority was clear that the presumption against extraterritorial application of the ATS could be “displace[d]” in cases that “touch and concern” the United States with “sufficient force.” This was almost certainly the only way to ensure the opinion authored by Chief Justice Roberts obtained a majority since Justice Kennedy – the necessary fifth vote – clearly did not support a categorical bar. In his concurrence, Justice Kennedy emphasized that the Court properly left “a number of significant questions regarding the reach and interpretation” of the ATS. He recognized that other cases alleging serious violations of international law would arise that would not be covered “by the reasoning and holding of today’s case” and in those circumstances, “the proper implementation of the presumption … may require further elaboration and explanation.” Only Justices Alito and Thomas believed that all the conduct giving rise to a cause of action must take place on US soil. This hardly sounds like a Court that has created a bright-line rule. Yet the district court, without ever discussing any of the concurring opinions in the case, concluded that Kiobel barred all ATS claims based on conduct that happened abroad unless and until Congress acts to say otherwise.
But the facts of this case are remarkably different than those in Kiobel. CACI is a US-based corporation that is alleged to have conspired with the US military to commit war crimes and torture in US-occupied Iraq at Abu Ghraib prison, which was under the total control of the US at that time. The claims challenge conduct undertaken by US citizens that violate US military and legislative prohibitions against torture and mistreatment of detainees. The Plaintiffs’ lawyers therefore argued that these claims satisfied the Kiobel “touch and concern” test so as to overcome the presumption. But the district court threw out the case without applying the test, dismissing the “touch and concern” language of the opinion as merely “textually curious.”
What really baffles me is that the district court actually went on to hold that the presumption against extraterritoriality was “only rebuttable by legislative act, not judicial decision.” Anyone who has watched Law & Order knows that isn’t how a presumption works. As the attorney for the Plaintiffs pointed out at the hearing, if overcoming presumptions required an act of Congress, then overcoming the presumption of innocence would require going to Congress every time someone was charged with a crime.
The district court also incorrectly treated Kiobel as an issue of jurisdiction, when it is in fact a merits question. We’ve explained why this is incorrect elsewhere so I won’t belabor it here, but this seemingly technical distinction is an important one.
I can’t help but see this as an abdication of judicial responsibility. At oral argument, the district court judge was obviously frustrated that the Supreme Court hadn’t given the trial courts more guidance in how to deal with ATS cases after Kiobel. But instead of working through the reasoning in Kiobel, the district court simply got rid of the case and said this whole mess is Congress’ problem now. But if the courts aren’t going to protect the rights of the most vulnerable, who will?