As Jonathan mentioned in his recent post, the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum (Shell) left much to be answered as to how courts should handle Alien Tort Statute (ATS) claims arising outside of the United States. In Kiobel the Supreme Court dismissed a case involving foreign plaintiffs, foreign defendants, and foreign conduct. But the Supreme Court didn’t tell lower court judges what to do in cases that do not involve Kiobel’s “foreign cubed” set of facts but do involve claims arising abroad – other than to state that they must “touch and concern” the United States “with sufficient force.”
Friday morning, I attended one of the first hearings in an ATS case since Kiobel and saw firsthand how little guidance the Kiobel decision provides to lower court judges hearing ATS claims that arise outside of the United States—an indication of how little the Supreme Court actually decided in Kiobel. The case was Al Shimari v. CACI Premier Technology and involves ATS and common law claims against a U.S. military contractor (CACI) for alleged torture and other abuses occurring in Iraqi prisons as a part of a conspiracy with the U.S. government, and resulting from decisions made in Virginia.
During the hearing, district court judge Bruce Lee questioned both defense counsel and plaintiffs’ counsel (Baher Azmy, Legal Director of the Center for Constitutional Rights) about what they understood the Supreme Court to mean when it stated that the principles underlying the presumption against extraterritoriality should apply to ATS claims arising abroad. The judge also wanted to know what Kiobel’s “touch and concern” standard should be taken to mean. In a somewhat exasperated fashion, Judge Lee exclaimed to plaintiffs’ counsel at one point, “I am a trial court judge . . . and the Court didn’t tell me what to do.” The judge also raised concerns that if Kiobel were read in the broadest manner possible, as the CACI defendants asked him to do, such a reading could create a “safe haven” in the United States for those who commit atrocities around the world.
In the coming months, lower court judges like Judge Lee will have to answer such questions and give meaning and content to the Supreme Court’s phrase “touch and concern . . . with sufficient force.” Both plaintiffs’ and defense counsel will make their best arguments to imbue the language of the Supreme Court with their preferred meaning. Which arguments will win the day has yet to be decided. What is clear however, and particularly in light of today’s hearing, is that the Kiobel Court was ruling in extreme circumstances on an unusual set of facts—generating a narrow holding that, as Justice Kennedy explained in his concurrence, leaves “open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”