On September 28, 2010, ERI submitted an amicus brief to the U.S. Court of Appeals for the Fourth Circuit, supporting the plaintiffs’ claims in L-3 Services, Inc., v. Al-Quraishi. Plaintiffs allege that a U.S. military contractor, L-3 Services (formerly Titan Corp.), and one of its employees tortured and otherwise abused Plaintiffs, who were detained in military prisons in Iraq. Previously, a federal district court in Maryland held that the plaintiffs’ claims could proceed, but L-3 appealed.
Before the 4th Circuit Court of Appeals, the Al-Quraishi case was heard together with Al Shimari v. CACI International Inc., a case that similarly involved tort claims against a U.S. military contractor (CACI) for torture and other abuses occurring in Iraqi prisons. That case also reached the 4th Circuit on appeal from a district court judgment in favor of the plaintiffs. A divided three-judge panel of the 4th Circuit granted the defendants’ appeal in both cases and dismissed the suits, for several reasons.
Plaintiffs in both cases asked the Fourth Circuit to rehear the case, and the court granted rehearing en banc, in which the earlier decision of the three-judge panel is vacated and the case is heard again before all fourteen active judges. The cases were consolidated for the rehearing argument, and on December 20, 2011, ERI submitted a second amicus brief before the en banc court addressing both cases.
ERI’s briefs address a key issue that is important for the future of transnational litigation as a vehicle for obtaining justice for victims of human rights abuses. The briefs argue that claims brought by the victims under state law should not be dismissed due to supposed interference with U.S. foreign policy. Most of the victims’ claims are ordinary tort claims – like assault and battery – and there is no barrier for a court to hear a case alleging such claims, whether the abuses occurred in the United States, or in Iraq. Ordinary tort claims typically do not implicate serious foreign policy concerns.
In Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), the U.S. Court of Appeals for the District of Columbia Circuit dismissed similar claims against the same defendant, finding in part that ordinary state law tort claims would interfere with U.S. foreign policy prerogatives. L-3 and CACI’s argument in Al-Quraishi and Al Shimari was based on Saleh; ERI’s brief argued that the D.C. Circuit was mistaken and that the dissent in Saleh was correct in concluding that existing foreign affairs doctrines do not permit dismissal of the claims.
On May 11, 2012, the en banc panel, in an 11-3 decision, dismissed the defendants’ appeal for lack of appellate jurisdiction and remanded the case back to the district court.
On October 10, 2012, the district court approved the Al-Quraishi plaintiffs’ voluntary dismissal of the case after the parties in Al-Quraishi v. L-3 Services, Inc., reached a confidential settlement.
Meanwhile, the Al-Shimari case returned to the district court in the Eastern District of Virginia.
Following the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum (Shell), which limited the use of the ATS for abuses that occur outside the United States in cases without strong connections to the United States, the district court dismissed the ATS claims again.
In a landmark decision in 2014, the Fourth Circuit reversed, reinstating the ATS claims against CACI. Applying what is known as the “touch and concern” extraterritoriality analysis established in Kiobel, the Fourth Circuit concluded that the claims “displaced” the presumption against extraterritoriality given the substantial connections to the United States, including the fact that the defendant was a U.S. corporation, the torture and other abuses were carried out by U.S. citizens, and the company was working at a U.S. military base during U.S. occupation of Iraq, and pursuant to a contract with the U.S. government to provide interrogations services that was executed in the United States. The court also emphasized the alleged misconduct by CACI managers in the US, as well as the critical US interest in providing redress for victims of torture.
In 2018, after the Supreme Court’s decision in Jesner v. Arab Bank, another ATS case, CACI sought again to dismiss the ATS claims, arguing Jesner further restricts the ATS in cases involving misconduct outside the U.S. The district court properly rejected those arguments, concluding that the ATS claims against CACI were consistent with Congress’s objectives in enacting the ATS and presented none of the foreign relations and separation of powers concerns that had led the Supreme Court to dismiss the ATS claims in Jesner, as those concerns were specific to the unique problems that arise in cases against foreign corporations for foreign conduct.
Although the Al Shimari case was set to go to trial in April 2019, after more than a decade of litigation, the trial was put on hold when CACI filed another appeal with the Fourth Circuit in April, raising a wide range of different issues, most of which have already been decided. Among them is the question of whether the Kiobel “touch and concern” standard remains the proper standard for evaluating ATS claims involving extraterritorial conduct, and whether the district court properly applied the Supreme Court’s more recent Jesner decision.
EarthRights filed another amicus brief in May 2019 in support of the Plaintiffs that addresses the latest ATS arguments made by CACI. We argue that the Kiobel standard remains the proper test and that there is no reason to revisit the Fourth Circuit’s 2014 ruling. Our brief also addresses the Supreme Court’s decision in Jesner, which made clear that 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.
Oral argument before the Fourth Circuit is scheduled for July 2019.