CJA is supporting the efforts of victims of human trafficking in Iraq to hold their abusers liable in U.S. court under the Alien Tort Statute (ATS).
On October 1, 2015, CJA and pro bono co-counsel at Sanford Heisler Kimpel, LLP submitted an amicus brief to the U.S. Court of Appeals for the Fifth Circuit in Adhikari v. Kellog Brown & Root, Inc. (KBR). The KBR case involves Nepali workers who were taken against their will to work for a U.S. military contractor in Iraq, all but one of whom were killed by insurgents on the way to the U.S. base where they were to work.
Filed on behalf of former CJA clients who successfully sued human rights abusers under the ATS, our brief argues that the Supreme Court intended federal courts to hear such cases, because the abuses in question deeply touch and concern the United States and our values and interests.
Originally filed in 2008, the KBR case alleges that 13 Nepali men between the ages of 18 and 27 were recruited in Nepal to work as kitchen staff in hotels and restaurants in Amman, Jordan. But once the men arrived in Jordan, their passports were seized and they were told they were being sent to a military facility in Iraq. As the men were driven in cars to Iraq, they were stopped by insurgents. Twelve were kidnapped and later executed. The thirteenth man survived and was forced to work in a warehouse in Iraq for 15 months before returning to Nepal. The plaintiffs argued that Daoud, KBR and their co-conspirators were parties to a trafficking enterprise. They further alleged that both Daoud and KBR were responsible for the trafficking scheme – from the moment of recruiting the men in Nepal until their arrival in Iraq.
On March 24, 2015, Judge Keith Ellison of the U.S. District Court for the Southern District of Texas dismissed the Nepali victims’ claims, which alleged that KBR and several of its corporate alter egos violated international and U.S. laws against human trafficking. The District Court dismissed the victims’ international law claims under the ATS, holding that the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum effectively barred any ATS claim where international law was violated outside of the United States.
CJA’s Amicus Brief
Our amicus brief argues that the district court was wrong to dismiss the ATS claims because it misread the Supreme Court’s opinion in Kiobel. The Supreme Court instructed lower courts to examine a range of facts to determine whether an ATS plaintiffs’ claims as a whole are sufficiently tied to the United States to warrant being tried in a U.S. court. In the Supreme Court’s words, such claims must “touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritoriality.”
We argue that this “touch and concern” test is a broader legal rule. It requires courts to look beyond the fact that the violation occurred overseas and consider the nationality or residence of the defendant, the lack of any conflict with a foreign state’s jurisdiction, or the case’s impact on national interests. These factors can establish a sufficient link to the United States for the case to be heard in this country.
CJA cautions the Court of Appeals that if it were to adopt a categorical bar against ATS claims involving atrocities committed overseas, it would deny a day in court to survivors like CJA’s clients. These survivors would be denied justice even when their abusers are found living in the United States, enjoying the protection of our laws while seeking immunity from our courts. The Supreme Court never intended that result when it decided Kiobel.
CJA Amicus Brief