CJA has intervened on three occasions in Al-Shimari v. CACI as amicus curiae in support of the plaintiffs, four Iraqi civilians who were tortured in Abu Ghraib prison prior to their release without charge. The case was brought by the Center for Constitutional Rights in federal court against the private government contractor CACI Premier Technology, Inc., and its parent company, CACI International, Inc., which provided interrogation services at Abu Ghraib prison. All four victims alleged that they were brutally beaten and subjected to both physical and psychological torture while in detention at Abu Ghraib. Each victim was subsequently released without charge. The plaintiffs alleged under the Alien Tort Statute (ATS) that CACI entities directly participated in (and indirectly supported) the torture and other abuse they suffered.
More background on the case is available at the Center for Constitutional Rights.
CJA’s Amicus Brief in 2013 on Behalf of ATS Plaintiffs
In late June 2013, the District Court for the Eastern District of Virginia dismissed plaintiffs’ claims in Al-Shimari v CACI based on a reading of Kiobel v. Royal Dutch Petroleum as presenting a categorical bar against claims arising from conduct occurring outside of U.S. territory.
On November 5th, 2013, CJA submitted an amicus brief on behalf of thirteen of our clients and Dolly Filartiga, with the assistance of the UNROW Human Rights Impact Litigation Clinic at American University. Our brief argued that the district court’s dismissal of the case on Kiobel grounds was in error; Kiobel does not impose a categorical bar on ATS claims. Rather, the rule announced in Kiobel requires a two-step analysis: First, courts must determine whether an ATS claim is being applied to domestic or extraterritorial conduct, because only a claim based on extraterritorial conduct will trigger the presumption against extraterritorial application of the statute. Second, if the claim is based on extraterritorial conduct, courts must then determine whether the claims nonetheless “touches and concerns” the United States with sufficient force to rebut the presumption. Because the Al Shimari court failed to conduct this two- step analysis, we argued that the court’s ruling would run the risk of eliminating even those claims that deeply touch and concern the United States, including claims against U.S. residents. oral argument was held on March 18, 2014, in Richmond, Virginia.
On June 30, 2014, in a landmark opinion, the Fourth Circuit Court of Appeals held that the district court erred in dismissing plaintiffs’ ATS claims on Kiobel grounds. The court rejected the lower court’s categorical bar against ATS claims arising from extraterritorial conduct. Instead, the court prescribed a “fact-based inquiry” to determine whether “the plaintiffs’ claims ‘touch and concern’ the territory of the United States,” and it looked to Justice Bryer’s concurrence in Kiobel for guidance on the inquiry. Under Kiobel, “courts must consider all the facts that give rise to ATS claims, including the parties’ identities and their relationship to the causes of action.” On the facts presented, the court held that the ATS claims met this fact-based inquiry standard. The court also noted that the United States’ interest in eradicating torture informs the analysis: “The political branches already have indicted that the United States will not tolerate acts of torture, whether committed by United States citizens or by foreign national.” The Fourth Circuit vacated the district court’s judgment as to all plaintiffs’ claims, but it remanded for analysis on whether the claims presented non-justiciable political questions.
With this ruling, the Fourth Circuit became the first appellate court to reject the mechanical application of Kiobel. The decision strongly suggests that the ATS will remain a viable tool for human rights litigation.
CJA’s Amicus Brief in 2015 on Behalf of ATS Plaintiffs
Although the Fourth Circuit Court of Appeals affirmed jurisdiction over plaintiffs’ Alien Tort Statute claims, on June 18, 2015, the district court dismissed the case on remand, this time on political question grounds. The judge based his decision on a finding that the case would require an impermissible review of sensitive military decisions, and that a “cloud of ambiguity” existed around the definition of torture at the time the plaintiffs were detained at Abu Ghraib from 2002 to 2003. Namely, the court cited a disruption in the definition of torture raised by the Ninth Circuit decision in Padilla v. Yoo, a case against former Deputy Assistant U.S. Attorney General John Yoo which found that although the illegality of torture was beyond debate in 2001-2003, it was not clearly established at that time that the specific enhanced interrogation techniques used against the plaintiff in that case amounted to torture. Lastly, the Al-Shimari court dismissed plaintiffs’ claims for cruel, inhuman, and degrading treatment for similar problems of ambiguity, and found that a determination of war crimes would also result in a review of sensitive military decisions, amounting to a non-justiciable political question.
In September 2015, CJA filed an amicus brief along with co-counsel at the UNROW Human Rights Impact Litigation Clinic at American University on behalf ten CJA clients that successfully litigated similar claims under the Alien Tort Statute and Torture Victim Protection Act. CJA and our clients, all of whom successfully litigated torture claims in U.S. courts, argued that the definitions for torture, war crimes, and cruel treatment are clear, and these definitions have been relied on by U.S. courts to adjudicate such claims for decades. U.S. courts have had no difficulty in discovering judicially manageable standards for torture, cruel treatment, and war crimes claims and the standard for adjudicating such claims under the Alien Tort Statute existed well before 2004, beginning with the landmark case Filartiga v. Pena-Irala in 1980.
This standard reflects the longstanding body of international jurisprudence developed since the Nuremberg trials after World War II to present day. Accordingly, refusing to adjudicate these well-established human rights claims would deprive survivors of egregious human rights abuse, such as our clients, of an important remedy and go against decades of domestic and international precedent for providing justice to victims of such harm.
CJA’s Amicus Brief in 2019 on Behalf of ATS Plaintiffs
On February 21, 2018, the district court dismissed the direct liability counts against CACI but allowed the claims that CACI conspired to engage in and aided abetted torture, cruel, inhuman, or degrading treatment, and war crimes to proceed. In doing so, the court ruled that plaintiffs’ factual allegations against CACI describe conduct that represents violations of international law norms that are cognizable under the Alien Tort Statute. Following that ruling, CACI brought a third-party complaint against the United States of America, arguing that the government was ultimately responsible for plaintiffs’ harms. On March 22, 2019, the district court granted the United States’ motion to dismiss CACI’s complaint against it and denied CACI’s motion to dismiss Plaintiffs’ Alien Tort Statute claims. The judge found that CACI’s claims against the United States were barred by a settlement agreement they had entered into. In addition, the judge rejected CACI’s argument that it enjoyed a derivative form of the United States’ sovereign immunity on the basis that sovereign immunity does not protect the United States from claims for violations of jus cogens norms such as torture. CACI appealed the court’s derivative sovereign immunity decision.
On May 21, 2019, CJA filed an amicus brief in support of Plaintiffs-Appellees. CJA argues that CACI erroneously conflates the United States’ sovereign immunity, upon which CACI predicates its own derivative claim of immunity, with the immunity of foreign state actors. As detailed in the submission, the immunity of foreign state actors and the immunity of the United States as the sovereign are two distinct concepts animated by separate underlying principles and governed by divergent bodies of law. CJA urged the Fourth Circuit Court of Appeal to be cognizant of these distinctions and not to disturb the settled jurisprudence that governs the immunity of foreign state actors. CJA also argued that settled jurisprudence foreclosed CACI’s assertion of derivative sovereign immunity. Finally, the submission requested that the Appeals Court reject CACI’s mischaracterization of the nature of jus cogens norms, including the prohibition against torture.
The Fourth Circuit is reviewing the briefs on appeal and a decision is currently pending.