Court of Appeals Holds That Alleged U.S. Connections to Torture at Abu Graib Prison Overcome Presumption of no extraterritorial Application of ATS

The World in U.S. Courts: Summer 2014 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA)/Victims of Trafficking and Violence Protection Act (VTVPA)/Foreign Sovereign Immunity Act (FSIA)

al Shimari v. CACI Premier Technology, Inc., U.S. Court of Appeals for the Fourth Circuit, June 30, 2014

Plaintiffs, not U.S. citizens, were prisoners in the Abu Graib prison in Iraq who claim to have been abused by interrogators employed by CACI, a U.S. corporation. Their complaint, seeking damages against CACI and certain of its employees under the ATS and state common law, was transferred to the U.S. District Court in Maryland and dismissed. The case was appealed to the U.S. Court of Appeals for the Fourth Circuit.

The Court of Appeals addressed the question whether the ATS, a jurisdictional statute, supported a cause of action “for tortious conduct occurring outside the United States.” The issue had been addressed by the U.S. Supreme Court in 2013 in Kiobel v. Royal Dutch Petroleum Co., which applied a presumption against the extraterritorial application of the ATS in a case where all of the relevant conduct took place outside the U.S. The Court of Appeals read Kiobel, however, as authorizing U.S. suits for “claims” that “touch and concern” the U.S. in a substantial way. In the case at bar, the Court of Appeals concluded that a sufficient connection to the U.S. was established because the defendant CACI was a U.S. corporation alleged to have been acting pursuant to a contract with the U.S. Government, the interrogators alleged to have committed the tortious acts were hired in the U.S., and CACI managers in the U.S. were alleged to have known about and tried to suppress the claimed abuse. The Court of Appeals’ decision reflects efforts by plaintiffs’ to escape the holding of Kiobel through detailed pleading of potential links between their claims and the U.S.

The Court of Appeals also considered the defense that the claims could not be heard because they raised “political questions,” but concluded that the case should be returned to the district court so that the factual record could be developed further.

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