District Court Finds Claim Alleging Torture by a US CIA Contractor Not Barred by the “Political Question” Doctrine or Based on Improper Extraterritorial Application of the ATS

The World in U.S. Courts: Summer and Fall 2016 - Alien Tort Statute (ATS)/Torture Victims Protection Act (TVPA)/Anti-Terrorism Act (ATA)

Salim v. Mitchell,  U.S. District Court for the Eastern District of Washington, April 28, 2016

The plaintiffs, citizens of non-U.S. countries, brought claims under the ATS alleging that they were abducted and tortured by US-led forces in Afghanistan and Pakistan over a period of years.  The defendants are alleged to be CIA contractors who designed and oversaw the torture described in the complaint.

The defendants moved to dismiss the complaint.  Among other things, they argued that the claims involved “political questions” and thus were not amenable to judicial resolution.  The Court disagreed, noting specifically that “torture” is now understood to be prohibited by “the law of nations,” and that “torture” is defined in various U.S. statutes so as to allow the issue to be adjudicated.  In so ruling, the Court acknowledged some disagreement among the courts on whether analogous claims involving contractors and governmental or military detention could proceed to trial.

The Court also rejected the argument that the plaintiffs were seeking an impermissibly extraterritorial application of the ATS.  It observed that the U.S. Supreme Court’s Kiobel decision found the ATS did apply extraterritorially, but would support actions based on facts that “touch and concern the territory of the United States.”  The Court found that standard met in the case at bar, with allegations that the defendants were U.S. citizens, committed the acts alleged through a company based in the U.S., devised the interrogation techniques at issue in the U.S., and proceeded pursuant to contracts with the US Central Intelligence Agency entered into domestically.

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