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July 2, 2014
Fourth Circuit’s Post-Kiobel Ruling Revives ATS Claims Against U.S. Corporation for Violations Committed Abroad
Posted by Tyler Giannini and Susan Farbstein
On Monday, the Fourth Circuit Court of Appeals ruled that the presumption against extraterritoriality in Alien Tort Statute (ATS) cases, established by the April 2013 U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co., does not bar claims against a U.S. contractor for torture and mistreatment of foreign nationals in Iraq.
The Al Shimari v. CACI ruling is a major decision in the ongoing battle over the meaning and interpretation of Kiobel. Kiobel held that there is a presumption against extraterritoriality in ATS cases unless the “claims touch and concern the territory of the United States with sufficient force,” in which case the presumption can be displaced. In Kiobel, the Supreme Court found the “mere corporate presence” of the defendant in the United States did not overcome the presumption.
The Fourth Circuit compared the factual circumstances in Kiobel with those in Al Shimari, and concluded that the corporate defendant had a much more significant connection to the United States than mere presence. In so ruling, it became the first appellate court to hold that the plaintiffs’ claims sufficiently “touch and concern” U.S. territory to displace the presumption.
In the wake of the Kiobel decision, lower courts across the country have wrestled with how to interpret the new “touch and concern” standard given the limited guidance provided by the Supreme Court. Some courts have avoided the complexities of the Kiobel presumption altogether. However, the Fourth Circuit embraced the challenge:
Although the “touch and concern” language in Kiobel may be explained in greater detail in future Supreme Court decisions, we conclude that this language provides current guidance to federal courts when ATS claims involve substantial ties to United States territory. We have such a case before us now, and we cannot decline to consider the Supreme Court’s guidance simply because it does not state a precise formula for our analysis. Continue Reading…
November 6, 2013
Posted by Betsey Boutelle, JD '14
The International Human Rights Clinic filed an amici curiae brief yesterday on behalf of legal historians in one of the first major Alien Tort Statute (ATS) cases to reach a court of appeals since the U.S. Supreme Court ruled in Kiobel v. Royal Dutch Petroleum Co in April.
The case, Al Shimari v. CACI Premier Technology, Inc., alleges that employees of CACI, a private military contractor, participated in the torture and degrading treatment of detainees at Iraq’s Abu Ghraib prison in 2003 and 2004. The four plaintiffs in the case were detained in Abu Ghraib during that time and allege that they suffered abuses at the express command of several CACI employees operating in the prison.
In June, a Virginia district court dismissed the plaintiffs’ claims. The court believed that Kiobel foreclosed ATS liability for international law violations committed outside the United States—even when the defendants are American. The Al Shimari plaintiffs have now appealed to the Fourth Circuit, arguing that Kiobel’s limit on extraterritorial ATS claims does not apply, because their case involves U.S. defendants operating in American-controlled territory.
Six professors of legal history signed the amicus brief, arguing that the history and purpose of the ATS clearly indicates that the Founders would have allowed claims against U.S. citizens. Jurisprudence dating back to the 17th century shows that sovereign nations were expected to provide a remedy when their subjects committed violations of the law of nations, wherever the wrongs occurred.
The Founders knew the consequences of condoning violations by U.S. actors. Failure to provide redress could cause conflict and even war, and thus threaten the young nation. The ATS was one important mechanism to help avoid conflict and to bring the fledgling Republic in line with the expectations of the community of nations. In the brief, amici argue that to exclude violations by U.S. actors, wherever they might occur, would contravene the aims of the Founders when they enacted the statute.
The brief was signed by professors of legal history William R. Casto (Texas Tech University School of Law), Martin S. Flaherty (Fordham Law School), Nasser Hussain (Amherst College), Stanley M. Katz (Princeton University), Michael Lobban (London School of Economics), and Jenny S. Martinez (Stanford Law School).
Led by Clinical Professor Tyler Giannini and Poppy Alexander, JD ’12, clinical students Betsey Boutelle, JD ’14, Avery Halfon, JD ’15, Lynnette Miner, JD ’14, Ariel Nelson, JD ’15, and Oded Oren, JD ’15, all contributed many long hours to the effort.
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