Blog: Martin Flaherty
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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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