In all the flurry surrounding last month’s decision in Kiobel v. Royal Dutch Petroleum, perhaps the clearest takeaway has been that the lower courts have their work cut out for them in applying the Supreme Court’s rule to actual cases where people have suffered abuses like torture, war crimes, and crimes against humanity. The majority opinion, authored by Chief Justice Roberts, created a new presumption that claims arising out of human rights abuses that occurred abroad are not actionable under the Alien Tort Statute – a presumption that can be overcome in cases that “touch and concern the territory of the United States . . . with sufficient force.”
We know that “mere corporate presence” of a foreign multinational company in the United States is not sufficient to overcome the new Kiobel presumption, but we also know that only Justices Alito and Thomas believed that all the conduct giving rise to a cause of action must take place on U.S. soil. There is a broad spectrum of scenarios between the two extremes, and many of them are teed up for briefings in the coming weeks and months.
For example, this Friday, a judge in Virginia will hear arguments on how the Kiobel presumption applies in Al Shimari v. CACI Premier Technology, a case involving torture by a U.S. government contractor at the Abu Ghraib prison in Iraq. According to the plaintiffs:
“Unlike in Kiobel, Plaintiffs’ claims arose out of conduct that occurred in a U.S. occupied territory and detention facility over which the United States had total authority; unlike in Kiobel, Plaintiffs’ claims challenge conduct undertaken by U.S. citizen employees of a U.S. corporation (domiciled in Virginia) in conspiracy with U.S. military personnel in carrying out (unlawfully) interrogations for the United States government and in violation of fundamental U.S. military and legislative prohibitions against torture and abuse of detainees. Indeed, the very grant of immunity from Iraqi law given to contractors such as CACI by the U.S. government required the application of U.S. law to CACI’s conduct abroad.”
Other pending cases present similarly compelling arguments for the recognition of a cause of action under the Alien Tort Statute. For example, the Apartheid cases involve U.S. companies that helped a country that was under U.S. sanctions to murder, torture, and forcibly de-nationalize anti-apartheid activists. In the Chiquita litigation, plaintiffs have sued a U.S. company for making decisions (in the United States) to assist armed groups that were designated by the U.S. as terrorist organizations, for which they were prosecuted and fined by the U.S. Department of Justice. These groups carried out thousands of killings during Colombia’s civil war, in part to stifle labor unrest that drove up production costs at Chiquita’s plantiations. In Samantar, the defendant is the former Minister of Defense of Somalia, a failed state, who has taken refuge in the United States, and who killed thousands by ordering air strikes on Somalia’s second largest city in order to subdue a rival clan.
All these cases concern the interests of the United States, fall comfortably under international law limitations on jurisdiction, and pose limited risks of antagonizing foreign powers. Is that enough for lower courts to find that plaintiffs have overcome the Kiobel presumption? On the facts of these cases, the answer should be yes, but we can assume that the courts will give many answers to the question.