United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
issue before the Court is the legal standard under which
plaintiffs' claims under the Alien Tort Statue
("ATS"), 28 U.S.C. § 1350, will be analyzed
for purposes of determining whether the Court has subject
matter jurisdiction over those claims. At the instruction of
the Court [Dkt. No. 571], both parties have submitted briefs
explaining their views regarding the appropriate legal
framework. [Dkt. Nos. 576 and 577]. This Memorandum Opinion
addresses 1) whether claims of torture; cruel, inhuman, and
degrading treatment ("CIDT"); and war crimes are
actionable under the ATS; 2) if so, the applicable sources of
law for defining the prohibitions; and 3) whether such claims
are actionable against private parties.
Suhail Al Shimari, Salah Al-Ejaili, and Asa'ad
Al-Zuba'e (collectively "plaintiffs"),
Iraqi nationals, were detained in the custody of the U.S.
Army at Abu Ghraib prison in Iraq in 2003 and 2004. In 2008,
they brought a civil action under the ATS against CACI
Premier Technology, Inc. ("CACI" or
"defendant"), which provided interrogation services
for the U.S. military at Abu Ghraib at the time of the
relevant events. Plaintiffs allege that defendant violated
the law of nations by committing acts involving torture,
CIDT, and war crimes. Third Am. Compl. [Dkt. No.
civil action has been before the Fourth Circuit four times,
most recently after plaintiffs' Third Amended Complaint
was dismissed on the grounds that it presented a
non-justiciable political question. The district court had
reasoned that according to the chain of command "the
military exercised 'plenary' and 'direct'
control over how Defendants interrogated detainees
at Abu Ghraib" and that "[t]o consider
Plaintiffs' claims would require the Court to impose
state tort duties onto an active war zone, raising a broad
array of interferences by the judiciary into the military
functions textually committed by our Constitution to
Congress, the President, and the Executive Branch."
Al Shimari v. CACI Premier Tech., Inc., 119
F.Supp.3d 434, 444-47 (E.D. Va. 2015) (internal quotation
marks omitted) (emphasis in original). On appeal, the Fourth
Circuit found that the district court erred by focusing on
formal control and "failing to determine whether the
military exercised actual control over any of CACI's
alleged conduct" and explained that "irrespective
[of] whether that conduct occurred under the actual control
of the military, " "conduct by CACI employees that
was unlawful when committed is justiciable." Al
Shimari v. CACI Premier Tech., Inc. (Al Shimari IV). 840
F.3d 147, 151 (4th Cir. 2016). In keeping with this
principle, the acts committed by CACI "are shielded from
judicial review under the political question doctrine"
only if they "were not unlawful when committed and
occurred under the actual control of the military or involved
sensitive military judgments." Id.
the Fourth Circuit vacated the district court's judgment
and remanded the case with the explanation that
on remand, the district court will be required to determine
which of the alleged acts, or constellations of alleged acts,
violated settled international law and criminal law governing
CACFs conduct and, therefore, are subject to judicial review.
The district court will also be required to identify any
'grey area' conduct that was committed under the
actual control of the military or involved sensitive military
judgments and, thus, is protected under the political
Id. at 160. To the extent that the alleged conduct
was lawful, CACI will be shielded from judicial review under
the political question doctrine if the lawful action occurred
under the "actual control of the
military." Id. at 157 (emphasis in original).
remand, the district court judge previously assigned to the
case recused himself and the case was reassigned to this
Court. After briefing by both parties as to how the case
should proceed, the Court held a status conference where it
observed that the threshold issue was whether the Court had
subject matter jurisdiction and, per the Fourth Circuit's
opinion in Al Shimari IV, to resolve that question
it would need to determine whether the alleged CACI conduct
was unlawful when committed. Dec. 16, 2016 Tr., [Dkt. No.
573]. To begin addressing this question, the Court ordered
the parties to "submit briefs addressing the applicable
legal standard under the Alien Tort Statute." [Dkt. No.
571] at l. Both parties have done so and this
Memorandum Opinion sets forth the legal standard under which
this litigation will proceed.
by the First Congress as part of the Judiciary Act of 1789,
the ATS grants federal courts original jurisdiction over
"any civil action by an alien for a tort only, committed
in violation of the law of nations or a treaty of the United
States." 28 U.S.C. § 1350; Sosa v.
Alvarez-Machain, 542 U.S. 692, 712 (2004). The Supreme
Court has construed the ATS as "a jurisdictional
statute" that "creat[es] no new causes of
action." Sosa, 542 U.S. at 724. Rather, the
statute was "enacted on the understanding that the
common law would provide a cause of action for the modest
number of international law violations with a potential for
personal liability at the time, " which included
"violation of safe conducts, infringement of the rights
of ambassadors, and piracy." Id. Because the
ATS was rooted in common law, "the First Congress
understood that the district courts would recognize private
causes of action for certain torts in violation of the law of
federal courts have the power to recognize causes of action
beyond the three enumerated above, the Supreme Court has
cautioned that there are "good reasons for a restrained
conception of the discretion a federal court should exercise
in considering a new cause of action of this kind."
Id. at 692. These reasons include the shift in the
prevailing conception of the common law, which is no longer
understood as something that is "found or
discovered" but instead "made or created;" the
watershed decision in Erie R. Co. v. Tompkins, 304
U.S. 64 (1938), denying the existence of any federal
"general" common law; and the recent reluctance of
courts to infer an intent to create a private right of action
where Congress has not expressly created one. See
Sosa, 542 U.S. at 725-27. Beyond these broader
trends, the Supreme Court has recognized that "the
potential implications for the foreign relations of the
United States of recognizing such causes should make courts
particularly wary of impinging on the discretion of the
Legislative and Executive Branches in managing foreign
affairs, " especially when courts have "no
congressional mandate to seek out and define new and
debatable violations of the law of nations."
Id. at 727-28. But, subject to these cautionary
principles, "the door is still ajar subject to vigilant
door keeping, and thus open to a narrow class of
international norms today." Id. at 729.
to the Supreme Court's guidance in Sosa. courts
are to "require any claim based on the present-day law
of nations to rest on a norm of international character
accepted by the civilized world and defined with a
specificity comparable to the features of the 18th-century
paradigms [the Supreme Court has] recognized."
Id. at 732. Such "[a]ctionable violations of
international law must be of a norm that is specific,
universal, and obligatory." Id. (quoting In
re Estate of Marcos Human Rights Litigation. 25 F.3d
1467, 1475 (9th Cir. 1994)). To determine the content of an
international norm, courts should look first to whether
Congress has defined the relevant international legal norm,
in which case federal courts must apply the statutory
standard. In re XE Servs. Alien Tort Litig., 665
F.Supp.2d 569, 582 (E.D. Va. 2009). Where Congress has been
silent, "U.S. courts must define the applicable legal
norms independently of the determinations of international
tribunals and foreign bodies, but they may accord those
determinations an appropriate level of 'respectful
consideration.'" Id. (quoting
Sanchez-Llamas v. Oregon, 548 U.S. 331, 333 (2006)).
In addition to scrutinizing the nature of the violation,
courts also exercise "an element of judgment about the
practical consequences of making that cause available to
litigants in the federal courts." Sosa, 542 U.S. at
this backdrop, the question before the Court is whether
torture, CIDT, and war crimes constitute ...