Senator Feinstein's Now-Withdrawn Statute Limiting Non-Citizens' Tort Claims:
How Would It Have Affected Abu-Ghraib-Related Civil Suits and Other Similar Civil Actions?

On October 18, Senator Diane Feinstein introduced the Alien Tort Statute Reform Act. That Act would have amended an existing statute, the Alien Tort Statute ("ATS"). Business groups praised Feinstein but she was attacked by human rights and labor groups. Within a week, Feinstein had withdrawn her amendment, saying that she needed more time to "study" its language.

The ATS, as I have noted in previous columns such as this recent one, provides that "the district courts shall have original jurisdiction of 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."

This remarkable law has allowed victims of torture and genocide to sue defendants ranging from Paraguayan generals to German banks for damages--including punitive damages--in American courts.

Feinstein's proposed amendment to the ATS is gone for now, but the pressure from American corporations that were behind the amendment is still strong.

The Senate should be very clear about what is at stake before its members pass any amendment to weaken corporate responsibility under the ATS.

How Feinstein's Proposed Amendment Would Have Changed the Law

Feinstein's proposed amendment would have made a number of changes to the ATS, but two stand out:

First, had the amendment been passed, a defendant then could be sued only if he was a "direct participant" in the wrongful conduct that injured the plaintiff.

Second, had the amendment passed, the plaintiff would have had to prove that the defendant acted with "specific intent to commit the alleged tort."

Both of these changes are clearly designed to make it harder for ATS suits to be brought against corporations. As I explained in my column about the suit against Unocal, activists have tried to invoke the ATS in cases where a corporation "aids and abets" human rights violations. According to the activists, Unocal, for example, had hired local security forces in Burma to protect the construction of a pipeline. When the security forces violated Burmese villagers' human rights, the villagers sued under the ATS. The case was settled last year, but not until the Ninth Circuit ruled that the villagers' claims could go to trial.

Feinstein's amendment to the ATS would have made it much more difficult for suits like Unocal to go forward. The requirement of "specific intent" is clearly designed to raise the burden of proof plaintiffs must carry. In cases involving corporations, it is often very difficult to prove specific intent, since often decisions are made by groups of managers, not by single individuals who plan a course of action from beginning to end (and leave a neat paper trail behind).

The requirement that the defendant was a "direct participant" would have made a big difference in the Unocal case -- and, indeed, in any case where, as was the case in Unocal, the Western corporate defendant is accused of "aiding and abetting" local actors who do their dirty work.

Granted, it is possible that in Unocal, even if Feinstein's amendment were law, the courts might still have allowed a liberal interpretation of what counts as "direct participation" - an interpretation that would ensure that corporations could not simply outsource their human rights violation to local subcontractors.

Still, the passage of Feinstein's amendment clearly would have had the effect of slowing the momentum that had been built up since the Unocal settlement.

Abu Ghraib ATS Suits: A Weakened ATS Might Undermine Them

For example, there are currently a number of suits pending against private contractors who provided interpreters and interrogators to the U.S. military at Abu Ghraib prison in Iraq. The suits state a number of claims, including claims pursuant to the ATS. A brief review of how these suits have been treated by the federal courts so far shows why any effort to weaken the rights of aliens under the ATS should be handled with care.

Seven Iraqi nationals have sued Titan Corporation and CACI Inc. for abusing them while at Abu Ghraib. The allegations claim abuses virtually identical to those to which numerous soldiers have already admitted in military court. The allegations include claims of abuse by torture, humiliation, and psychological manipulation.

These factually strong claims should be allowed to go forward. Yet even under the current ATS, a wrench has been thrown in their path. A weakened ATS would raise even more obstacles to their success.

Even Under the Current Statute, Abu Ghraib Plaintiffs Had ATS Claims Dismissed

In a ruling this year in Ibrahim v. Titan Corp., U.S. District Judge James Robertson dismissed the ATS claims, while letting some other claims against the corporate defendants stand. His reason for dismissing the ATS claims was that the Circuit of the District of Columbia - the Circuit whose decisions bind him - has interpreted the ATS differently than has the Second Circuit, the Third Circuit, or the Ninth Circuit.

According to Judge Robertson, the D.C. Circuit had held, since 1985, that the ATS does not reach "private, non-state conduct." The plaintiffs in Ibrahim conceded that the U.S. Government had sovereign immunity for any acts of torture alleged. Thus, Judge Robertson concluded that Titan and CACI had been sued for their "private" conduct, and that therefore, under D.C. Circuit precedent, the ATS did not cover their actions in Iraq.

Judge Robertson, in my opinion, was simply wrong about the ATS and private conduct. The Second, Third, and Ninth Circuits' analyses of the ATS have decisively rebutted the D.C. Circuit's cramped reading of the statute. This is why the Holocaust litigation proceeded against private corporations, and this is why the Unocal case could proceed.

But Judge Robertson was, in any event, bound to apply a higher court's - here, the D.C. Circuit's - binding precedent whether he agreed with it or not, wasn't he? Not in this case, I think - for I think an even higher court, the U.S. Supreme Court, has already implicitly blessed the other Circuits' approach.

That blessing, in my view, came from the Court's 2004 ruling in Sosa v. Alvarez-Machain, which I wrote about last year. There, the Court held that the tort suffered by the plaintiff in that case did not fall under the ATS because it was not a violation of a treaty or the law of nations. But, very significantly, the Supreme Court did not say that the suit against the defendants--some of whom were Mexican bounty hunters--could not go forward because they were not "state actors" but private citizens.

In sum, the ATS, as it currently stands, is best interpreted to reach private conduct as well as state conduct; that it the way the Court has interpreted the statute; and Judge Robertson erred in following the D.C. Circuit instead of the High Court.

Without the ATS, Abu Ghraib Victims May Be Left with No U.S. Remedy At All

What makes Ibrahim important in the context of Feinstein's amendment is that the rest of Judge Robertson's decision shows how difficult it will be for the victims of torture in Iraq to sue Titan and CACI, if they must rely only on non-ATS claims.

Judge Robertson held, for instances, that the defendants would be able to hide behind the "government contractor defense" if they could show that the torture that allegedly occurred was closely connected to the combat activities of the United States Military.

As with his interpretation of the ATS, I think that Judge Robertson's interpretation of the "combat activities exception" is too broad, and I hope that after discovery is completed, he will reject the defendants' attempt to shield themselves behind it. The combat activities exception originally covered injuries caused during combat itself, and was extended to government contractors who manufactured weapons used during combat. But Titan and CACI's employees were not fighting the plaintiffs in Abu Ghraib. The plaintiffs combat activities had come to an end by the time they met the defendants.

However, my point is that were the ATS available to the plaintiffs--as it should be--the court in Ibrahim would have been able to give them their day in court in a much more simple and direct way - for the "combat activities" exception would not, in that context, apply.

Another Way the Feinstein Amendment Might Have Destroyed the Abu Ghraib Suits

Finally, it is worth noting that if the Abu Ghraib suits had been controlled by Feinstein's amendment, they might have been dismissed for a different reason:

Specialist Graner, who was court-martialed for his role in the scandal, testified that he was ordered to abuse prisoners by private contractors. If discovery were to reveal that Titan or CACI employees did not do the dirty work themselves, but, rather, ordered military personnel to do it for them, would they fall under the "indirect participation" exception proposed in Feinstein's first attempt at amending the ATS?

Amending the ATS May Destroy Worthy Suits Against Grave Abuses

If Sen. Feinstein does ever try to amend the ATS, in the hope of preventing abusive litigation against American corporations, she should remember what Titan and CACI are accused of doing in Iraq.

It may be that, in some instances, plaintiffs can get along without the ATS - or, at least, without the current, strong, unamended ATS, for other tort doctrines will be sufficient to ensure that private corporations do not get away with profiting from human rights abuse.

But in some instances, these other doctrines won't be enough and the ATS is needed. The Senate should make sure that such doctrines are effective in cases like Ibrahim before they give federal judges any more reasons to ignore the ATS.