On Nov. 12, 2024, a federal jury awarded $42 million to three men – Suhail Al Shimari, Asa’ad Zuba’e, and Salah Al-Ejaili – who had been subjected to torture at the U.S.-run Abu Ghraib prison in Iraq in 2003 and 2004. The case, Al Shimari et al v. CACI, has stretched on for sixteen years and two trials (the first jury was unable to reach a verdict.) The second jury decided that the defendant, private contractor CACI Premier Technology, Inc., had conspired with Army military police officers (MPs) to “set conditions” for interrogation, which resulted in the widespread torture and cruel, inhuman, and degrading treatment in the “hard site” – the part of prison where the most severe abuses occurred. It ordered the company to pay each plaintiff $3 million in compensatory damages and another $11 million in punitive damages – damages awarded because of the severity of CACI’s conduct.
The verdict offers a rare glimmer of hope for accountability for those who have suffered human rights violations due to the actions of U.S. companies. Filed in 2008, the case is the first in which a jury has found a private company complicit in the U.S. government’s post-9/11 program of torture. It remains unclear whether this could be the beginning of a revival of the Alien Tort Statute (ATS), the law under which the case was brought – or whether this will prove a tantalizing but fleeting victory.
The Rise and Fall of the Alien Tort Statute
The jury’s verdict in Al Shimari et al v. CACI was based on claims made under Alien Tort Statute, a law passed by the First Congress as part of the Judiciary Act of 1789. The ATS allows foreign nationals to seek redress in U.S. courts for violations of international law, or as the statute puts it, “the law of nations or a treaty of the United States.”
The Alien Tort Statute first came to prominence in 1979 with another case filed by the Center for Constitutional Rights (CCR) – the same nonprofit that pursued the Al Shimari case. Filártiga v. Peña‑Irala, filed by Peter Weiss and his team at CCR, on behalf of Paraguayan national Joel Filártiga, a prominent political activist, and his daughter Dolly Filártiga against Paraguayan police officer Américo Norberto Peña‑Irala, who tortured Dolly’s brother Joelito Filártiga to death in Paraguay “in retaliation for his father’s political activities and beliefs.” The case led to a landmark decision by the Second Circuit Court of Appeals, awarding damages of over ten million dollars – a sum never collected, as Peña‑Irala had been deported from the United States by the time the case was decided. The case set off a host of lawsuits over the course of decades, as plaintiffs who had nowhere else to turn sought to use it to achieve accountability for violations of international law that would otherwise have gone unaddressed.
The ATS has faced setback after setback over the last two decades. In 2004, in Sosa v. Alvarez Machain, the U.S. Supreme Court permitted suits under the ATS to continue – a victory for a human rights community that had expected much worse. The Court, concluding that the ATS was merely jurisdictional, outlined a two‑part test for determining whether a claim is actionable under the ATS: first, the international norm at issue must be “specific, universal, and obligatory,” and, second, it must be a proper exercise of judicial discretion. The limited the kinds of claims that could be brought to the federal courts under the Statute to only those based on the very most established international law prohibitions.
A much bigger blow, however, came in 2013 with the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. There, the Court concluded that the ATS cause of action did not apply to wholly extraterritorial conduct. Only claims that “touch and concern the territory of the United States . . . with sufficient force,” it explained, would displace the “presumption against extraterritoriality;” and “mere corporate presence” in the United States was insufficient. The Court seemingly placed the nails in the coffin in a series of subsequent cases – in 2018 in Jesner v Arab Bank, PLC, the Court held that an ATS suit could not be brought against a foreign corporation for conduct outside the United States. In a subsequent pair of cases that went to the Court in 2021 – Nestlé USA, Inc. v. Doe and Cargill Inc. v. Doe – the Court held that the statute did not apply to wholly extraterritorial conduct by U.S.-based corporations. This left many wondering what, if anything, might be left of the ATS.
Resurrection of the ATS? Al Shimari et al v. CACI
In 2008, the CCR filed suit federal court in Virginia on behalf of four Iraqi men who had been held and tortured at Abu Ghraib. The complaint alleged that CACI Premier Technology, Inc., which had been hired by the U.S. government to provide interrogation services at Abu Ghraib, had conspired to torture the plaintiffs and subject them to cruel, inhuman, and degrading treatment – including beatings, sexual abuse, forced nudity, and other acts – in violation of international law. (The plaintiffs did not sue the U.S. government or its employees because of the longstanding principle of sovereign immunity, a doctrine that generally immunizes the State and its agents from civil suit. A decision in this case by Judge Leonie M. Brinkema in 2019, however, cast doubt on that principle in cases involving peremptory norms (jus cogens violations). Other defendants were originally part of the suit, but the Court ordered the claims against them dismissed without prejudice in 2008. The District Court dismissed all claims against CACI International with prejudice in 2013.)
The underlying facts of the case, as summarized by the U.S. Court of Appeals for the Fourth Circuit Court of Appeals in 2016, are as follows:
The plaintiffs alleged in their complaint that CACI interrogators entered into a conspiracy with low-ranking military police officials to commit abusive acts on the plaintiffs, in order to “soften up” the detainees so that they would be more responsive during later interrogations. The plaintiffs further alleged that they were victims of a wide range of mistreatment, including being beaten, choked, “subjected to electric shocks,” “repeatedly shot in the head with a taser gun,” “forcibly subjected to sexual acts,” subjected to sensory deprivation, placed in stress positions for extended periods of time, deprived of food, water, and sleep, threatened with unleashed dogs and death, and forced to wear women’s underwear.
Additionally, the plaintiffs alleged that CACI interrogators “instigated, directed, participated in, encouraged, and aided and abetted conduct towards detainees that clearly violated the Geneva Conventions, the Army Field Manual, and the laws of the United States.” […] The plaintiffs contend that these acts of abuse were possible because of a “command vacuum” at Abu Ghraib, caused by the failure of military leaders to exercise effective oversight over CACI interrogators and military police.
The case has undergone more twists and turns than this article can summarize. (CCR’s case page includes a case timeline, together with large numbers of the case files.) According to CCR, the 16 years of litigation entailed “more than 20 attempts by CACI to have the case dismissed.” A previous trial ended in a mistrial after a jury failed to reach a verdict.
CACI’s principal defense at trial was the “borrowed servant” doctrine – a rule that can allow an employer to avoid liability for the unlawful actions of its employees if those acts were committed while under the control of a “borrowing” employer. CACI suggested that the U.S. Army exercised control over CACI interrogators when any unlawful conduct occurred and therefore CACI could not be held liable. The jury rejected that defense, finding CACI responsible for its employees’ conduct. It found that the company was liable under the Alien Tort Statute for conspiracy to commit torture and cruel, inhuman, or degrading treatment of the plaintiffs (the aiding and abetting claim had been dismissed before the case reached the jury.)
It is hard to overstate how unusual such a verdict is. In reviewing every single ATS suit brought in the entire history of the ATS, for our article, Has the Alien Tort Statute Made a Difference?, my coauthors and I found only 25 ATS cases that resulted in monetary judgments that were not subsequently overturned. We were also able to document 33 ATS cases that settled before reaching a judgment on the merits; such settlements were offered by corporations seeking to avoid bad publicity and precedents.
The Al Shirmari case may help chart a path for plaintiffs and their lawyers seeking a way to navigate the constraints imposed by the Supreme Court’s embrace of the presumption against extraterritoriality for the ATS, first in Kiobel, and most recently in Nestlé. In rejecting CACI’s motion to dismiss after Nestlé, the district court highlighted the substantial U.S. connections in the case, even though the torture itself took place abroad. The court distinguished the facts of the case from Kiobel, Jesner, and Nestlé at some length, noting in particular that the alleged torts were “committed by U.S. nationals, acting under a U.S. government contract, and in foreign territory controlled by the U.S. government.” Under these circumstances, it concluded, the presumption did not properly apply.
What will come next is as yet unclear. It is possible that CACI will decide to settle the suit and pay the plaintiffs some or all of the amount awarded by the jury. Or it may appeal it to the Fourth Circuit, seeking to have the verdict overturned. In the meantime, however, the human rights community should relish this rare victory – and the vindication it represents.