The Alien Tort Claims Act: An Activist Tool for Change
By Bart Mongoven
The American Civil Liberties Union (ACLU) and British human rights charity Reprieve filed suit in California on May 31 against logistics consulting company Jeppesen Dataplan Inc. The suit claims the Boeing subsidiary knowingly aided CIA rendition activities abroad and is complicit in the torture of terrorism suspects.
The ACLU's suit, filed under the Alien Tort Claims Act (ATCA), is significant because it reaches far beyond Boeing to the sizeable business community that has contracts with federal agencies involved in the larger war against Islamist militants. Jeppesen Dataplan specializes in logistics support, but the rendition program alone involves many additional contractors, all of which now see themselves as possibly facing action under ATCA. In addition to the renditions, the United States operates dozens of other programs that flirt with the boundaries of international human rights norms -- and private contractors have had at least a tangential role in almost all of them.
Legally, the suit faces many hurdles, including the defense that Jeppesen Dataplan did not know -- perhaps was not even allowed to know -- why the CIA needed the specific logistic support the company provided. Regardless of the legal merit and likelihood of success, the effect of this suit and others like it extends far beyond the offices of the defendant companies' general counsels. Not only is it a board-level issue, but it also draws attention from marketing, public relations, government relations and other departments that manage how people perceive the company. In pulling companies in so many directions, these suits are expensive, both in financial cost and in the distractions they cause senior executives.
In zeroing in on Jeppesen Dataplan, the ACLU is hitting directly at an issue on the minds of voters and consumers -- U.S. detention and interrogation tactics -- and attacking a company with high name recognition. Furthermore, though far from the truth, the selection suggests that the target was chosen almost at random, and that any major government contractor could face similar action. The ACLU, in fact, said as much in its announcement about the suit. "This is the first time we are accusing a blue-chip American company of profiting from torture," an ACLU lawyer said. "Corporations should expect to get sued where they are making blood money off the suffering of others," said another.
The suit opens the legal side of what will likely be a multi-prong, years-long process of placing the tactics used in the war against Islamist extremists under a public spotlight. The strategy is a product of a coalition of human and civil rights nongovernmental organizations that aim to make sure that, using the war as an excuse, the United States does not abuse suspects abroad in ways that are considered unacceptable within the United States. The goal is to bolster the political position of those calling for an end to the use of various tactics in the war and for an increase in transparency in the tactics the federal government uses to identify militants and their plans. Because the government is resistant to these calls, the activist groups involved aim to make corporations see that federal policies put them at risk, and thus turn the corporate sector into lobbyists for a change in tactics.
ACLU v. Boeing
ATCA, which dates back to 1789, states that federal district courts 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." Though used in several ways since 1980 to sue individuals, it found new life in the 1990s as a vehicle by which foreign nationals can sue companies in U.S. courts for violations of universally understood human rights norms. In this case, the ACLU represents the plaintiffs in Binyam Mohamed, et al. v. Jeppesen Dataplan Inc. Mohamed is an Ethiopian living in the United Kingdom who was snatched while visiting Pakistan and flown to Morocco.
ATCA has been used fewer than 20 times against companies in the United States, with the only legal success coming in the first major ATCA suit initiated by human rights groups, John Doe v. Unocal, brought by the International Labor Rights Fund. (In that case, John Doe was Myanmarese). The oil company settled the suit out of court in 2005. The only other ATCA case that has advanced far into the judiciary, Sosa v. Alvarez-Machain, was appealed to the Supreme Court, which ruled that the offense in question, kidnapping, did not rise to the level of a violation of core internationally recognized human rights norms.
While kidnapping does not rise to the level of violating international human rights norms, the combination of kidnapping and torture likely does. The ACLU's complaint against Jeppesen Dataplan alleges the company helped the CIA facilitate "the forced disappearance, torture and inhumane treatment" of three men, suspected al Qaeda militants Binyam Mohamed, Ahmed Agiza and Abou Elkassim Britel. The three allegedly were arrested by foreign intelligence or police in Sweden and Pakistan, picked up by the CIA and flown on charter jets to allied Middle Eastern countries, where the subjects were tortured. According to the ACLU, the CIA flew the men to those countries (with Jeppesen Dataplan's assistance) because they knew the intelligence services there would use techniques to extract information that are not legal in the United States.
The complaint contends that Jeppesen Dataplan knowingly played a critical role in renditions by providing flight planning services -- including the itinerary and route used -- as well as customs clearance assistance, ground transportation, hotel reservations and security for the team transporting the prisoner. Boeing and Jeppesen Dataplan deny having any knowledge of the reason for these flights, and contend that they cannot be held liable for the activities of their clients.
The suit is a long shot in the courts. There are a number of hurdles the ACLU must clear in order to get a single substantive hearing. First, it must convince a judge that the company is not covered by immunity as a government contractor. (Government contractors are covered under the sovereign immunity the federal government enjoys.) To do this, it must convince a judge that Jeppesen Dataplan was aiding the government but was not a party to the rendition program itself or to the torture that allegedly followed. Even if it succeeds, it also will have to successfully argue that national security will not be placed at risk if the case is heard. If it passes these hurdles, the suit will then receive a hearing, at which the ACLU will have to convince a judge that Jeppesen Dataplan knew that some of its flights were aiding and abetting torture.
Winning the case in court, however, is not the ACLU's game. Rather, through the suit, the organization is trying to place Jeppesen Dataplan, its parent company Boeing and the larger world of government contractors under scrutiny. More important, it is warning contractors that they have an interest in U.S. foreign policy and its practices.
ATCA's strength is that it places corporations in a position to defend themselves against allegations of complicity in gross human rights abuses usually committed in countries that have poor government oversight. The list of violations that rise to the level of ATCA -- including homicide, slavery, torture and rape -- are so heinous, however, that simply being the subject of such an allegation, regardless of vehement denials, can hurt the company's image.
The main goal of these suits, then, is to force the defendant companies and others in similar situations to implement internal human rights controls and demand more coherent external accountability mechanisms from the government. Since John Doe v. Unocal entered the courts in the late 1990s, petroleum, mining and other extractive industries have improved safeguards to ensure they do not face similar suits. After a brief flurry of cases against resource companies, the most obvious targets of ATCA suits -- companies with operations in developing countries with poor governance -- have not been subject to many suits. The bulk of ATCA suits filed in the past five years have been against consumer product manufacturers, companies that are less prepared for ATCA allegations and have not yet instituted management safeguards against such allegations.
The Long Term
Contractors might be almost immune from successful prosecution, but due to the nature of the allegation -- complicity in torture -- they are not immune to embarrassment. This suggests ATCA is being used as one part of a larger movement (other efforts by the ACLU, Amnesty International and others are under way as well) urging voters and political leaders to reassess U.S. tactics in combat and intelligence operations since 9/11. As the election approaches, congressional inquiries into such tactics -- and harsh criticism of the Bush administration -- will be inevitable. As a result, presidential and congressional candidates will be in a position to express outrage at current tactics and vow changes if elected. From an advocacy point of view, it is a strong strategy that will strengthen the activists' hand in the coming years.
Moving against corporations will be an important part of this strategy. The outcry from advocacy groups and politicians opposed to the Bush administration's conduct since Sept. 11, 2001, has led to continued congressional inquiries into the manner in which large and small defense contracts are awarded and how billing is managed. Furthermore, Congress also is more deeply scrutinizing companies that face allegations of wrongdoing. Contracts considered for the companies that managed Iraq's Abu Ghraib prison (CACI and Titan Corp.) for the Defense Department also receive more scrutiny inside the department, in part out of fear of congressional investigation. While Boeing's position as a leading defense contractor is not at risk, the ATCA suit threatens to bring added scrutiny to contracts awarded to the company, particularly to Jeppesen Dataplan.
The corporate role is crucial because the ACLU and its allies do not trust the next administration to be much different. As the 2008 campaign heats up, rhetoric critical of the prison at Guantanamo Bay, Cuba, renditions and other tactics will only increase. (The rendition program did not begin with 9/11 but years earlier under former President Bill Clinton, and Clinton's predecessors presided over similar programs). Things change, however, when candidates become officeholders. In other words, while the politics of interrogation techniques and rendition seem fairly easy from the outside, the reality of fighting a war is much different than most voters imagine. The decisions the next administration makes, therefore, might not differ terribly from those the candidates will criticize during the next 15 months.
Though the ACLU may or may not succeed in changing how elected leaders approach these issues, the strategy will affect how CIA and Defense Department contractors do business. Just as the oil, mining and resource-extracting industries have built structures to monitor problems with an eye toward ATCA, so too will defense contractors, particularly those with brand names and large government contracts to protect.
The ATCA suit places government contractors (and would-be contractors) on notice: Any dealing with the government could place them at risk of a court case that, regardless of merit, can cause long-lasting damage to the company. The design, then, is to turn contractors into lobbyists for human rights. It is an approach that could work.
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