Public Contract Law Journal

The Alien Tort Statute: A Way to Find Jurisdiction Over Today's Pirates, U.S. Government Contractors

by Abigail Yull

Abigail Yull ( received her J.D. from The George Washington Law School in May 2018 and her B.A., Political Science, from the University of Florida in 2015. She expects to start work as Litigation Counsel at Hewlett Packard Enterprise in September. She would like to thank Professor Ralph Steinhardt for his invaluable guidance and Dylan Blakeley for his constant support throughout the Note-writing process. Most of all, she recognizes that none of this would be possible without the unwavering love and encouragement of her other and father, Anne and Duncan Yull.

I. Introduction

Currently, there is no effective system to hold U.S. government contractors accountable for customary international law violations that occur abroad. The present convoluted state of the law allows the U.S. government to privatize around violations of international human rights by contracting out many of its functions to companies able to escape liability.1 To resolve this gap in accountability, U.S. courts may interpret the Kiobel touch and concern rule to apply the Alien Tort Statute (ATS) extraterritorially, permitting jurisdiction over U.S. government contractors.2 The ATS provides jurisdiction over a foreign plaintiff’s tort action committed in violation of customary international law.3

In Al Shimari v. CACI International Inc. (CACI), Iraqi nationals sued CACI under the ATS. The plaintiffs alleged that CACI’s employees while carrying out a U.S. government contract brutally tortured them in violation of customary international law.4 The claim involved many connections to the United States: CACI is an American company and a U.S. government contractor, and the claims concerned conduct relating to a U.S. government contract.5 Most recently, the Fourth Circuit ruled in CACI that the Supreme Court decision in Kiobel v. Royal Dutch Petroleum Co.6 did not foreclose the possibility of jurisdiction.7 The court vacated and remanded the case for further proceedings after finding the political question did not bar it from progressing,8 and it is still pending in district court.9 If no U.S. court ultimately asserts jurisdiction over this claim, this will provide further evidence that the U.S. government may contract out its human rights abuses. No one, not even the contractor, will be liable for the violations. This is writing a blank check for human rights abuses.

Although this Note focuses on the accountability gap in service contracting, the gap also has implications for government contracts for products and goods.10 The ATS also may prove an effective solution for these contracts. The defendant need not be such an obvious culprit as a perpetrator of genocide, torture, and other extremely obvious atrocities; for example, private actors increasingly provide uniforms to the government,11 and their production may violate international labor law. To be held accountable under the ATS, being considered today’s pirate is sufficient but not necessary.

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