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 (ayull@law.gwu.edu) 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.

Violations of customary international law include genocide, torture, and slavery.12 Although the ATS offers recourse for violations that occur in the United States,13 the extent of the statute’s extraterritorial application is unclear and remains a question currently percolating in the court system. Most prominently, in 2013, the U.S. Supreme Court ruled in Kiobel that the ATS applies extraterritorially only if the claim touches and concerns the United States with sufficient force to overcome the presumption against extraterritoriality.14 The Court did not provide any guidance on what it takes to touch and concern the United States.15

U.S. courts should read the Kiobel touch and concern rule so that the ATS applies extraterritorially to claims against U.S. government contractors, i.e., the ATS applies where a U.S. government contract is involved. If the courts determine conduct related to a U.S. government contract does not overcome the presumption against extraterritoriality, the United States will be free to continue privatizing, or contracting out, human rights violations. There is no reason courts should allow customary international law to shield U.S. government contractors; courts should hold governments to the highest standard.16 Recent interpretations of the Kiobel touch and concern rule demonstrate that the ATS may present a viable solution to this problem. Although there are alternative mechanisms for accountability,17 this Note focuses on a remedy offering compensatory damages to victims of some of the most flagrant and brutal crimes rather than a government sanctioned regime that would provide unsatisfactory relief. Common plaintiffs in ATS cases are those suing on behalf of a deceased loved one. Although that life cannot be brought back, the ATS provides an avenue for emotional and at least some monetary relief for the family or victims to aid in their recovery.

This Note examines the jurisdictional reach of the ATS when a U.S. government contractor commits a violation of the law of nations on foreign soil arising out of a government contract. Part II provides background on the ATS and explores relevant ATS cases since Kiobel, highlighting three common types of contractor-defendants. Part II also discusses the Government Contractor Defense. Part III lays out two likely factors used to determine whether a claim sufficiently touches and concerns the United States to overcome the presumption against extraterritoriality. Applying these factors, Part IV analyzes the potential jurisdiction over three degrees of likely U.S. government contractor defendants in an ATS case — American companies, foreign subsidiaries of an American company, and totally foreign companies.18

II. Background of the Alien Tort Statute and Its Recent Application

Today, the law of nations is called customary international law.19 When Congress enacted the ATS, pirates were one of three potential violators of the law of nations.20 Government contractors are today’s pirates.

A. The Alien Tort Statute

The Alien Tort Statute states that “[t]he district courts shall have 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.”21 Essentially, U.S. district courts have jurisdiction over a case under the ATS if there is (1) an alien plaintiff, (2) alleging a tort cause of action, (3) that violates the law of nations.

1. The Law of Nations
The term “law of nations” has evolved greatly since the original passage of the ATS as a provision of section 9 of the Judiciary Act of 1789.22 At that time, Sir William Blackstone’s Commentaries on the Laws of England identified three principal offenses covered by the law of nations: violations of safe conducts, infringement of the rights of ambassadors, and piracy.23

2. The Law of Nations as Customary International Law
Today, the law of nations is synonymous with customary international law.24 Customary international law is “common to all nations; and if any one of them does not respect it in her actions, she violates the common rights of all others.”25 States must respect human rights as a matter of customary international law.26 The Restatement Third on the Foreign Relations of the United States recognizes the following acts as violations of customary international law: “(a) genocide, (b) slavery or slave trade, (c) the murder or causing of disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f ) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.”27

3. Today’s Pirates
The ATS applies to any actions that would have violated the law of nations when the statute passed.28 Because customary international law is today’s law of nations, the ATS applies to any violation of the customary international law. Actors analogous to pirates now include “torturers and perpetrators of genocide,” as well as anyone who violates a customary international law.29 Therefore, the ATS applies to U.S. government contractors or their subsidiaries who violate customary international law because they are comparable to those who committed violations of the law of nations when Congress enacted the statute.

Further, modern day pirates who violate customary international law, including U.S. government contractors, are recognized as people (or entities) susceptible to liability anywhere in the world. The D.C. Circuit acknowledged “[p]iracy is a so-called ‘international crime’; the pirate is considered the enemy of every State, and can be brought to justice anywhere.”30 The Supreme Court in Kiobel went further: “[c]ertainly today’s pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are ‘fair game’ where they are found. Like [the pirates of old], they are ‘common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.’”31 Therefore, any party, including a U.S. government contractor, that commits a violation of customary international law today on foreign soil is the contemporary version of a 1789 pirate and susceptible to ATS liability.

B. ATS Jurisdiction over Contractor-Defendants Since Kiobel: Three Degrees
Three of the most likely “degrees” of contractor-defendants in an ATS case include (1) American companies or individuals, (2) foreign subsidiaries of American companies, and (3) totally foreign companies. Since the Kiobel decision, courts have had a chance to apply the touch and concern test to these contractors.

1. U.S. Companies Executing a U.S. Government Contract
CACI is an example of an ATS claim against an American company arising out of its execution of a government contract.32 In 2009, the district court refused to extend ATS jurisdiction because “tort claims against government contractor interrogators are too recent and too novel to satisfy the Sosa requirements [of customary international law] for ATS jurisdiction.”33 The court then reinstated the ATS claims; however, one year later, the district court found Kiobel barred ATS jurisdiction because the conduct occurred exclusively in Iraq.34 Again on appeal – notably the last time a court ruled on the touch and concern issue in this case — the Fourth Circuit found Kiobel did not foreclose the possibility of ATS jurisdiction based on the facts, and the plaintiff’s claim may touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritorial ATS application.

In finding that the political question doctrine would not render the case non-justiciable,35 the Fourth Circuit vacated and remanded the case for further investigation of the “relevant conduct,” which the district court has yet to decide. The court held “any acts of [a government contractor’s] employees that were unlawful when committed … are subject to judicial review.”36 Because all violations of customary international law are unlawful wherever they occur,37 this rule would not bar cases arising out of these violations from judicial review. The court explicitly stated there is a judicial interest in reviewing acts of government employees even when committed abroad.38 CACI gives the most hope for holding U.S. government contractors accountable for violations of customary international law.

Salim v. Mitchell is an example of an ATS claim against two American individuals arising out of their execution of a government contract.39 In Salim, the court held the defendants sufficiently touched and concerned the United States to rebut the presumption against extraterritorial application of the ATS.40 The defendants operated an American company located in Washington state and executed contracts with the Central Intelligence Agency.41 The court determined the facts to be similar to CACI, where “[t]he Fourth Circuit found important that the claims involved the performance of a contract executed by a U.S. corporation with the U.S. Government.”42 Thus, as in CACI, the court found the defendants touched and concerned the United States with sufficient force to overcome the presumption against extraterritorial application of the ATS and consequently denied the defendants’ motion to dismiss for lack of jurisdiction.43

2. Foreign Subsidiaries of U.S. Companies Executing a U.S. Government Contract
The extraterritorial conduct of a foreign subsidiary of a U.S. government contractor may also sufficiently touch and concern the territory of the United States to displace the presumption against extraterritoriality. The U.S. District Court for the Eastern District of Washington considered a foreign subsidiary of a U.S. company’s conduct abroad, and although it did not find jurisdiction over the subsidiary, it did not consider the existence of a U.S. government contract as a factor that touched and concerned the United States.

In Adhikari v. Kellogg Brown & Root, Inc. (KBR), the plaintiffs sought relief under the ATS, alleging corporations Daoud and KBR were responsible for the deaths of Nepalese workers in violation of customary international law.44 The plaintiffs alleged Daoud’s subcontractor, KBR, forced the workers to go to Iraq.45 While en route, Iraqi insurgents captured the Nepalese workers and later killed them.46 International media outlets broadcasted the executions.47 The Fifth Circuit did not find jurisdiction under the ATS because the claims did not touch and concern the United States with sufficient force.48 However, the opinion did not analyze KBR’s contract with the U.S. government as a potential factor to connect the claim with the United States, and the court denied the plaintiff’s motion to amend to include this argument.49

3. Foreign Companies Executing a U.S. Government Contract
When a case involves an alien plaintiff, an alien defendant, and foreign conduct, the case is called “foreign-cubed” and courts generally do not find jurisdiction over the matter.50 In Morrison v. National Australian Bank Ltd.51 and Kiobel, the Supreme Court barred foreign-cubed cases from ATS jurisdiction.52 In Morrison, the conduct in question involved bank shares traded only on foreign securities exchanges, not on any U.S. exchange.53 The Court held the Securities and Exchange Act did not apply extraterritorially because Congress did not indicate so, and because the case did not involve domestic application of the statute considering the Act’s focus and conduct at issue.54 In Kiobel, the conduct in question was a violation of customary international law in Nigeria.55 The Supreme Court held the ATS did not touch and concern the United States sufficiently to overcome the presumption against extraterritoriality, and therefore the ATS did not apply.56 The Court noted “mere corporate presence” is not sufficient.57 Although the Supreme Court found no ATS jurisdiction over the claims in Morrison and Kiobel, neither claim involved a U.S. government contract.

C. The Government Contractor Defense
This Note generally looks only at the minimum standard to bring a U.S. government contractor that commits a violation of customary international law abroad in to court, and not at ways for U.S. government contractors to escape liability under the ATS. However, it is important to acknowledge the “government contractor defense,” which a defendant U.S. government contractor could assert if sued under the ATS.

Foreign plaintiffs injured by a U.S. government contractor may seek two remedies.58 First, the plaintiff may sue the government.59 However, the government has sovereign immunity, which bars the suit brought against the government.60 This leaves the plaintiff with only one choice: to sue the contractor.61 Nevertheless, the government contractor defense may bar the suit, leaving the plaintiff no prospective redress.62 A defendant may assert a defense regarding equipment necessary to complete work contracted for, wherein the government approved reasonably precise specifications, the equipment conformed to those specifications, and the contractor warned the government about dangers of using the equipment.63 This defense extends the government’s sovereign immunity to protect contractors where the manufacturers “essentially acted as instruments of the government.”64

The Eleventh Circuit recently found the government contractor defense extends to service contracts.65 Service contracts are exactly those that this Note discusses; for example, in CACI, the contract was for security services.66 The fact that the court emphasized the importance of this extension to human rights indicates how frequently contractors violate human rights.

III. Personal Jurisdiction and Extraterritorial Jurisdiction Are Key Factors in Finding Whether Claims Touch and Concern the United States Sufficiently to Overcome the Presumption Against Extraterritoriality of the ATS

The Supreme Court did not explicitly impart a touch and concern test or describe when foreign conduct may overcome the ATS presumption against extraterritoriality. However, the Kiobel decision suggests extraterritorial jurisdiction and personal jurisdiction are both factors that touch and concern the United States with sufficient force to overcome that presumption.67

A. Extraterritorial Jurisdiction as a Factor to Touch and Concern the United States

1. The Purpose of the Presumption Against Extraterritoriality
Today, courts generally interpret statutes with a presumption against extraterritorial application.68 However, this is a rebuttable presumption.69 The purpose of the presumption against extraterritorial application is international comity.70 International comity protects the United States “against unintended clashes between our laws and those of other nations which could result in international discord.”71 The presumption essentially prevents unique U.S. law from being projected into foreign territory.

In EEOC v. Arabian American Oil Co., a U.S. citizen working in Saudi Arabia sued his U.S. employer in a U.S. court under Title VII for conduct that occurred solely in Saudi Arabia.72 The court found the presumption against extraterritoriality applied to Title VII,73 reasoning the presumption should apply to prevent the United States from projecting unique U.S. law into foreign territory, possibly resulting in discord.74 At this time, the question of whether the presumption applied to the ATS remained unanswered.

2. Kiobel’s Touch and Concern to Displace the Presumption Against Extraterritoriality of the ATS
In 2013, for the first time, the Supreme Court addressed the question of whether the presumption against extraterritoriality applied to the ATS.75 Although the Court found the presumption does apply, Justice Roberts, writing for the majority, pronounced the presumption could be displaced “where the claims touch and concern the territory of the United States &hellilp; with sufficient force.”76 The Court did not define the touch and concern rule or “offer[] conclusive guidance on the resolution of cases involving, for example, … conduct … performed under contract with the U.S. government.”77 Justice Kennedy acknowledged the majority intentionally left many significant questions unanswered regarding the reach of the ATS,78 leaving the interpretation of the touch and concern rule to the lower courts.79

On the other hand, the Breyer concurrence “would not invoke the presumption against extraterritoriality” to the ATS.80 Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, opined that there is jurisdiction under the ATS based on “principles and practices of foreign relations law” in three instances: 1) where the tort occurs on U.S. soil, 2) where the defendant is a U.S. citizen, or 3) where “the defendant’s conduct substantially and adversely affects an important [U.S.] national interest.”81 Furthermore, the concurrence specified there would be jurisdiction where the United States is a “safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of all mankind.”82

Justice Breyer’s third avenue for ATS jurisdiction was where the “defendant’s conduct substantially and adversely affects an important [U.S.] national interest.”83 The Restatement (Third) on U.S. Foreign Relations explicitly allows Congress to make law for such situations. Restatement sections 402, 403, and 404 refer to a state’s jurisdiction to prescribe.84 Jurisdiction to prescribe is a “country’s ability to make its law applicable to persons, conduct, relations, or interests.”85

Though jurisdiction to prescribe originally applied only to offenses where the injury took place on U.S. soil, over time it expanded to include some situations on foreign soil. Section 403 requires any prescription of law to be reasonable; if it is, section 402 says a nation may apply its law to “conduct outside its territory that has or is intended to have substantial effect within its territory” and to “certain conduct outside its territory … that is directed against the security of the state or against the limited class of other state interests.”86 Consistent with this approach, Justice Breyer’s Kiobel concurrence found extraterritorial jurisdiction under the ATS where the defendant’s conduct significantly impacts American interest.87

The United States has the jurisdiction to prescribe its laws to acts that occur extraterritorially. The Restatement’s jurisdiction to prescribe, which extends to acts that occur within its own territory but have effects outside its territory, is known as subjective territoriality.88 The Restatement also recognized a state’s jurisdiction over conduct that occurs outside, but has, or is intended to have, effects within its territory, which is now called objective territoriality.89

In CACI, the two parties created the contract in the United States, but the contract had effects outside of U.S. territory: the contractor’s alleged violations occurred in a prison in Iraq.90 Through subjective territoriality, the United States has jurisdiction to prescribe, meaning the ability to make its law applicable to conduct, with respect to a U.S. contract with effects outside the United States.91 This is because the contract creation occurred within the United States, but had effects outside. Objective territoriality also may be relevant to a U.S. government contractor’s actions abroad. In CACI, a government contractor allegedly violated customary international law in a prison in Iraq.92 If the violation occurred from conduct designed to obtain information to protect or otherwise affect the United States, as most government contracts executed abroad attempt to do, then the United States would have objective territoriality over this violation. Objective and subjective territoriality demonstrate the United States has power to enact laws over acts that occur beyond its territory. They both illustrate ways Congress had power to prescribe the ATS extraterritorially.

Universal jurisdiction is an exception to the traditional requirement of territory or a nationality nexus to the act or actors. Restatement section 404 explicitly states countries each have “jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade … genocide, war crimes … [and analogous behavior] even where none of the bases of jurisdiction in § 402 is present.”93 The Restatement concludes that states have jurisdiction to prescribe punishment for violations of customary international law.

The evolution of jurisdiction to prescribe and the existence of universal jurisdiction demonstrate the United States has the right to make its laws, specifically violations of customary international law, applicable to actions that occur on foreign soil. The existence of this universal jurisdiction is another way U.S. courts may find jurisdiction over these cases through the ATS.

Justice Breyer, concurring in Kiobel, stated “we should treat this Nation’s interest in not becoming a safe harbor for violators of the most fundamental international norms as an important jurisdiction-related interest justifying application of the ATS.”94 As the fifth vote for the Roberts majority opinion, Justice Kennedy’s concurrence plainly confirms the ATS may still apply to “human rights abuses committed abroad.”95

Finally, Justice Alito concurred that the holding should specifically have ruled the ATS can apply only if the alleged violation of customary international law occurred in the United States,96 essentially eradicating all extraterritorial claims under the statute. However, that the plurality opinion did not adopt this specific rule demonstrates “foreign injury cases can survive, so long as there is sufficient connection to the United States … The one thing that the Kiobel presumption cannot mean is that the ATS cases must be limited to tortious conduct within the United States.”97

B. Personal Jurisdiction as a Factor to Touch and Concern the United States
Personal jurisdiction may be a factor for the courts to consider in determining whether a claim involving a government contract touches and concerns the United States sufficiently to overcome the ATS presumption against extraterritoriality.98 Generally, exercise of personal jurisdiction is permissible under the Due Process Clause of the Fourteenth Amendment if there are sufficient minimum contacts such that the exercise of jurisdiction would comport with fair play and substantial justice.99

Personal jurisdiction is permissible under either general or specific jurisdiction.100 Determining personal jurisdiction requires a multi-factor test, weighing the burden on the defendant,101 the forum state’s interest in adjudicating the dispute,102 the jurisdictional necessity,103 and a comparative analysis of the potential forums.104 In addition, venue must be appropriate under the forum non conveniens doctrine.105

In Daimler v. Bauman,106 the plaintiffs sued under the ATS, alleging Daimler’s foreign subsidiary joined Argentinian security forces to kidnap, torture, and kill some of the subsidiary’s employees in violation of customary international law. The Supreme Court found there was no personal jurisdiction over Daimler or Daimler’s foreign subsidiary, which had few contacts with the forum state.107 The Court reasoned the Due Process Clause of the Fourteenth Amendment precluded exercising jurisdiction over the defendant corporation and its subsidiary because the forum state lacked any nexus to anything related to violation of customary international law.108

1. General Jurisdiction
General jurisdiction is based on the defendant’s contacts with the state unrelated to the specific claim at issue.109 “General jurisdiction often provides the only means of establishing jurisdiction where a case is brought in a forum with little to no connection with the underlying dispute.”110 Evidence of general jurisdiction includes presence,111 domicile (even if the entity is no longer in the state),112 and minimum contacts so continuous and systematic the defendant is at home in the forum state.113

Courts have general jurisdiction over a corporation if it has its principal place of business, is incorporated, or is domiciled in the forum state.114 However, courts have no general jurisdiction over a foreign subsidiary of a U.S. company unless courts consider the foreign subsidiary at home in the forum state.115 In addition, a foreign corporation is not subject to a court’s general jurisdiction solely based on the contacts of its subsidiary with the forum state.116

2. Specific Jurisdiction
A possible interpretation of Kiobel’s touch and concern is “an element of specific rather than general jurisdiction.”117 Courts have used the phrase “touch and concern” in defining specific jurisdiction: “[a] federal court’s jurisdiction over a person, may be either general … or specific—authority ‘to entertain controversies based on acts of a defendant that touch and concern the forum.’”118

Specific jurisdiction is personal jurisdiction over a defendant based on the defendant’s contacts with the forum state that specifically relate to the claim at hand.119 A court may find specific jurisdiction over a defendant if it consents,120 has minimum contacts with the forum state so continuous and systematic,121 purposefully avails itself to the forum state’s jurisdiction,122 its goods or services run in the forum state’s stream of commerce,123 or if the claim involves a tort action that occurred in the forum state.124 Specific jurisdiction can be found where the defendant’s act is a single, “but for” cause of the alleged injury,125 or where related contacts to the forum are such that the company enjoys the protection of the laws of the state.126

3. Forum Non Conveniens
A defendant may assert the forum non conveniens doctrine if a forum state is “a highly inconvenient place to litigate a dispute” that would violate the Due Process Clause of the Fourteenth Amendment.127 The doctrine weighs public and private interests to determine whether the case should be moved to another country, or if those interests weigh in the direction of adjudicating the case in the forum where proceedings began.128 Public interest includes state and local interest, choice of law complications, and court congestion.129

Private interests include access to evidence and witnesses, and potential costs.130 The Supreme Court applied the doctrine in Piper Aircraft Co. v. Reyno Piper Aircraft, which involved a plane crash in Scotland.131 The plane was manufactured in Pennsylvania and the propellers in Ohio.132 However, many connections to Scotland existed: all of those killed were Scottish; Scottish air traffic controlled the plane at the time of the crash; and a Scottish air taxi service, organized in the United Kingdom, operated the plane.133 The Supreme Court reversed the Court of Appeals’ decision, upholding the district court’s decision to grant defendant’s motion to dismiss on the ground of forum non conveniens.134 However, the Supreme Court noted a court may deny a motion to dismiss where it “would not be in the interest of justice” to transfer the case elsewhere.135

IV. Claims Arising Out of a U.S. Government Contract Sufficiently Touch and Concern the United States to Overcome the Presumption against Extraterritoriality

Extraterritorial and personal jurisdiction, including general and specific jurisdiction, may be relevant as courts interpret what it means to “touch and concern” U.S. territory.136 Actions carried out under a U.S. government contract touch and concern U.S. territory with sufficient force to overcome the presumption against extraterritoriality based on principles of extraterritorial and personal jurisdiction.137

A. There is Extraterritorial Jurisdiction over an ATS Claim Arising Out of a U.S. Government Contract
U.S. courts have extraterritorial jurisdiction over violations of customary international law by U.S. government contractors on foreign soil. Although there is generally a presumption against extraterritorial jurisdiction,138 Congress intended the ATS to apply extraterritorially. Moreover, the statute would become superfluous if courts did not apply it extraterritorially, and the conduct involving a U.S. government contract touches and concerns the United States with sufficient force to overcome the presumption. Thus, there is extraterritorial jurisdiction for violations of customary international law by U.S. government contractors on foreign soil.

Extraterritorial application is especially important in situations where contracts are in “weak or failing states” where “local authorities … have neither the power nor the wherewithal to challenge [the contracting] firms.”139 Violations of customary international law often occur in these weak or failing states because the governments are corrupt and fighting for power;140 U.S. government contractors are, in reality, aiding in the violations rather than preventing them.

1. Congressional Intent of the Statute
There is no legislative history for the ATS, but circumstantial evidence demonstrates Congress intended the ATS to apply extraterritorially. First, that piracy was one of the three laws of nations at the time Congress enacted the ATS141 suggests the statute applies extraterritorially. In 1789, when Congress passed the ATS, piracy usually occurred abroad.142 In 1789, if someone sued for piracy outside U.S. territory, courts would be required to apply the ATS extraterritorially. The United States continues to criminalize piracy “as defined by the ‘law of nations,’”143 demonstrating that extraterritorial conduct remains within the scope of ATS jurisdiction and applies extraterritorially just as it did in 1789.

In addition, a letter from the Attorney General to the Secretary of State suggests Congress intended the ATS to apply extraterritorially.144 In 1795, just six years ATS’s enactment, Attorney General Bradford wrote a letter to the State Department explaining the possible legal redress for the foreign victims of an attack in Sierra Leone by the French and some Americans.145 Bradford stated in his letter that “there can be no doubt” that victims “have a remedy by a civil suit” in U.S. courts because Congress “expressly [granted jurisdiction] in all cases where an alien sues for a tort only, in violation of the laws of nations.”146 This language includes exact ATS language147 and provides strong evidence Congress intended to apply the ATS extraterritorially.

Justice Breyer’s assertion in Kiobel that Congress enacted the statute with “‘foreign matters’ in mind,” referring to the statute’s mention of “aliens,” “treaties,” and “the law of nations,” bolsters this reading of the ATS.148 Justice Breyer also stated the “basic purpose” of the statute is “compensating those who have suffered harm at the hands of, e.g., torturers or other modern pirates.”149 Furthermore, at the conclusion of an ATS decision in the Seventh Circuit, the court declared the statute would be “superfluous” if Kiobel absolutely banned extraterritorial application.150 If U.S. courts deny jurisdiction to the victims of modern piracy, including violations of customary international law by U.S. government contractors, they will disturb this purpose of the statute.

2. The Purpose of the Presumption against Extraterritoriality Would Not Be Served If Applied to Claims Arising Out of a U.S. Government Contract
Applying the presumption against extraterritoriality to ATS claims does not serve the purpose of the presumption: international comity. In EEOC, the Supreme Court held the presumption applies to Title VII because the presumption protected U.S. employment discrimination laws from being projected into Saudi Arabia, a nation that lacks the same laws.151 However, unlike standard federal statutes that are unique to U.S. law, like Title VII,152 the ATS requires the claim be in violation of law common to all nations, i.e. customary international law. Because customary international law is universal, in applying the ATS extraterritorially, the United States does not project onto a foreign country any law by which it is not already bound.

3. Kiobel’s Touch and Concern Rule Applies to Claims Arising Out of a U.S. Government Contract
When a foreign plaintiff brings an ATS claim arising out of a U.S. government contract for a violation of customary international law abroad, the contract may be enough to bring the case into U.S. district courts under the ATS. To overcome the presumption against extraterritorial application, the relevant conduct alleged in the claim must “touch and concern the territory of the United States with sufficient force.”153 In Kiobel, the alleged misconduct occurred abroad and the defendants had no related U.S. government contract to the conduct.154 There, the Supreme Court found “mere corporate presence” would not overcome the presumption against extraterritoriality.155 The courts evaluate whether plaintiffs overcome the presumption on a case-by-case basis that considers “facts that give rise to ATS claims, including the parties’ identities and their relationship to the causes of action.”156 The court may look beyond where the plaintiffs actually were injured.157 This does not limit jurisdiction to conduct that occurs within the United States; jurisdiction depends on the cases relevant conduct to overcome the presumption. Thus, Kiobel does not automatically ban extraterritorial claims under the ATS. It leaves the door ajar for extraterritorial claims that sufficiently touch and concern the United States to displace the presumption against extraterritoriality.

Though “it would reach too far to say … mere corporate presence suffices,”158a contract with the government might suffice to overcome the presumption against extraterritoriality.

4. Section 402 and the Breyer Concurrence in Kiobel Further Justify Displacing the Presumption Against Extraterritoriality of the ATS Where Claims Arise Out of a U.S. Government Contract
The United States has a substantial interest in a suit where the defendant’s violation of customary international law involves a U.S. government contract, wherever it occurs. This interest derives from the United States’ desire to deter and punish violations of human rights and to demonstrate it will take responsibility for the acts it causes. Declining to prosecute a U.S. government contractor that violates the laws of nations allows the United States to become a safe harbor for the perpetrator, something the Kiobel four-justice concurrence warned against as a result of the majority’s decision to decline ATS jurisdiction.159 If the court considers the redress of violations of customary international law by a U.S. government contractor to be a (U.S.) state interest, then under both Section 402160 and Justice Breyer’s Kiobel concurrence,161 Congress has jurisdiction to prescribe to this activity and the claims displace the presumption.

B. Claims May Touch and Concern a Claim Arising Out of a U.S. Government Contract Based on Personal Jurisdiction Depending on the Type of Contractor-Defendant: Three Degrees

There is personal jurisdiction over all U.S. government contractors in at least one U.S. jurisdiction based solely on the government contract, especially where the claim is a tort, thus possibly touching and concerning the United States with sufficient force to overcome the presumption of extraterritoriality.162 By signing a contract with the U.S. government, the contractor purposefully avails itself to U.S. courts.163 It would be difficult for a U.S. government contractor to argue it is shocked to be hailed into U.S. courts because the claim arose out of its U.S. government contract.164 Thus, a tort suit, including a claim under the ATS, arising out of the contract should be subject to the jurisdiction of a U.S. court.165

In an ATS case involving a U.S. government contract, the degree of relation of a likely contractor-defendant to the United States greatly varies. However, for purposes of this analysis, this Note considers three of the most foreseeable contractor-defendants: (1) U.S. companies or individuals, (2) foreign subsidiaries of U.S. companies, and (3) totally foreign companies. The sequential order demonstrates the likelihood the defendant touches and concerns the United States sufficiently to overcome the presumption against extraterritoriality based on principles of personal jurisdiction, although it is possible for even a totally foreign company to do so because of its U.S. government contract. Nonetheless, finding ATS jurisdiction is an irreducibly case-by-case analysis.

1. U.S. Companies or Individuals Executing a U.S. Government Contract
In CACI, the plaintiffs sued a U.S. company, CACI, for torture in an Iraqi prison resulting from a U.S. government contract.166 In Salim, the plaintiffs sued the doctors who created an interrogation program for torture abroad resulting from a U.S. government contract.167 In both cases, the district courts found the claims touched and concerned the United States with sufficient force to displace the ATS presumption against extraterritoriality, permitting the court to have jurisdiction.168 Consequently, if someone sues a U.S. company with a U.S. government contract abroad under the ATS, the courts should follow the CACI and Salim precedents and find it also touches and concerns the United States with sufficient force to overcome the presumption against extraterritoriality.

For corporations, general jurisdiction exists if the defendant’s principal place of business is in the state, if the corporation is incorporated in the state, or if the corporation carries on a continuous and systematic part of its business in the state.169 The court is most likely to find general jurisdiction over U.S. government contractors that are U.S. companies, as long as the plaintiff sues in the state where the company is headquartered or does a large amount of its business. Their contacts with the state are probably so continuous and systematic to be considered minimum contacts, satisfying personal jurisdiction in U.S. courts. Therefore, if the touch and concern test does factor in personal jurisdiction principles, it is that much more likely the claim sufficiently touches and concerns the United States to displace the presumption.

2. Foreign Subsidiaries of U.S. Companies Executing a U.S. Government Contract
The ATS applies extraterritorially to conduct by an American U.S. government contractor or its subsidiary. In KBR, a foreign plaintiff sued KBR, a subsidiary of an American, U.S.-based government contractor, Daoud, which plaintiffs also sued, pursuant to the ATS for conduct that occurred wholly abroad.170 The Fifth Circuit found the claims did not touch and concern the United States with sufficient force to overcome the presumption of extraterritoriality because all conduct occurred outside of U.S. territory.171 However, the opinion did not analyze KBR’s U.S. government contract as a potential factor to touch and concern the United States. For procedural reasons, the court denied the plaintiff’s motion to amend and include this argument.172 This is a forewarning to future litigants that where plaintiffs argue a defendant’s U.S. government contract touches and concerns the United States, the courts may have jurisdiction over the U.S. company as well as its subsidiary.

There may be sufficient personal jurisdiction via general jurisdiction over foreign subsidiaries of U.S. companies to touch and concern the territory of the United States such that U.S. courts have jurisdiction over the claim. With regards to a foreign subsidiary of a U.S. company defendant, courts find general jurisdiction only if the foreign subsidiary is “at home” in the forum state.173 Thus, courts find no general jurisdiction over a contractor that is a foreign subsidiary of a U.S. company, unless the court concludes the subsidiary carries on a continuous and systematic part of its business in the forum state.

3. Foreign Companies Executing a U.S. Government Contract
A foreign company may not have any contacts with the United States other than a U.S. government contract. However, even if the foreign company’s conduct occurred abroad, simply having a government contract should meet the standard for specific personal jurisdiction sufficiently for courts to have jurisdiction over those foreign companies under the ATS. Neither Kiobel nor Morrison involved conduct arising out of a U.S. government contract.174 Where the facts are similar to those in Kiobel and Morrison but the claim relates to a U.S. government contract, a court could find the defendant purposefully availed itself to U.S. jurisdiction, and thus ultimately the court has specific jurisdiction over the defendants.

In addition, a foreign corporation is not subject to a court’s general jurisdiction solely based on the contacts of its subsidiary with the forum state.175 In Daimler, the plaintiffs sued a foreign corporation under the ATS.176 The foreign defendant company had a subsidiary with unrelated contacts to the forum state, and neither the subsidiary nor the parent company had a contract with the United States.177 The Supreme Court held general jurisdiction cannot be exercised over a foreign company where the actions of the subsidiary are slim and unrelated to the suit.178 However, if the subsidiary had a U.S. government contract, and the conduct alleged resulted from the contract, the court would be more likely to find specific jurisdiction over the foreign company.

C. Forum Non Conveniens
Once the court determines jurisdiction, in most cases, it will not grant a contractor-defendant’s motion to transfer out of the United States pursuant to forum non conveniens.179 The doctrine provides U.S. courts with discretion to refuse to hear cases where there is a more appropriate forum available to the parties.180 U.S. courts are, for most ATS claims, the most appropriate forum for adjudication because there are often no other suitable forums. “Many human rights plaintiffs in the United States may not be able to return to the countries of abuse to seek judicial compensation from their abusers, and they should not be forced to do so by U.S. courts.”181 In addition, “[p]laintiffs who flee human rights abuses in foreign states also often flee corrupt governments or judiciaries incapable of providing them justice.”182 However, there may be times where other forums are appropriate, and potentially more appropriate than U.S. courts, to adjudicate an ATS claim. The decision to transfer via forum non conveniens should give rise to an equitable determination, because it is flexible and applied on a case-by-case basis.

Unlike in Piper Aircraft, where the Supreme Court dismissed a claim via forum non conveniens,183 it would be less likely for a court to grant a motion to dismiss under this doctrine, because a U.S. government contract is a key element of the claim. The government contract would be a strong “interest” to weigh the balancing test in favor of keeping the case in the United States. However, courts have denied motions to dismiss by forum non conveniens in ATS cases in the past, so there is no reason to think they would grant one in the future.184

V. Conclusion

The courts may find jurisdiction over a defendant-contractor when sued under the ATS because the claim sufficiently touches and concerns the territory of the United States through both extraterritorial and personal jurisdiction.

Entity:
Topic:
  1. See Ralph G. Steinhardt, Determining Which Claims “Touch and Concern” the United States: Justice Kennedy’s Filartiga, 89 NOTRE DAME L. REV. 1695, 1716 (2014).
  2. 28 U.S.C. § 1350 (2012); Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124 (2013) (ruling that the presumption against extraterritoriality applies to the Alien Tort Statute (ATS) unless the claims sufficiently touch and concern the territory of the United States).
  3. 28 U.S.C. § 1350.
  4. See Al Shimari v. CACI Int’l Inc., 951 F. Supp. 2d 857, 858 (E.D. Va. 2013).
  5. See id.
  6. 569 U.S. 108 (2013).
  7. See Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 517, 520 (4th Cir. 2014).
  8. See Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 162 (4th Cir. 2016).
  9. Al Shimari v. CACI Premier Tech., Inc., No. 1:08-cv-00827 (E.D. Va. Jan. 9, 2018).
  10. INTERNATIONAL LABOR RIGHTS FORUM, PROTECTING HUMAN RIGHTS THROUGH GOVERNMENT PROCUREMENT 1 (2015) (“Unfortunately, current federal procurement policy only seeks to protect workers in global supply chains from scattered harms …”).
  11. See, e.g., Dominique Stump, Bluewater Defense Gets $119M Military Uniform Supply Contract Modification, GOVCONWIRE, Jan. 13, 2017, https://www.govconwire.com/2017/01/bluewater-defense-gets-119m-military-uniform-supply-contract-modification/.
  12. See e.g., Fila´rtiga v. Pen˜ a-Irala, 630 F.2d 876, 884–85 (2d Cir. 1980) (finding that torture is an actionable violation of the law of nations); Abdullahi v. Pfizer, Inc., 562 F.3d 163, 187 (2d Cir. 2009) (finding non-consensual human medical testing to be an actionable violation of customary international law under the Alien Tort Statute (ATS)); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1987).
  13. However, many argue international law is ineffective and imaginary. See e.g., Beth A. Simmons, Money and the Law: Why Comply with the Public International Law of Money?, 25 YALE J. INT’L L. 323, 323–24 (2000) (“[L]egal scholars and practitioners believe that the rules at the center of their analysis do indeed matter … Scholars of international relations … have been far more skeptical.”); Frederic L. Kirgis, Enforcing International Law, 1(1) INSIGHTS 1 ( Jan. 22, 1996), https://www.asil.org/insights/volume/1/issue/1/enforcing-international-law (there is an “assumption … that international law cannot be enforced”). However, the ATS is an enforceable federal statute. Congress enacted the statute; thus it has direct, binding effects on those actors who meet the requisite elements for a claim.
  14. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124 (2013).
  15. See id.
  16. See Winston P. Nagan & Craig Hammer, The Rise of Outsourcing in Modern Warfare: Sovereign Power, Private Military Actors, and the Constitutive Process, 60 ME. L. REV. 429, 456 (2008).
  17. An alternative solution to the lack of enforcement for U.S. government contractors’ human rights abuses is to add relevant provisions to the Federal Acquisition Regulation (FAR). These would include a regulation declaring that all entities that sign a contract with the U.S. government are bound by customary international law and, in signing the contract, they consent to jurisdiction in U.S. courts for an ATS claim. Because a violation of customary international law is so odious, the courts will also find these provisions sufficiently important and necessary to read into all government contracts per the G.L. Christian doctrine. See G.L. Christian v. United States, 312 F.2d 418, 425–27 (Ct. Cl. 1963). The Christian doctrine declares that procurement regulations mandate inclusion of some standardized clauses in government contracts (including the FAR), requiring those clauses to be read into contracts of which they are factually applicable even if the contracting officer did not include them in the contract.
  18. In each fact pattern, I assume the defendant violated recognized customary international law and was executing a U.S. government contract when the violation occurred.
  19. See, e.g., Saikrishna Prakash, The Constitutional Status of Customary International Law, 29 HARV. J.L. & PUB. POL’Y 65, 69 (2006). This Note refers to the “law of nations” as customary international law throughout.
  20. See 4 WILLIAM BLACKSTONE, COMMENTARIES *69.
  21. 28 U.S.C. §1350 (2012).
  22. Judiciary Act of 1789, § 9, 1 Stat. 73, 76–77 (codified as amended at 28 U.S.C. § 1350 (2012)).
  23. See BLACKSTONE, supra note 20, at *69.
  24. See Prakash, supra note 19, at 69.
  25. See EMER DE VATTEL, LAW OF NATIONS: OR, PRINCIPLES OF THE LAW OF NATURE, APPLIED TO THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS xi ( Joseph Chitty, trans., 6th ed. 1844); see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 (2) (1987).
  26. See RESTATEMENT (THIRD) U.S. FOREIGN RELATIONS § 701.
  27. Id. § 702.
  28. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004) (holding that to qualify as actionable conduct under the ATS, the conduct must “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”). In Sosa, an alien sued the United States and DEA agents for arbitrary detention. Sosa, 542 U.S. at 698. The Court found that because arbitrary detention did not rise to the level of customary international law as defined by the rule, it was not actionable under the ATS. Id. at 736–38.
  29. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 131 (2013) (Breyer, J., concurring); see also Steinhardt, supra note 1, at 1712 (“In the modern era, torture, genocide, and crimes against humanity make the perpetrators the enemies of all humankind because humanitarian disasters and grave human rights violations respect no territorial lines.”).
  30. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984) (quoting 1 L. OPPENHEIM, INTERNATIONAL LAW § 272, at 609 (H. Lauterpacht 8th ed. 1955)).
  31. Kiobel, 569 U.S. at 131 (Breyer, J., concurring).
  32. See supra Part I.
  33. Al Shimari v. CACI Premier Tech., Inc., 657 F. Supp. 2d 700, 731–32 (E.D. Va. 2009). To qualify as actionable conduct under the ATS, the conduct must “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.” Sosa, 542 U.S. at 725.
  34. See Al Shimari v. CACI Int’l Inc., 951 F. Supp. 2d 857, 865 (E.D. Va. 2013).
  35. See Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 159, 162 (4th Cir. 2016). In the past, courts found that the political question doctrine may make some ATS cases nonjusticiable. See Taylor v. Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 411–12 (4th Cir. 2011); El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 851 (D.C. Cir. 2010). However, on October 21, 2016, the U.S. Court of Appeals for the Fourth Circuit held that “[t]he Political Question doctrine does not shield from judicial review intentional acts by a government contractor that were unlawful at the time they were committed.” CACI, 840 F.3d at 162. In addition, “[u]niversally recognized norms of international law provide judicially discoverable and manageable standards for adjudicating suits under the Alien Tort Act.” Kadiv v. Karadzic, 70 F.3d 232, 249 (2d Cir. 1995). Therefore, since all valid causes of action under the ATS are violations of customary international law and thus always unlawful, the political question doctrine does not apply to a U.S. government contractor that violates customary international law. See CACI, 840 F.3d at 158 (“when a military contractor acts contrary to settled international law &hellilp; the separation of powers rationale underlying the political question doctrine does not shield the contractor’s actions from judicial review”).
  36. CACI, 840 F.3d at 159.
  37. See DE VATTEL, supra note 25.
  38. CACI, 840 F.3d at 159.
  39. Salim v. Mitchell, 183 F. Supp. 3d 1121, 1123 (E.D. Wash. 2016).
  40. Id. at 1133.
  41. Id. at 1127.
  42. Id. at 1132.
  43. Id. at 1133.
  44. Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 190–91 (5th Cir. 2017).
  45. Id. at 190.
  46. Id. at 190–91.
  47. Id. at 191.
  48. Id. at 197–99.
  49. Id. at 199–200.
  50. See Steinhardt, supra note 1, at 1702; Morrison v. Nat’l Australian Bank Ltd, 547 F.3d 167, 172 (2d Cir. 2008); Oona Hathaway, Kiobel Commentary: The Door Remains Open to “Foreign Squared” Cases, SCOTUSBLOG (Apr. 18, 2013, 4:27 PM), http://www.scotusblog.com/2013/04/kiobel-commentary-the-door-remains- open-to-foreign-squared-cases/.
  51. Morrison v. Nat’l Australian Bank, Ltd., 561 U.S. 247, 251 (2010).
  52. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 111–12 (2013).
  53. Morrison, 561 U.S. at 251.
  54. Id. at 255–73.
  55. Kiobel, 569 U.S. at 112.
  56. Id. at 124.
  57. Id. at 125.
  58. Ryan Micallef, Liability Laundering and Denial of Justice: Conflicts Between the Alien Tort Statute and the Government Contractor Defense, 71 BROOK. L. REV. 1374, 1411 (2006).
  59. See id.
  60. The general default is that the U.S. government may not be sued without its permission. See id. at 1401. The Federal Tort Claims Act (FTCA) then created a waiver of sovereign immunity for the United States, subject to some exceptions. 28 U.S.C. §§ 1346, 2671–2680 (2005) (granting jurisdiction over claims against the United States with certain exceptions). One of these exceptions is that “the government remains immune to claims arising in a foreign country and to claims related to military actions.” Micallef, supra note 58, at 1401; see Feres v. United States, 340 U.S. 135, 146 (1950) (creating the Feres exception, which says that the government is immune from claims relating to military conduct).
  61. See Micallef, supra note 58, at 1411.
  62. See id.
  63. See Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).
  64. See Micallef, supra note 58, at 1399.
  65. See id. at 1405 (citing Hudgens v. Bell Helicopter, 328 F.3d 1329, 1334 (11th Cir. 2003) (reasoning “that the same policy for making the Defense available in products liability suits against supplies also applies when victims sue for harms caused by service contractors”)). The extension of this defense to service contracts “is important because in practice, service contractors are more likely to violate human rights than manufacturing or design contractors.” Id.
  66. Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 151 (4th Cir. 2016).
  67. See Steinhardt, supra note 1, at 1706.
  68. See Morrison v. Nat’l Australian Bank, Ltd., 561 U.S. 247, 255 (2010) (“When a statute gives no clear indication of an extraterritorial application, it has none.”); Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007) (there is a “presumption that United States law governs domestically but does not rule the world.”).
  69. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 118 (2013).
  70. EEOC v. Arabian Am. Oil Co., 499 U.S. 224, 248 (1991).
  71. Id. at 248 (finding that the presumption against extraterritoriality applies to Title VII).
  72. Id. at 247.
  73. See id. at 259.
  74. See id. at 255.
  75. Kiobel, 569 U.S. at 115.
  76. Id. at 124–25.
  77. Steinhardt, supra note 1, at 1703–04.
  78. See, e.g., Xander Kerr Meise, The ATS’s Second Act: The Supreme Court Looks to Address the Unanswered Questions of Kiobel, CORP. SOC. RESP. & L. (Apr. 23, 2013), http://www.csrandthelaw.com/2013/04/23/the-atss-second-act-the-supreme-court-looks-to-address-the-unanswered-questions-ofkiobel/; Donald Childress, Kiobel Commentary: An ATS Answer withMany Questions (and the Possibility of a Brave New World of Transnational Litigation), SCOTUSBLOG (Apr. 18, 2013), http://www.scotusblog.com/2013/04/kiobel-commentary-an-ats-answer-with-many-questions-and-thepossibility-of-a-brave-new-world-of-transnational-litigation/; Morgen Morrissette, Fighting “Today’s Pirates”: Kiobel and the Future of ATS Claims, A.B.A. (June 24, 2013), http://apps.americanbar.org/litigation/committees/civil/articles/062413-fighting-todays-pirates-kiobel-future-ats-claims.html (stating that the Kiobel decision “created more questions than it answered”).
  79. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 125 (2013) (Kennedy, J., concurring).
  80. Id. at 127 (Breyer, J., concurring).
  81. Id.
  82. Id. at 127, 133 (Breyer, J., concurring) (reminding the Court that “[i]nternational norms have long included a duty not to permit a nation to become a safe harbor for pirates (or their equivalent)”).
  83. Id. at 127.
  84. See RESTATEMENT (THIRD) U.S. FOREIGN RELATIONS §§ 402–04.
  85. BENCHBOOK ON INTERNATIONAL LAW § II.A (Diane Marie Amann ed., 2014).
  86. RESTATEMENT (THIRD) U.S. FOREIGN RELATIONS §§ 402–03.
  87. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 127 (2013) (Breyer, J., concurring).
  88. MICHAIL VAGIAS, THE TERRITORIAL JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT 39 (2014); see RESTATEMENT (THIRD) U.S. FOREIGN RELATIONS § 402 (1)(a).
  89. VAGIAS, supra note 88, at 40; RESTATEMENT (THIRD) U.S. FOREIGN RELATIONS § 402 (1)(c).
  90. See Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 151 (4th Cir. 2016).
  91. Jurisdiction to prescribe is “a country’s ability to make its law applicable to persons, conduct, relations, or interest.” BENCHBOOK ON INTERNATIONAL LAW, supra note 85, § II.A.
  92. See CACI, 840 F.3d at 151.
  93. RESTATEMENT (THIRD) U.S. FOREIGN RELATIONS § 404.
  94. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 133 (2013) (Breyer, J., concurring).
  95. Steinhardt, supra note 1, at 1705 (citing Kiobel, 133 U.S. at 125 (Kennedy, J., concurring) (emphasis added)).
  96. See Kiobel, 133 U.S. at 127 (Alito, J., concurring).
  97. See Steinhardt, supra note 1, at 1705 (“That standard would of course bar some of the most celebrated decisions in the history of ATS litigation, including those cited in Sosa itself, like Filartiga, Kadic, and In re Estate of Marcos.”).
  98. See id. at 1706.
  99. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); see Burger King v. Rudzewicz, 471 U.S. 462, 476 (1985).
  100. See Grant Esposito et al., The Shrinking Doctrine of Specific Personal Jurisdiction, LAW360 ( June 22, 2017), https://www-law360com.gwlaw.idm.oclc.org/articles/937157/the-shrinkingdoctrine-of-specific-personal-jurisdiction.
  101. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987).
  102. See Keeton v. Hustler Mag., Inc., 465 U.S. 770, 775–76 (1984).
  103. See Perkins v. Benguet Mining Co., 342 U.S. 437, 446–47 (1952).
  104. See Kulko v. Superior Court, 436 U.S. 84, 92–101 (1978).
  105. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504–07 (1947) (finding venue inappropriate because it was more appropriate elsewhere).
  106. 134 S. Ct. 746, 751 (2014).
  107. See Daimler v. Bauman, 134 S. Ct. 746, 750–51 (2014).
  108. See id. at 758–62.
  109. See generally id. at 751; Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
  110. Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of Consent, 36 CARDOZO L. REV. 1343, 1349 (2015).
  111. See Burnham v. Superior Court, 495 U.S. 604, 619 (1990) (finding that a person being served in the state via tag service or having property in the state provides general jurisdiction).
  112. See Milliken v. Meyer, 311 U.S. 457, 462 (1940) (finding that defendant’s domicile status was sufficient for the court to have general jurisdiction over the defendant).
  113. See Goodyear, 564 U.S. at 921 (finding that percentage of its business carried out in the state is more important than the magnitude of work it does in this state when determining sufficient minimum contacts); see also Daimler v. Bauman, 134 S. Ct. 746, 754 (2014) (noting the same); Coastal Video Commc’ns Corps. v. Staywell Corp., 59 F. Supp. 2d 562, 571–72 (E.D. Va. 1999) (finding that the quantity of business carried out in the state determinative in establishing minimum contacts).
  114. Goodyear, 564 U.S. at 919.
  115. See id. at 929–31 (finding no general jurisdiction over a foreign subsidiary with no affiliation to the forum state of California).
  116. See Daimler, 134 S. Ct. at 760–62.
  117. Steinhardt, supra note 1, at 1704 (citing Steinberg v. Int’l Criminal Police Org., 672 F.2d 927, 928 (D.C. Cir. 1981) (Ginsburg, J.)).
  118. Steinhardt, supra note 1, at 1704 (citing Elemary v. Holzmann, 533 F. Supp. 2d 116, 123 (D.D.C. 2008) (emphasis added) (quoting Steinberg, 672 F.2d at 928)).
  119. See Esposito, supra note 100 (citing Goodyear Dunlop Tires, S.A. v. Brown, 564 U.S. 915 (2011)).
  120. See Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9–14 (1972) (finding that a forum selection clause between two sophisticated parties is enough for specific jurisdiction over either of the parties); Carnival Cruise Lines v. Shute, 499 U.S. 585, 593–95 (1991) (finding that a forum selection clause between one sophisticated and one unsophisticated party is enough for specific jurisdiction over either party if it passes the fundamental fairness test).
  121. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 320 (1945).
  122. See World-Wide-Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (finding that if it is foreseeable that the party will be hailed to court in the forum, there is specific jurisdiction over the party); Hanson v. Denckla, 357 U.S. 235, 253 (1958) (establishing that purposeful availment is not “unilateral activity of those who claim some relationship with a nonresident defendant”).
  123. See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881–82 (2011) (noting that intentionally targeting the forum market is enough for specific jurisdiction); World-Wide-Volkswagen, 444 U.S. at 297–98.
  124. See Keeton v. Hustler Mag., Inc., 465 U.S. 770, 773–74, 780–81 (1984).
  125. See Shute v. Carnival Cruise Lines, 897 F.2d 377 385–86 (9th Cir. 1990), rev’d on other grounds, 499 U.S. 585 (1991).
  126. See Int’l Shoe, 326 U.S. at 319 (holding that there was specific jurisdiction over the corporate defendant because it had multiple employees stationed and selling in the forum state who were afforded the protection of the laws of the forum state).
  127. Daimler v. Bauman, 134 S. Ct. 746, 771 (2014); see generally Edward L. Barret, Jr., The Doctrine of Forum Non Conveniens, 35 CALIF. L. REV. 380, 380–421 (1947).
  128. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947).
  129. Id.
  130. Id. at 508.
  131. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 238 (1981).
  132. Id. at 239.
  133. Id.
  134. Id. at 261.
  135. Id. at 254 (citing 28 U.S.C. § 1404(a) (1976) (“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”)).
  136. See Steinhardt, supra note 1, at 1706.
  137. See id. at 1707, 1710 (“A fortiori, the conduct of an American corporation, under contract with the United States government, for the performance of governmental functions like the treatment of detainees at a U.S. facility, necessarily ‘touches and concerns’ the United States.”) (“[S]ervices provided under a U.S. government contract and delivered at a U.S. military installation—completely under U.S. military control though located in a foreign country — ‘touch and concern’ the territory of the United States.”).
  138. See Morrison v. Nat’l Australian Bank, Ltd., 561 U.S. 247, 248 (2010) (“When a statute gives no clear indication of an extraterritorial application, it has none.”).
  139. P.W. Singer, War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law, 42 COLUM. J. TRANSNAT’L L. 521, 535 (2004).
  140. Nigeria is an example of a country with both a weak, corrupt government and multiple occurrences of violations of customary international law. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 113–14 (2d Cir. 2010) (considering the Nigerian government’s alleged torture and extrajudicial killings of its citizens); Abdullahi v. Pfizer, Inc., 562 F.3d 163, 187 (2d Cir. 2009) (finding that non-consensual medical experiments perpetrated by the Nigerian government and a pharmaceutical company violated customary international law).
  141. See BLACKSTONE, supra note 20, at *69.
  142. See Convention on the High Seas, Apr. 29, 1958, art. 15 (a)(i), 61 (“piracy consists of any of the following acts: (1) any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed (a): on the high seas …”); BLACKSTONE, supra note 20, at *72.
  143. Theodore T. Richard, Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy, 39 PUB. CONT. L.J. 411, 439 (2010).
  144. See Breach of Neutrality, 1 Op. Att’y Gen. 57, 58 (1795).
  145. See id.
  146. Id. at 59.
  147. 28 U.S.C. § 1350 (2012) (“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.”).
  148. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 129 (2013) (Breyer, J., concurring).
  149. Id. at 133 (2013) (Breyer, J., concurring) (“Nothing in the statute or its history suggests that our courts should turn a blind eye to the plight of victims in that ‘handful of heinous actions.’”).
  150. See Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1025 (7th Cir. 2011).
  151. EEOC v. Arabian Am. Oil Co., 499 U.S. 224, 255 (1991).
  152. See id. at 255–59 (finding that Title VII did not apply extraterritorially because it did not violate international law or Saudi Arabia’s law, where the violation occurred).
  153. Kiobel, 133 U.S. at 124–25.
  154. Id. at 124.
  155. Id. at 125.
  156. Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 517, 527 (4th Cir. 2014).
  157. Id. at 529.
  158. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 125 (2013); see CACI, 758 F.3d at 528 (finding that “when a claim’s substantial ties to United States territory include the performance of a contract executed by a United States corporation with the United States government,” courts require further inquiry).
  159. Kiobel, 133 U.S. at 127–28 (Breyer, J., concurring).
  160. RESTATEMENT (THIRD) U.S. FOREIGN RELATIONS § 402.
  161. Kiobel, 133 U.S. at 127–40 (Breyer, J., concurring).
  162. Conversation with Joshua I. Schwartz, Nov. 11, 2016, Notes on File.
  163. Id.
  164. Id.
  165. Id.
  166. See Al Shimari v. CACI Int’l Inc., 951 F. Supp. 2d 857, 858 (E.D. Va. 2013).
  167. See Salim v. Mitchell, 183 F. Supp. 3d 1121, 1123 (E.D. Wash. 2016).
  168. See Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 517 (4th Cir. 2014); Salim, 183 F. Supp. 3d at 1133.
  169. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (citing Brilmayer et al., A General Look at General Jurisdiction, 66 TEX. L. REV. 721, 728 (1988)).
  170. See Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 191 (5th Cir. 2017).
  171. See id. at 191–99.
  172. See id. at 199–200.
  173. See Goodyear, 564 U.S. at 919 (finding no general jurisdiction over a foreign subsidiary with no affiliation to the forum state).
  174. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124 (2013); Morrison v. Nat’l Australian Bank Ltd., 561 U.S. 247 (2010).
  175. See Daimler v. Bauman, 134 S. Ct. 746, 760–62 (2014).
  176. See id. at 751–52.
  177. See id. at 752.
  178. See id. at 760.
  179. See Barret, Jr., supra note 127, at 386.
  180. Id.
  181. Aric K. Short, Is the Alien Tort Statute Sacrosanct — Retaining Forum Non Conveniens in Human Rights Litigation, 33 N.Y.U. J. INT’L L. & POL. 1001, 1003 (2001).
  182. Id. at 1003.
  183. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 261 (1981).
  184. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 108 (2d Cir. 2000); Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir. 1998).