A Bid to Litigate the Legality of U.S.-Sponsored Torture in Federal Court: Will It Succeed?

By ANTHONY J. SEBOK
Tuesday, Jun. 05, 2007

Last week, the ACLU filed a suit that could provide human rights activists with an ingenious mechanism to allow a federal court to litigate whether torture sponsored by the U.S. is a tort - which would, in turn, mean its victims would be entitled to money damages.

This lawsuit is clever -- perhaps too clever, I will argue below, because it cannot be tried unless the entire government policy of extraordinary rendition is tried, and this is something I cannot imagine a federal court doing.

Still, the lawyers behind this suit are to be credited for trying to use a federal statue - the Alien Tort Statute (ATS) - creatively to promote human rights.

The Lawsuit, Its Allegations, and the Theory Behind It

The case is called Binyam Mohamed, et. al. v. Jeppesen Dataplan, Inc., and it was filed in the U.S. District Court for the Northern District of California.

Jeppesen Dataplan, Inc. ("Jeppesen") is a private company owned by Boeing, which provides a service euphemistically referred to as "trip planning." According to Jane Mayer's October 30, 2006 article in the New Yorker entitled "The CIA's Travel Agent," Jeppesen helped the CIA arrange international flights that moved suspected terrorists from one country to another that uses torture in its interrogations. The practice of turning over suspects to torture-condoning countries is known as "extraordinary rendition."

According to the suit, the plaintiffs--a British resident, an Italian citizen, and an Egyptian citizen--were seized off the street and flown to prisons in Morocco, Egypt, and Afghanistan, where they were illegally held and tortured by intelligence officers from the United States, Egypt, and Morocco.

Jeppesen's employees did not physically touch the plaintiffs in the suit, nor did they fly the planes that carried them. Instead, Jeppesen is alleged to have made the logistical arrangements necessary for the trips, which were as complex as they were clandestine. According to the suit, Jeppesen was paid handsomely to arrange the landing clearances, flight plans, ground crews, and even hotel rooms, as these "black planes" hopscotched between Washington, D.C.; Stockholm; Rabat; Cairo; and other far-flung destinations.

The suit alleges that the three plaintiffs suffered horribly in the months that followed their rendition, and that Jeppesen knew what would happen to them. As a result, the three men are suing Jeppesen under the ATS for damages resulting from the violations of their human rights.

The Key Question: Can a Government Contractor Be Sued Under the ATS?

The suit against Jeppesen is not the first lawsuit to name a government contractor as a defendant under the ATS. To the contrary, as I noted in an earlier column, suits have been brought against some of the government contractors who provided guards at the Abu Ghraib prison. These ATS claims -- against Titan Corp. and CACI --were dismissed by Judge James Robertson of the United States District Court for the District of Columbia. However, as I explained in my prior column, Judge Robertson's application of precedent, while technically correct, was woefully in conflict with better- reasoned precedent from other circuits, including the Ninth.

Now, the Ninth Circuit can return to the question that the D.C. Circuit would not touch: Can a government contractor be liable under the ATS for implementing a government policy that clearly violates customary international law and treaties signed by the United States? I think the answer has to be yes.

Why It's Impossible to Go After Government Contractors Under the FTCA

Before discussing why it may be possible to sue a government contractor under the ATS, it's first important to cover why it is impossible to sue such a contractor under the Federal Tort Claims Act ("FTCA").

The FTCA waives sovereign immunity for the federal government in cases where it commits either negligence, or one among a narrow set of intentional torts. In addition to protecting government entities themselves, FTCA doctrine includes a specific "government contractor defense" ("GCD").

The GCD was developed in the context of products liability litigation against helicopter manufacturers alleged to have defectively designed an aircraft in a way that caused the death of U.S. servicemen. It says that a private company that performs a service under the control and behest of the U.S. Government enjoys the same legal immunity that the federal government does, under the FTCA.

In addition, and importantly, the FTCA is only a partial waiver of immunity - one that does not apply in certain circumstances that are quite relevant to the so-called "War on Terror." For example, the FTCA does not allow tort suits based on injuries which occur outside the United States. This might exclude, for example, torts that occur at Guantanamo Bay, and it certainly would exclude torts that occurred in a prison in Cairo or Rabat. Furthermore, the courts have extended the FTCA to exclude all torts that occurred during combat or "times of war." Arguably, the "War on Terror" counts as a "war."

As a result, the chances of suing a private government contractor under the FTCA for committing a tort--even when that tort is also a violation of human rights--are quite slight.

It is thus no surprise that the ACLU did not even try to argue, in the alternative, that Jeppesen could be sued not only in its capacity as a private company, but also in its capacity as a government agent. Instead, the ACLU wisely opted to stay as far away from the question of government immunity as possible.

Why the ATS Suit Might Work, When an FTCA Suit Would Not

That brings us to the basis of the ACLU's suit against Jeppesen- the Alien Tort Statute (ATS). The three plaintiffs' allegations, on their face are simple: They say Jeppesen aided and abetted torture by the government, not that it in some sense acted as the government.

Notably, then, the complaint does not distinguish between torture inflicted by the CIA (the agents of which arguably could not be sued in federal court) and by the intelligence services of, for example, Egypt and Morocco (the agents of which, arguably, could be sued). That is because the plaintiffs' theory is that Jeppesen's liability - as aider and abettor -- is not controlled by the ultimate potential liability of the nations it aided, or by any federal law or constitutional doctrine that might protect the U.S. Government for its actions.

Will the Suit Be Quickly Dismissed? Don't Count on It - Thanks to a Supreme Court Precedent that Left the Key Question Open

Various media commentators have suggested that the ACLU ATS suit will quickly be dismissed on "national security" grounds. But that won't necessarily happen.

That's because the Jeppesen suit reintroduces a question that was quietly avoided in the 2004 U.S. Supreme Court decision in Sosa v. Alvarez-Machain. Until now, Alvarez-Machain was the last word from the court on the ATS. There, the Court said that the tort alleged by the plaintiff--kidnapping--was not within the substantive grant of jurisdiction of the ATS. But it did not resolve whether the ATS encompassed more grievous wrongs, such as torture.

Like Jeppesen, Alvarez-Machain involved private citizens working for the U.S. Government in a foreign country: Mexican bounty hunters kidnapped the plaintiff in Mexico; took him by car to the U.S. border; and literally threw him over the border, where American federal agents arrested him. The plaintiff sued the bounty hunters under the ATS.

Because the Court held kidnapping was not within the ATS's scope, it never reached the question of whether the bounty-hunters' conduct could, in any case, have been immune from suit because they were acting under clear and direct U.S. Government direction. Plainly not government contractors, the bounty hunters were, at most, foreign independent contractors, performing an act the U.S. Government did not want to perform through its own employees or agents.

Potentially, the parallel between Alvarez-Machain and Jeppesen is strong. In the first, the defendants allegedly threw a kidnapped man across a border; in the second, they allegedly flew kidnapped men across borders.

Putting the "War on Terror" on Trial?

Yet despite this parallel, can the federal courts ever be the appropriate place to judge the War on Terror? The question at the heart of the Jeppesen suit--whether it is an actionable violation of the law of nations to aid and abet torture--is one that the present Administration answered a long time ago to its own satisfaction. According to the memos written by its lawyers, the Administration's answer is "No."

If that is the case, then is it fair to leave companies like Jeppesen to take the fall for the government's policy decisions? As much as I dislike the choices made by the Administration, I am queasy about making firms like Jeppesen their scapegoat.

This same queasiness may convince a federal court to decline jurisdiction on the grounds that, to decide the case, it would have to resolve a "political question" - one reserved for the political branches, the Executive and the Legislature. Indeed, that may be the most honest ruling the court could reach. To instead read into the ATS some kind of government contractor immunity, would be merely an obfuscation.

If the federal courts are going to let those who assisted our government's pursuit of its policy of torture off the hook, they should do so transparently and openly -- by invoking the political question doctrine. Doing so would appropriately placing the responsibility for the human rights violations alleged to have occurred, back where it belongs--in the Executive Branch.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.

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