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Speaking Hypothetically: What to Do When a PMC Tortures

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Let's just suppose for a moment, speaking hypothetically, that a private military contractor engaged in acts of torture. I write "hypothetically" because PMCs mentioned in the past (think CACI and Titan at Abu Ghraib) in this regard fiercely object to the idea that they did any such thing. And even if they did something that was not perhaps one hundred percent kosher, even if it wasn't torture, (think of John Yoo's infamous memo on permissible interrogation techniques back when he was in the Bush Administration's Department of Justice's Office of Legal Counsel (OLC) during 2001 to 2003) a PMC could argue they were just doing what their U.S. government client wanted or ordered.

One wonders if a PMC really wants to use the same defense that Nazi war criminals used back at the Nuremberg tribunal, i.e., I was just following orders, but that is the subject of another post.

Anyway, the question remains; what can be done about it if such a thing happens? That sounds like a legal question, and there are very few legal issues that, sooner or later, don't get written about in a law journal. And, serendipitously a recent issue of the Santa Clara Law Review addresses this very question (50 Santa Clara L. Rev. 1277). The modest (for a law journal), 18,789 word article, titled "SUING PRIVATE MILITARY CONTRACTORS FOR TORTURE: HOW TO USE THE ALIEN TORT STATUTE WITHOUT GRANTING SOVEREIGN IMMUNITY-RELATED DEFENSES" is by law student Efrain Staino.

The Alien Tort Statute (ATS) has been written about quite a lot as a tool for ensuring PMC accountability, as in this law journal article published last year, but this is the first article I have seen to evaluate its utility just on the torture issue.

In his introduction Staino writes that allegations of atrocities committed by private military contractors have exposed weaknesses in our legal system's ability to hold the perpetrators accountable and deliver justice to the victims. The main questions for the courts to answer are whether, and to what extent, private contractors can be held liable for acts that amount to torture as defined by international law and incorporated into U.S. law. These questions give rise to a number of issues concerning the amount of official government involvement required for an act to be defined as torture and when, if ever, a private contractor is exempt from liability under state sovereign immunity or other related defenses.

Staino's bottom line is that federal courts can hold a private contracting corporation or its employees liable under the ATS for acts that amount to torture under international law without automatically granting the defendant's affirmative defense of sovereign immunity or the government contractor defense.

He notes that traditionally, to find the private contractor liable for torture, the plaintiff must argue that there was government involvement in the commission of the act, but this argument also strengthens the defendant's immunity related defenses. Without the government's involvement, the plaintiff's torture claim will fail, and if defendant prevails on the affirmative defense, the contractor will receive impunity for the atrocities. Either outcome would leave the plaintiff without a legal remedy.

Staino's solution is "recognizing that the level of government or official involvement required for an act to meet the definition of torture is significantly lower than the level required for the private contractor to assert the affirmative defenses that are normally reserved for the government."

Let me try to simplify the legalese.

Note that generally the U.S. government enjoys sovereign immunity, shielding it from civil suits. But the Federal Tort Claims Act (FTCA) creates a waiver of the government's sovereign immunity, granting federal district courts jurisdiction to hear suits against the United States for torts committed by its employees while acting within the scope of their employment. Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, the Attorney General certifies whether the employee/defendant was acting within the scope of his or her employment at the time of the alleged act giving rise to the lawsuit. If the employee acted within the scope of employment, the United States substitutes itself for the employee as the defendant, and the lawsuit becomes a suit against the United States under the FTCA. This effectively shields the employee from liability.

But, as Staino notes, the Westfall Act's legislative history strongly suggests its purpose was to provide immunity to government employees for acts of negligence or poor judgment, not for criminal acts or egregious conduct. It is, therefore, highly unlikely that the Westfall Act ever intended grave human rights violations to be within the scope of employment.

While the FTCA provides a limited waiver of sovereign immunity, the waiver is subject to several important exceptions. Two of these exceptions are relevant here - the foreign country exception and the combatant activities exception. A third provision, known as the independent contractor exception, is not really an exception to the waiver of immunity, but in practice acts as such by restricting to which employees the FTCA applies.

The foreign country exception excludes "claims arising in a foreign country" from the waiver of sovereign immunity. The Supreme Court previously said that the foreign country exception applies whenever the injury giving rise to the suit occurs outside the United States, regardless of whether the acts were planned in, or directed from, the United States. So acts committed in Iraq or another foreign country by a U.S. government employee acting within the scope of his or her employment fall within the foreign country exception of the FTCA, even if the acts take place inside a U.S.-controlled military base. If a plaintiff sues a government employee for tortuous conduct, the United States may substitute itself for the employee under the Westfall Act. The United States can then claim sovereign immunity based on the foreign country exception to the FTCA and, thereby, both the employee and the government are effectively shield from liability for the conduct, leaving the victim with no civil cause of action.

The combatant activities exception bars suits against the federal government for "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." The rationale behind this exception is that, during a time of war, the government should not owe a duty of reasonable care to those it is fighting. The private contractors discussed in this comment were operating at the Abu Ghraib prison in Iraq, which arguably could be considered a "combat zone" and, thus, the acts committed there could be labeled "combat activities." This exception also operates to shield both the employee and the United States from suit.

The independent contractor exception differs from the previous two exceptions in that it does not reinstate sovereign immunity. Instead, it acts as a bar to substitution of the U.S. government for the contractor employee under the Westfall Act. Under the FTCA, "employees of the government," who are subject to substitution, include "officers or employees of any federal agency." The FTCA excludes any contractors working for the United States from its definition of "federal agency." A private contractor's employees working for the U.S. government are, therefore, not considered employees of the United States, and substitution under the Westfall Act is barred.

The Supreme Court has held, however, that a private contractor could potentially be considered a "federal agency" under the FTCA if the government controlled the contractor's day-to-day activity. This is a high standard and requires essentially absolute control. Courts should analyze the facts of each case to determine whether the day-to-day operations of the contractor were under such strict government control that the independent contractor was, in effect, a "federal agency." If that level of control exists, the court would allow the government to substitute itself for the contractor's employee under the Westfall Act, creating immunity for the employee and potentially also the contractor corporation, which makes it a very appealing defense.

Of course, just about any reading of the news over the past several years would suggest that government oversight and monitoring of PMCs was so lacking and deficient that suggesting the government controlled a PMC contractor's day to day activity would be an extremely hard case to make. To understand why this is important skip down two paragraphs to the boldface sentence

Stain spends some time analyzing the actions of Titan at Abu Ghraib

As the Titan cases illustrate, the use of private contractors in the U.S. military has led to increased concern over how to hold private contractors accountable for human rights abuses committed while working for the United States. A violation of international human rights, such as acts of torture, typically requires some government involvement.

Governments, including the United States, however, enjoy general sovereign immunity, shielding them from civil suits for tortious acts committed by its officials and employees. The United States has waived much of that sovereign immunity under the FTCA, although exceptions reinstate the sovereign immunity in some cases. Substantial government involvement in a private contractor's acts could potentially entitle the private contractor to the same immunity afforded the U.S. government or to the common law government contractor defense. Thus, the problem is that some government involvement is required to bring a cause of action for torture under the ATS, but too much government involvement could immunize the private party from liability altogether.

The solution to this problem, particularly in cases of torture, is recognizing that there is a significant gap between the required level and substance of government involvement. To allow a private contractor to assert sovereign immunity or the government contractor defenses, courts require almost absolute government control of the contractor, while the definition of torture only requires that the government official consented or acquiesced to the private contractor's acts. Accepting that one size does not fit all when considering the impact of private contractors acting with government involvement will enable plaintiffs to hold private contractors, who operated in this gap, liable under the ATS for torture.

Stain concludes thusly:

Acts of torture require state involvement, but a finding of too much state involvement may provide sovereign immunity. This problem, however, has a solution. First, courts should accept that private parties can commit torture. Second, courts should recognize the gap between the required level of government involvement for torture and the sovereign immunity related defenses and determine whether the private party that committed the torture was operating in that area.