[MUSIC PLAYING]
On shopify.de/recorder. [MUSIC PLAYING] I'm Marisa Wong, intern at Laugh Fair,
“with an episode from the Laugh Fair Archive”
for March 21st, 2020. On March 12, the fourth circuit court of appeals upheld the jury verdict in Al Shamari versus CACI International. Holding a government defense contractor liable for the torture of three Iraqi men at the Abu Great
detention facility in Iraq in 2004. The jury found that CACI conspired with US soldiers to, quote, "inflit torture or cruel inhuman or degrading treatment," unquote.
And the verdict awarded the men $42 million in damages.
For today's archive, I chose an episode from December 23rd, 2000-24, in which Michael Posner joined Natalie Orpitt to discuss the jury's verdict in Al Shamari and have a landmark decision of ex-private companies,
“government contractors, and the future of human rights”
litigation. [MUSIC PLAYING] It's the Laugh Fair podcast. I'm Natalie Orpitt, executive editor of Laugh Fair, with Mike Posner, director of the Center for Business
and Human Rights at New York University's Stern School of Business and a former Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor.
The second jury, though, made the decision
that the defendants that CACI had conspired with the military police, and as they put it to set conditions for interrogation, which resulted in widespread torture. Today, we're talking about a landmark verdict
“in the case of Al Shamari versus CICI, where”
a government contractor working with the US military and CIA was help liable for torture and human rights abuses at Abu Great Prison in Iraq back in the early 2000s. So Michael, I've asked you to join us today because there has recently been a really, really remarkable
ruling, which was a $42 million verdict
against a government contractor called CACI, which was just found liable for conspiracy to commit torture and cruel inhuman and degrading treatment in relation to its conduct at the quite infamous Abu Great Prison.
But it's been 20 years in the making or actually more the very famous photos that Abu Great found the public's radar came out in 2004. So I want to start by just reminding people where this comes from, particularly because a focus that we'll have
is just to help people understand really why it could possibly take 20 years to get from then to now, and for this verdict to finally come out. Can you just remind our listeners what was the Abu Great Prison in Iraq and what was the context for it?
Sure, it seems like ancient history, but it was only 20 years ago. After the 9/11 attacks, the Al-Qaeda attacks on the World Trade Center and the Pentagon, the Bush administration led by Vice President
Cheney, Secretary of Defense, Rumsfeld, announced what they called a global war against terrorism. And there were several premises. One was that the existing laws and procedures of the United States did no longer applied in some respects
because we were in a form of national security emergency. Coupled with that, we had a military incursion into Afghanistan right after the attacks and then in Iraq two years later. And part of the global war against terror was to say that people who were detained by the United States
outside of the United States need to be interrogated in a way that will get information to get it fast. And so they created a category that they called enhanced interrogation techniques,
Which included a number of things that here
before had been prohibited by U.S. law and by U.S. military rules,
“including waterboarding, extreme sensory deprivation”
and the like. And one of the places where this went on was the Abu Ghraib, prison, the main prison in Baghdad, where among others, military were doing interrogations, but often in conjunction with private security contractors
coming in to advise them on how to get information quickly and efficiently. And the theory was, you know, the ticking time bomb. We have limited amount of time. We've got to get information if somebody's not cooperating. We have to use these enhanced interrogation techniques
to basically coerce information out of them
so that we protect our soldiers and our interests. Right. And it's remarkable that Abu Ghraib actually that it's contained about 8,000 detainees. This was not a small operation. As I mentioned before, it really hit the public's radar
“in about 2004 when CBS published a number of infamous”
and really horrifying photos involving soldiers and pretty clear demonstrations of abuse against prisoners there. So one of the most famous ones was a soldier, apparently pulling a naked prisoner on a dog leash. There was one of a soldier with a cigarette in her mouth
gesturing at a line of naked, hooded men. We're being sexually humiliated, a human pyramid of naked men. And it was really quite dramatic photographs that we're shocking at the time.
So those reports had allegations. The photos came out and it really caused a public outrage and what happened around that time. Well, one of the things that happened that I was very involved and I worked at the time directing an organization
called Human Rights First.
And we recruited ultimately 50 retired senior military officers, generals and admirals, who appealed to Senator McCain, John McCain, a prominent Republican, prominent former military officer himself to challenge the Bush administration and this notion of enhanced interrogation techniques.
Turned out that the uniform military, the most senior people in the military, regarded this as a breach of their traditional notions of discipline of control and realized that this was going down a very bad path.
So we had a debate over years. Some of the cases were brought to court. This is one of them. But there was also a piece of legislation called the Detainee Treatment Act,
which did a number of things. But among them said to the US government, you can no longer use these enhanced interrogation techniques. And 20 years later, even under what was we had four years of Donald Trump,
we've had different administrations.
“The fact is that the military has held the line”
against these kinds of abusive interrogations. I would call them torture or cruel treatment. But we have, in fact, rejected that as a country, as a smart way to deal with interrogations. One of the things, if I can just take a minute
to give one anecdote, at the time, there was right after 9/11, coincidentally, a show went on the air on Fox, called 24. And it was a program where every week, a seek intelligence agents or a national security agent,
named Jack Bauer, would be interrogating people. The theme of the show was it was 24 hours of a day. And there were terrorists about to blow up Los Angeles or New York. And every episode would include Jack Bauer interrogating
people and abusing them. And so we recruited the dean of West Point and three interrogators to go to California and meet with the creators and writers of the show. By the time we did it, but on the air for six years,
they had never met an interrogator.
The whole show, the dramatic arc of the show, was this is the way you solve national security crises. So it became embedded in our culture. Jack Bauer became sort of the image of the tough American standing up to Al-Qaeda and terrorists.
One of the interrogators in our little room had actually been an oboe great. He's a young guy. He had been trained by the military to do interrogations.
He told the writers of this show,
when I got to Iraq, they told me, forget about everything you learned at Fort Wichuka. You're in Iraq now. Use your imagination, do whatever it takes to get the terrorists speak.
And he said, my buddies, and I went back to the barracks. And we watched 24, and we imitated what they were doing on television. Their mouths, their jaws just stood open. They said, oh my God, this is just entertainment.
He said to us, it wasn't entertainment. This was what we were being told to do by our superiors. So that was a very dark period. It took us a long time to fight the battle.
“But I think at the end of the day, we did prevail in the notion”
that this is not good national security policy. And what the interrogators said in that meeting was we befriended people, we become their best friend, rather than abuse them. And they give us information continuously.
If you torture somebody, they'll tell you what they think you want to hear.
But then they're never going to be on your side.
They're always going to be essentially estranged because if they've been abused. So this was bad policy. It was bad law. It was ethically outrageous.
And we paid a price for it. Absolutely. And as you just said, this was something that at the time was really authorized by law. This Abu Ghraib happened not long before
that so-called torture memos came out, showing that the White House had actually signed off on suspending or really deciding that the Geneva Convention's protecting the treatment of prisoners didn't apply to these people
and really letting these types of treatment run wild. So after this happens, there are a number of different efforts at finding accountability. So you talked about legislation being passed. There was in the military 17 of the soldiers
from Abu Ghraib were removed.
“And I think 11 or 12 of them were subjected”
to courts' marshal. There were a couple of reports in the military. I'm hoping you can talk us through some of the fallout in the military side, what did the U.S. military do knowing that this base was controlled by the U.S. Army.
And also actually was also being run in part by the CIA. It was the CIA doing anything in response after this was all coming out. Well, this all got complicated, of course,
by the fact that these things were occurring outside of the United States, which made it harder to invoke the authority of U.S. courts. And as you say, it was both the military and the CIA that were involved.
Some lower-level officers who were actually involved in the torture were prosecuted.
But there never was a willingness on the part
of either the defense department
“or the CIA to really establish accountability.”
Ultimately, the accountability went up to Dick Cheney, who was vice president, and his aide David Addington, who really were running the CIA piece of it, Donald Rumsfeld, Secretary of Defense. We actually are organization with the ACLU
sued Donald Rumsfeld in his personal capacity. Needless to say, we didn't succeed. So it was a very frustrating period of trying to figure out how do you create legal accountability for what had happened when the agencies themselves
were willing to have a few lower-level people thrown in jail, but not deal with the authors, the people who had authorized this change of policy. It was a radically changed policy. This had not been the policy before 9/11
and Abu Krayban and Afghanistan. So the other piece of this, which is the case that we're talking about, is that there were private agencies. We had outsourced responsibility. We had outsourced some measure of operationalizing
is to private individuals. There were a couple of people, social psychologists, who were advising the military on how to do this, kind of diabolical characters who brought their theory of how you get people to face up to what happened.
And they introduced some of these notions, waterboarding, some of these things. Obviously, this had been done in other countries and so they sort of learned from the worst examples. But they also brought in these private security firms,
including I call them Kaki. I don't know what they call themselves.
But a big private security firm, $7 billion now
and revenue, it's not a small firm.
They were brought in as advisors to the military,
at Abu Krayban, these other facilities
“to help figure out how to extract this information.”
So as you say, the liability for the US government is really limited to what the US government wants to do for itself because it's very difficult for individuals to bring claims against US actions abroad, particularly against the military judges,
like to invoke the political question doctrine when it comes to reviewing military decision-making, of course, it's happening overseas. So extra territoriality becomes a problem.
And as you say, and we are finally getting to this case,
the sort of path toward accountability that individual plaintiffs have tried, among all of these other efforts to find accountability for abuses, is to go after private contractors.
But as we will get into with this case, as our prime example, it's a very complicated path and the law around trying to hold contractors, despite their being private entities, accountable is very tricky. So tell us about this case, who are the plaintiffs
and when did they bring their claims and what is it that they were arguing? Well, this case was brought by either people who themselves had been abused or their families, and they brought the case under a statute called the Alien
toward statute, which is a relic of the early years of the Constitution, 1796, something like that. It was passed by Congress, the history is not very clear. People think that it was initially intended to protect American diplomats or to go after pirates.
But what it says basically is under the law of the United States,
you can bring a suit basically a toward action against people who are for acts that occurred outside of the United States that violate the law of nations. And again, those terms are quite vague. That terms are quite vague.
It was, it's set basically dormant for a couple hundred years. And then in 1980, the suit was brought against a Paraguayan police official for torturing a young man in Paraguay. The torture wound up in Brooklyn and the Center
for Constitutional Rights found him. And they said, this is a modern day version of a violation of the law of nations torturing somebody.
And the court second circuit, and ultimately,
the courts have held that. And there were several other cases in the '80s and early '90s brought against officials from other governments who had been involved in these sorts of gross human rights violations.
And here you have, in 2004, again, the victims of this horrendous abuse in Abu Ghraib and in Iraq coming to a US federal court and saying this agency operating outside the United States, it is a corporate entity ought to be held accountable
for its role in facilitating this abuse of Iraqi citizens. So the plaintiffs are Iraqi, the action occurred in Iraq, but the ideas to use a federal court in the United States to hold them accountable and get compensation to the victims.
So as I understand that they brought that case in 2008
“and faced what I think in total was more than a dozen”
various motions to dismiss. Before we get to those, what exactly were the claims under the alien tort statute? Because over the course of this litigation, actually, we had a narrowing of the--
it's often abbreviated as ETS. So we had a narrowing of the ETS during the course of this litigation. But the claims, as I understand it, were a couple under the statute.
Can you just describe what those claims looked like at first? - Well, at first they basically said that there were a range of human rights violations, violations of US and international law, including torture, cruel and human degrading treatment.
“I think they added war crimes, assault and battery,”
sexual assault, et cetera. Also, infliction of emotional distress and all of that in conjunction with the role
That this private firm played,
in conjunction with the American military or the CIA in carrying out these abuses. And so the notion was whatever happened at Abu Ghraib, this private company bears responsibility as an agent or as a helping to provide the guidance.
They didn't necessarily have to put their hands on somebody.
They were basically giving supervision and guidance
to American officials who were carrying out these acts. - Right, so as I mentioned,
“there was an important decision out of the Supreme Court”
over the course of this litigation. There had already been some litigation about jurisdiction under the ATS that was sort of meandering between the district court and the fourth circuit.
But in the meantime, the Supreme Court came out with the 2013 Kia Bell decision. Can you talk about what that did and it's impact on this case? - Sure, and maybe a little bit of background on that as well.
Initially, as I say, the lawsuits that were brought under this alien toward statute were directed at security officials, the police leader in Paraguay or two Argentine generals or President Marcos
for torturing people. It was aimed at government officials. And somewhere in the, I guess, late '80s, early '90s, some lawyers started to say, well, why are we limiting ourselves
to government officials? What about companies that are implicated in human rights violations and a series of lawsuits who were brought initially in New York and Brooklyn against companies
“that did business in South Africa during apartheid?”
And those cases were summarily denied, but they raised the specter to a lot of corporations and their lawyers that, oh my God,
this is gonna be a new tool to basically provide
a kind of legal basis for challenging what we're doing globally. And one of the companies that was particularly concerned about this was Mobile Oil and Exxon and Shell rather, which was had a big operation in Nigeria and was operating in an area of a conflict area
in the Niger Delta where the government was fighting an insurgency, but operating often on land facilities around the oil mining sites. And so a series of lawsuits were brought against these oil companies, Shell, and particular.
“And they rose through the courts and Keabel was a case”
that made it to the Supreme Court and the Supreme Court in quite strong language says, this is going farther than the law should go and that in particular a foreign defendant, a foreign company, Shell is a British Dutch company,
should not be held liable using the jurisdiction of the oil and towards statute. So we've seen in that case in several others, a kind of retreat on the notion that this is what the courts ought to be doing.
And it's part of, I would say, a general trend, the courts have gotten more cautious, more conservative, but the notion of expanding this doctrine to the private sector and especially the foreign companies is clearly disfavored by the current Supreme Court.
- I'm Theresa and my experience in all entrepreneurs started a choppy fry-a-folke-a-che-durch.
I often find myself in the first day, and the platform makes me no problem.
I have many problems, but the platform is not a step away. I have the feeling that Shopify is a platform that can be optimized. Everything is super integrated and balanced. And the time and the money that I can't invest in there can be different. For all of them, in WaxTomb.
WaxTomb was to focus on the extraterritorial application of the ATS. So that was another basis that the court had really focused on that this conduct had happened. A broad, it was, as you said, non-US persons who were plaintiffs, non-US entities that were defendants, and therefore it couldn't reach it. In the litigation that we have been focusing on, which I accidentally have not named yet,
Which this is the alchamari case that we're discussing today.
In the alchamari case, Kaki did actually go forward after the key of all decision, and say, "Okay, we'll apply this understanding now that we have about ATS. This case has to be dismissed." So the district court originally agreed, but on appeal the fourth circuit reversed. So tell us about what the argument was there and what the fourth circuit decided.
“Well, I think the essential decision of the fourth circuit was that as a private contractor,”
Kaki, could be held responsible for the actions of its employees in carrying out these detention interrogation operations. The company said, "Management said, we weren't aware of this." The court said, "There's a notion of command responsibility.
You're running a company, your employees are basically on a systematic way, urging the US government,
the military, the CIA to be systematically abusing these prisoners. This wasn't a one-of operation. This was going on all the time, every day, day and night, you need to be held accountable as an actor in this, in fact, driving this and on that basis, the case has to go forward."
“Right, and I think a dispositive factor for the fourth circuit was that as a jurisdictional”
matter, Kaki is a US corporation, and the employees involved or allegedly involved at this point were US citizens. So under the test that Kiebel had applied, which was what's called the touch and concern test, the idea was that these suits have to have enough to do with the United States that it makes sense that the statute should apply.
And the fourth circuit said, "Yes, this one does, because this is a US corporation and US persons, and that's enough." So the case had to move forward under the alien-torts statute, and from there, there were multiple other efforts that Kaki brought to dismiss the case on additional grounds. Can you talk about some of those?
Yeah, you know, the defendants in these cases always will say, you know, it's a forum
non-convenience, it's not the best place to try it. Federal judges don't have the best access to the evidence, it's putting too much of a burden on the courts to uncover or unearth what the facts really are and a foreign prison and a wartime situation. It's a political case, it invoked the political doctrine, exception saying, you know, the
court shouldn't be dealing with political matters. So there were a range of technical questions as to whether or not this is the best and the right place to try these this case.
“And again, the plaintiffs over came all of that, and I think one of the things that's interesting”
to me, this is an important case on its own right for all the reasons we're talking about. But it suggests to me that maybe there is now, we've sort of gone from an open notion that any case involving any for any corporation, foreigner domestic involving these human rights violations outside the United States is fair game. Key about brings it way down and says, no, but again, for a foreign defendant, shell.
And now we're seeing, okay, maybe there is a room for a case being brought where the defendant is a U.S. company and we're talking about U.S. citizens being involved in the violation. And so to me, again, I'm not totally convinced this is where we're going. But it does, it's an important case, again, on its own merits because it is, in a sense,
the first accountability for a private contract or in this period of the war on terror and
what happened at Abu Ghraib, but it also suggests an opening for other cases to be brought under this alien towards statute relating to foreign conduct by U.S. companies and U.S. based employees. Yeah, and I am eager to hear your thoughts about what this means in the future and in sort of the arc of trying to find corporate liability for human rights violations.
But before we get there, I do want to talk about one other aspect of the litigation that happened before trial, which was that in 2018, the judge actually dismissed the claims
Under the Alien Tort Statute that were on direct liability, kept the conspira...
atying and abiding claims, but did drop direct accountability.
“So tell us about that, what happened, what was the basis of that?”
You know, I'm not, I wasn't a party to the litigation and I didn't follow every aspect of that.
I imagine that the judge made a judgment, basically, that it's one thing to say that they were
in the room, that they were aiding and abiding what the military did or the CIA. It's another thing to say that they were directly implicated. And Kaki's notion, again, is, you know, worse civilians, we may be standing there or standing outside of the room where people are being tortured, but our hands are clean, we didn't actually do anything. And so the judge, I think, probably took the prudent route and said, okay,
I'm going to drop those charges. I'm not going to, I'm not comfortable making a judgment about direct involvement in the torture, but I'm going to maintain that there is a basis to go forward with a lawsuit in terms of this advisory role in terms of this aiding and abiding of what was clearly in the illegal set of actions. Right. And I do wonder how much of that was on an evidentiary basis. I will confess that I didn't read this particular opinion, but I want to talk
about the evidence because it is always a major, if not the major hurdle, in litigation like this
“at particularly because of the state's secret doctrine. There was this relationship as you were”
describing between the military, which, of course, is outside of the reach of the ATS and this particular lawsuit, it wasn't even brought against the US military. But the fourth circuit had expressly found in response to Kaki's argument that, you know, we were acting at the direction of the US military and therefore can't be held liable. The fourth circuit had said, no, that's not a plausible defense. The US military cannot direct contractors to perform unlawful actions.
But of course, the involvement and the sort of intermingling of the US government means that even throughout this private party's litigation, the US government is going to have interests. So,
as I mentioned, the state's secret doctrine, which comes up in basically any lawsuit involving
the war on terror, as well as many others, did come up here. Can you tell us about
“when that came up, how it came up and what sort of impact it had on the litigation?”
Yeah, again, I confess I was not part of the litigation and I don't know all of the details here. But in general, the position certainly of the CIA in particular but the military as well has been to invoke this state's secrets doctrine as a way to shield it from public exposure to the bad behavior that happened during these years. If you remember, there was an extensive report done on exactly the subject, the use of torture, extreme
interrogation by a Senate Intelligence Committee, chaired by Diane Feinstein, hundreds of pages, thousands of interviews, et cetera. It wasn't just the Bush administration. It was under the Obama administration where I served that the CIA in particular went to extreme lengths to prevent even the disclosure of an executive summary of that report, which made a very clear case that this was again not a group of bad apples. This was a set of policies from the top
systematically applied and it involved both the federal government in the form of the CIA and the military as well as these private contractors working hand in glove. And so the idea of state secrets is to say this is a national security issue, getting into the messy details here will undermine state security and they apply it across the board. There's a desire not to get into the details of what happened or why on the theory that will in some way disrupt national security
in the national interests. And so that was another strain of this case, the government trying to basically prevent their being and open public hearing on these issues in a federal court,
Just as the Obama administration and before that the Bush administration trie...
Congress and the intelligence committees from publicly disclosing what they had found.
Right. And what was interesting to me in this case was that the state secrets doctrine in in other cases is typically invoked against the plaintiffs, we're seeking some sort of discovery in order to make their case. Here it was invoked also against the defendants because khaki wanted to disclose some information in its defense that the U.S. government said would have been a threat to national security as I understand it and included among other things identifying some of the
individual witnesses. And the court found a workaround there which was to allow both sides to depose individuals who were witnesses to the events at Abu Graib, but to do so anonymously, which is the type of substitute workaround that courts are supposed to use in order to allow these issues to be litigated without unduely threatening national security. But khaki was very upset about this and actually brought on an interlocquatory basis
the question of whether its defense was being unfairly prejudiced by the government's invocation of state secrets and then petitioned for assert, which was denied in 2021. Do you have a theory of why the Supreme Court was not interested in taking up this question of
“whether invocation of state secrets doctrine was unduely prejudicial in the case of litigation against khaki?”
You know, I think it's been true from the get-go beginning even in the period right
after these initial cases were brought in the early 2000s that the Supreme Court was always
looking for ways to kind of keep its hands clean of this. This was messy business. The U.S. was involved in things that everybody irrational person knew crossed a line. And so technically they looked for ways to dismiss cases. I'll give you one example. There was a case of a guy in American citizen who was arrested at O'Hare Airport and imprisoned in South Carolina and his name is Padilla, O'Zay Padilla. And that case made it up to the Supreme Court and in really very awkward language,
they found a way to say we don't have the ability to look at this case. This was a clear this related to the unlawful detention or the cases often involving people sent to Guantanamo. This guy had nothing to do with Guantanamo. He was arrested in the United States, detained in the United States. He was American citizen and he was charged with carrying a dirty bomb which the
government never proved. The Supreme Court has looked for ways to kind of keep its hands clean.
“And so I think in denying, served in this case, that follows sort of the pattern. We don't actually”
want to delve into these cases if we can avoid it. And I will say again with regard to the fourth circuit and a district court in this particular case, it's much to their credit that they have pushed their way through all of these legal obstacles. These are not easy cases. You've got all the issues I described of trying to get at the facts. It's occurred a far away in a confined setting. God knows how you go about gathering the, you know, dispositive evidence. And then all of the
political question issues and national security. So these are cases that typically courts run away from. And it's taken however many years to get this case to be resolved this year. But it's much to the credit of the federal courts, both at the district and a pellet level,
“that they haven't run away from this. There are lots of ways they could have. And I think at the end”
of the day, the egregious conduct was so extreme, so clear, and this notion of outsourcing responsibility to a private security firm to come in and advise US officials on how to get information by abusing people. I think offended the conscience of these judges and they said, we're going to find a way, as you describe, allowing testimony to be taken, but not made public, find a way to get at the truth and resolve it. It took a long time. I'm sure very frustrating
To the plaintiffs that they had await so many years.
that this case found the light of day and resulted in this kind of a judgment in 2024.
“Absolutely. So we're now finally getting to the trial and our long chronology of the case.”
There were two additional motions to dismiss after the Supreme Court denied search, both failed, and that was as of 2023. So there was about a year of pretrial motions, and finally the case went to trial. Tell us anything that you found particularly notable about, I suppose, either the first trial that ended in a mistrial or this second trial that resulted in the quite extraordinary
$42 million verdict. Again, I need to say, as a disclaimer, I was not in the court. I wasn't a
party to the litigation, as you say, the first jury deadlock. The second jury, though, made the decision that the defendant that Kaki had conspired with the military police, and as they put it to set conditions for interrogation, which resulted in widespread torture. And so, you know, 12 individual American citizens made a judgment that Kaki's behavior was a violation of U.S. law and a violation of the alien tort claims act, and that's where we are. Right. So let's talk now. Big picture. This is,
“you know, I think we've touched on a couple of different themes, and I'd like to hear your thoughts”
on each of them sort of wear this case falls and how to understand it. So the first one,
which obviously we've touched on, is just the continuing legacy of the war on terror and the abuses that it entails. It's been a very long road. There have been a lot of other efforts at accountability along the way. How do you read this case and this verdict in that context and for going forward? Yeah, I think there is a silver lining here that this case and then also again, a long, very prolonged and difficult case involving another private security firm that was involved
in a shooting in Neither Square. There are two cases now where both private firms, private security firms have been held accountable in some way for their participation in these military operations that involved rogue behavior by the United States. That was, of course, the black water case. Not perfect. Lots of things still, you know, swept under the rug, not enough accountability for the senior officials who created this whole system. But I am an optimist. I'm a chronic optimist.
And I would say the lesson is pretty clear here, both to the U.S. officials in the future, but also to private security firms that there are some rules that apply. I was part of, I was on the board for several years of an organization that was created by the Swiss government called Icoka. It's the International Code of Conduct Association for Private Security Contractors. It was the result of these actions. And it was created as a way to have governments, the industry itself,
private contractors, and civil society groups. We all had four people on the board to develop some rules. And we develop rules for use of a weapon, interrogation, detention, use of child soldiers, etc. So we are beginning to see as a result of all this, both through the U.S. courts and through efforts like this international multi-stakeholder organization, the notion that this is not just the wild west where private security firms, as long as they're not operating in the United States can
“do pretty much whatever they want. I think that's a big, important check against untrammeled”
abusive behavior. Long way to go. It is a very, it's an industry with tens of thousands of companies all over the world that is dominated by former soldiers, former intelligence officers. There's a
lot of bad behavior. But again, the combination of a lawsuit against Kaki, $40 million judgment.
Icoka now with the U.
hire a firm that doesn't go through this certification process. I think we're beginning to see some accountability which is for real and suggested in the future. There's going to be at least the potential that people in these companies are going to say, you know what, this is not a free ride. We better be a little more attentive. We better worry about how our people are being trained in
“the supervised. So that's one side. The second side is that as I said earlier, I think there”
really was a judgment made certainly by the Obama administration and it held under the first Trump
administration. This kind of conduct cannot go. Second day in office President Obama issued three executive orders. One very specifically on this point saying, no, we're not going to do this anymore. A lot of people worried. I was worried that when Donald Trump became president, he was going to sort of throw up in the floodgates and say, let's go back to Obama grave. He didn't do that. But he had people around him like General Madness, who was very much in the camp I described
of military officials, retired military officials, who believe that abusive interrogation is bad
for military discipline and bad for national security. So we're going to see, we're about to have
four more years. We're going to see again, depending on what happens in the world and depending on who's running these security national security agencies, if there's a walk back from what now has been a clear line that we do not abuse people in U.S. detention, even in places all over the world, we're soldiers and intelligence agents who are operating. Yeah, and so another thread that we've discussed that I'd like to just get your sort of closing thoughts on and looking forward thoughts on
is of course the general development of the law under the alien tort statute as it's applied
to private corporations. So ironically or not ironically, the last time I had you on, we were
talking about corporate liability for a very different case, but also involving human rights abuses, also involving a corporation, which was the Chiquita Banana case that also returned to very high verdict. That is of course not any national security framing directly didn't involve security contractors, but was a private corporation as well. And you've talked about, you talked there and you just talked now about some of the efforts that are being made to create more clear
rules and guidance for corporations, which of course don't have things like the rules of engagement and the training that members of the military go through to understand what the rules are, but in terms of the corporations themselves and their understanding of the alien tort statute and you know, in the general council's office understanding that, oh, this statute from the 1700s is something that is actually a thing that I need to understand because there might be a millions
“of dollars verdict under it. What is the world looking like from their perspective?”
Well, I should put on my head here as a professor at a business school. I run a center on business and human rights, which is all about trying to figure out how to create a pathway for companies to take greater responsibility for their actions globally and including their supply chains. I've just written a book which is actually coming out next week, a plug for the book. It's called Conscience Incorporated. It's all about this and I would say two things. One, it's not just the
United States, whereas we've discussed, there's a bit of ambivalence on the port of the courts as to whether or not they want to allow these suits involving private companies to be brought under the alien tort statute. Open question where that's going to go. We have the two cases
“we've been talking about that should key to case from earlier this year and now the khaki case where”
courts have said they're still room to do this, but we also have a number of other countries that are getting into the expane and great Britain and Canada, Australia, similar movement by plaintiffs who are again representing or lawyers representing plaintiffs who've been aggrieved for human rights violations in other parts of the world, suing companies. They could be
American companies or European companies, so I think there is a trend, a broa...
U.S. is not in the lead, but there's certainly a greater sense that there needs to be some kind of jurisdictional bases, so the companies don't operate rough shot without any accountability.
Second point related to that, there is a very strong movement now in Western Europe and the European
Union to create a regulatory structure for companies to operate. The Germans have a supply chain law. The French have a due diligence law from 2017 and just this year the European Union has gone to
“its 27 member states and said you have to within two years develop national laws on what they”
call mandatory due diligence. And so you're going to see I think some combination of government
regulators coupled with court cases, basically telling global companies the rules of the game have
changed. What was possible 20 years ago, if you think comfortably you can say we follow local law and this is not our business, you can't do that anymore. And so if I'm a general council of Fortune 500 company, I'm both thinking about the Alien Toward Statue in the United States. I'm thinking about what's the law in Spain or Germany or Britain and I'm thinking about oh my god, the Europeans are now regulating and in two years there's going to be a due diligence law in
27 European countries. I'm work I have operations in many of those countries, they're going to hold
“me accountable. So I think the overall trend, I said I was an optimist, the overall trend is”
there's going to be greater attention to these issues, greater public attention through the media, whatever social media, but also two important legal constraints on companies operating without oversight or accountability, the courts and this regulatory system that's really evolving in Europe, and I think will evolve elsewhere. Okay, I think that's a great place to leave it, Michael Posner, thank you so much for joining us. Thank you for having me. Good to talk with you.
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