Accountability for private military contractors under the Alien Tort statute

California Law Review

Volumn 97, Issue 5, 2009, Pages 1459-1499

  Lam, Jenny S ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 74049089342     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (380)

1. The terminology used to describe these private entities varies from one author to the next. This paper adopts "private military contractors" as a generic term to describe private companies providing services, under government contract, that traditionally have been performed by national militaries, as well as the individuals employed by these companies to perform such services.
2. See, e.g., FOREIGN AND COMMONWEALTH OFFICE, PRIVATE MILITARY COMPANIES: OPTIONS FOR REGULATION, 2001-02, H.C. 577, at 4, 19 (report of the British government, noting PMC logistical support for the United Nations Mission in Sierra Leone and predicting that an increase in demand for private military services will likely come from developing countries, developed countries and international organizations);
3. U.N. Gen. Assembly, Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding Exercise of the Right of Peoples to Self-determination, Report on the Question of the Use of Mercenaries as a Means of Violating Human Rights and Impeding the Exercise of the Right of Peoples to Self-determination, ¶ 37, U.N. Doc. A/63/325 (Aug. 25, 2008) [hereinafter U.N. Working Group, Report on Mercenaries] (discussing "emerging phenomenon in Latin America regarding the use of private security companies increasingly involved in the protection of geo-strategic sites" and reporting that a private military company contracted with a Mexican mayor to train local police in torture techniques);
4. Press Release, Working Group on the Use of Mercenaries as a Means of Violating Human Rights and Impeding Exercise of the Right of Peoples to Self-determination, UN Working Group Concludes Fourth Session, Expresses Concern About the Involvement of Mercenaries and Private Military/Security Companies in Conflict Situations (Sept. 9, 2008), available at http://www.unhchr.ch/ huricane/huricane.nsfy0/7ECE79A6DBCB07FEC12574BF0054C086?opendocument (expressing the Working Group's deep concern over PMCs' involvement in the conflict situation in Georgia);
5. Call the Blue Helmets, ECONOMIST, Jan. 6, 2007, at 24 ("Since the world is likely to need large numbers of peacekeepers for the foreseeable future, a further option is being explored: 'leasing' the fire engine by hiring private security companies to do more of the work.").
6. U.N. Working Group, Report on Mercenaries, supra note 2, ¶ 26 (estimating that the industry earns between $100 and $120 billion annually);
7. Haider Rizvi, Peacekeepers-for-Hire? Not So Fast, Critics Warn, INTER PRESS SERVICE, Mar. 30, 2009, available at http://www.ipsnews.net/news.asp?idnews=46319 (reporting on debate over use of PMCs in United Nations' peacekeeping missions).
8. SourceWatch, Private Military Corporations, http://www.sourcewatch.org/ index.php?title=Private-Military-Corporations (last visited Mar. 21, 2009).
9. See also CONG. BUDGET OFFICE, CONTRACTORS' SUPPORT OF U.S. OPERATIONS IN IRAQ 13 (2008) (estimating $6 billion to $10 billion in total spending by U.S. agencies and U.S.-funded contractors for private security services from 2003 to 2007, of which $3 billion to $4 billion was for private security services in Iraq). Although the Obama administration has outlined plans for the phased withdrawal of U.S. troops from Iraq, it is unclear what the impact will be on PMCs operating in Iraq.
10. See Peter Baker, With Pledges to Troops and Iraqis, Obama Details Pullout, N.Y. TIMES, Feb. 28, 2009, at A6. In Afghanistan, however, where the Obama administration has committed to an increase of U.S. troops, the PMC presence already seems to be building.
11. See Private Security Firms Jumping into Afghanistan, CBS NEWS, Mar. 22, 2009, hrrp://cbs3.com/national/private.security.firms.2. 965321.html.
12. See, e.g., JENNIFER K. ELSEA ET AL., CONG. RESEARCH SERV., REP. NO. RL32419, PRIVATE SECURITY CONTRACTORS IN IRAQ: BACKGROUND, LEGAL STATUS, AND OTHER ISSUES 35-50 (2008), available at http://www.fas.org/sgp/crs/ natsec/RL32419.pdf (discussing issues of PMCs' effect on the U.S. military force structure, the reliability and quality of PMCs in Iraq, oversight and control issues, cost, and the perception of state authority and commitment);
13. CONG. BUDGET OFFICE, supra note 4, at 17 box 2 (comparing the cost of a private security contract and a U.S. military alternative).
14. See CONG. BUDGET OFFICE, supra note 4, at 13 tbl.2 (comparing ratios of contractor to military personnel in past and present U.S. military operations). The Economist describes the war in Iraq as "the first privatised war." Military-Industrial Complexities, ECONOMIST, Mar. 29, 2003, at 56.
15. Because most of the available information about PMCs relates to PMCs operating in Iraq, this Comment draws heavily on examples from Iraq. Nevertheless, the arguments in this Comment should be read to apply to PMCs operating in other contexts as well.
16. ELSEA ET AL., supra note 5, at 3. Although this description refers specifically to Iraq, PMCs operate in many places other than Iraq and may serve other functions as well. In both El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) and Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008), rev'd, 563 F.3d 992 (9th Cir. 2009), for example, plaintiffs sued PMC corporations that allegedly assisted with the United States' covert rendition program. Plaintiffs in the former case alleged that PMCs provided aircraft and crew for the rendition, El-Masri, 479 F.3d at 300, while the latter case alleged that PMCs provided travel and logistical services for the rendition program, Jeppesen, 539 F. Supp. 2d at 1132.
17. CONG. BUDGET OFFICE, supra note 4, at 15.
18. Id. at 19 (reporting that, as of February 28, 2008, 638 Department of Defense contractor employees carried weapons for self-defense in Iraq and Afghanistan).
19. See, e.g., GEORGE R. FAY, AR 15-6 INVESTIGATION OF THE ABU GHRAIB DETENTION FACILITY AND 205TH MILITARY INTELLIGENCE BRIGADE 47-48 (2004), available at http://www.defenselink.mil/ news/Aug2O04/d20040825fay.pdf (report of U.S. Army's investigation into the abuses at Abu Ghraib, revealing that "[s]everal of the alleged perpetrators of the abuse of detainees were employees of government contractors" providing interrogators and linguists for the prison). In one incident, a PMC raped a detainee while a soldier stood by and took pictures.
20. Id. at 81-82.
21. In another incident, during an interrogation by a PMC, a staff sergeant went in and out of the interrogation, at times suffocating and inflicting pain on the detainee.
22. Id. at 49. In another interrogation, a PMC and soldiers used dogs to intimidate the detainee.
23. Id. at 87.
24. David Washburn & Bruce V. Bigelow, In Harm's Way: Titan In Iraq, Contract Workers Say "Wild West" Conditions Put Lives in Danger, SAN DIEGO UNION-TRIB., July 24, 2005, at A1, available at http://www.corpwatch.org/article.php?id=12510. As farfetched as this experience may sound, a company commander with the 82nd Airborne Division corroborated this PMC's story.
25. Id. A similar experience was reported by Goran Habbeb, an employee with the private military company Titan. Though officially employed as a translator, "he was sometimes sent alone into villages to look for insurgents and to covertly record GPS locations to provide to the troops - a task normally reserved for counter-intelligence officers."
26. Pratap Chatterjee, A Translator's Tale, CORPW ATCH, Aug. 9, 2006, http://www.corpwatch.org/article.php?id=13992. However, "[s]ometimes he would get caught in a firefight and have to fire back, another task not covered by his job description."
27. Id.
28. See, e.g., MAJORITY STAFF OF H. COMM. ON OVERSIGHT AND GOV'T REFORM, IIOTH CONG., MEMORANDUM REGARDING ADDITIONAL INFORMATION ABOUT BLACKWATER USA 1-2 (2007), available at http://oversight.house.gov/documents/20071001121609. pdf.
29. Id.
30. Josh Meyer, US. Details Case Against Blackwater Guards, L.A. TIMES, Dec. 9, 2008, at 1.
31. Id.
32. See, e.g., HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS AT WAR: ENDING THE CULTURE OF IMPUNITY (2008), available at http://www.humanrightsfiret.hfo/pdf/08115-usls-psc-final.pdf [hereinafter HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS];
33. U.N. Working Group, Report on Mercenaries, supra note 2, ¶¶ 28-30 (discussing PMCs in Iraq and elsewhere);
34. MAJORITY STAFF OF H. COMM. ON OVERSIGHT AND GOVERNMENT REFORM, IIOTH CONG., supra note 13, at 2, 9-13.
35. See Coalition Provisional Authority Order No. 17 (Revised): Status of the Coalitional Provisional Authority, MNF - Iraq, Certain Missions and Personnel in Iraq § 4, ¶ 3, available at http://www.cpa-iraq. org/regulations/20040627-CPAORD-17-Status-of-Coalition-Rev-with-Annex-A.pdf (The order, revised June 27, 2004, provided that "[c]ontractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.").
36. After the Coalition Provisional Authority dissolved, "[l]aws put in place by the CPA ⋯ remain[ed] in force during the transitional period, unless rescinded or amended." KENNETH KATZMAN & JENNIFER ELSEA, IRAQ: TRANSITION TO SOVEREIGNTY 6 (Cong. Research Serv. Order Code RS21820, 2004), available at http://fpc.state.gov/documents/organization/39337.pdf.
37. Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities During Their Temporary Presence in Iraq, U.S.-Iraq, Art. 12, ¶ 2, Nov. 17, 2008, available at http://www.mnf-iraq.com/images/CGs- Messages/security-agreement.pdf.
38. Id.;
39. Iraqi Parliament Approves Landmark US Military Pact, AFP, Nov. 27, 2008, available at http://www.google.com/hostednews/afp/article/ ALeqM5hJG-Yv30UGJWBqLZDoX4H8-ncpBg;
40. 7 Dead, 10 Wounded in Iraq Blasts at Sunni Leaders' Meeting, SEATTLE TIMES, July 31, 2009, available at http://seattletimes.nwsource.com/html/nationworld/2009572711-iraqbombs31.html.
41. Federal prosecutors' investigation into the September 16, 2007, shootings by Blackwater appears to be an exception to the government's indifference to PMC abuses. The investigation was seemingly motivated by the unprecedented American and Iraqi outrage and media coverage following the incident. See, e.g., Steve Fainaru, Warnings Unheeded on Guards in Iraq, WASH. POST, Dec. 24, 2007, at A1;
42. James Glanz & Alissa J. Rubin, Blackwater Shootings 'Deliberate Murder,' Iraq Says, N.Y. TIMES, Oct. 8, 2007, at A6;
43. David Johnston, State Dept. Made Immunity Offer to Firm's Guards, N.Y. TIMES, Oct. 30, 2007, at A1;
44. David Johnston & John M. Broder, U.S. Prosecutors Subpoena Blackwater Employees, N.Y. TIMES, NOV. 20, 2007, at A10;
45. Editorial, Legal Loopholes in Iraq, N.Y. TIMES, NOV. 5, 2007, at A24.
46. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, REPORT No. GAO-08-966, REBUILDING IRAQ: DOD AND STATE DEPARTMENT HAVE IMPROVED OVERSIGHT AND COORDINATION OF PRIVATE SECURITY CONTRACTORS IN IRAQ, BUT FURTHER ACTIONS ARE NEEDED TO SUSTAIN IMPROVEMENTS (2008);
47. Memorandum of Agreement (MOA) between the Department of Defense and the Department of State on USG Private Security Contractors (December 5, 2007), http://www.defenselink.mil/pubs/pdfs/Signed%20MOA%20Dec%205%202007.pdf;
48. see also Letter from Peter Maurer, Permanent Representative of Switz. to the U.N., to the Sec'y Gen., U.N., annex, U.N. Doc. A/63/467-S/2008/636 (Oct. 6, 2008) [hereinafter Montreux Document] (The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict.).
49. See, e.g., Montreux Document, supra note 22, pt. II.A.4 (recommending terms of contract with PMCs);
50. HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS, supra note 17, at 34 (recommending provisions for U.S. government agency contracts with PMCs);
51. Roger P. Alford, Arbitrating Human Rights, 83 NOTRE DAME L. REV. 505 (2008) (suggesting that corporations that aid and abet human rights abuses look to their contracts with governments and rely on arbitration provisions to force governments into sharing responsibility for their human rights abuses);
52. Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 WM. & MARY L. REV. 135 (2005) (focusing on three modes of accountability that could apply to private contractors: (1) democratic accountability, i.e., norms of transparency and democracy, (2) provisions in government contracts, and (3) internal institutional accountability, i.e., corporations' own cultures and mechanisms of accountability).
53. For example, a Green Paper issued by the British Foreign and Commonwealth Office contends that the International Criminal Court ("ICC"), once operational, will also hold PMC employees accountable if they become involved in armed conflict and violate international humanitarian law. See FOREIGN AND COMMONWEALTH OFFICE, PRIVATE MILITARY COMPANIES: OPTIONS FOR REGULATION, 2001-02, H.C 577, at 14. However, as of June 1, 2008, only 108 countries had agreed to be bound by the ICC; notably, the United States has refused to become party to the Rome Statute of the International Criminal Court.
54. See ICC, The State Parties to the Rome Statute, http://www.icc-cpi.int/menus/asp/states+parties/ (last visited June 6, 2009). Moreover, the ICC has limited jurisdiction, covering only genocide, crimes against humanity, war crimes, and the crime of aggression. Rome Statute of the International Criminal Court, pt. 2, art. 5, July 17, 1998, 37 I.L.M. 999 (1998).
55. U.S. jurisdiction over PMCs is limited to provisions of the Military Extraterritorial Jurisdiction Act of 2000 and the Uniform Code of Military Justice, which establish the United States' special maritime and territorial jurisdiction or extraterritorial jurisdiction. See ELSEA ET AL., supra note 5, at 20-31.
56. Security Contractor Accountability Act of 2007, S. 2147, 110th Cong. (2007);
57. MEJA Expansion Act of 2007, H.R. 2740, 110th Cong. (2007);
58. Transparency and Accountability in Security Contracting Act of 2007, H.R. 369, 110th Cong. (2007). The advocacy group Human Rights First also recommends legislation to expand criminal jurisdiction over U.S. government contractors, in addition to increased prosecution of contractors who commit crimes abroad. HUMAN RIGHTS FIRST, HOW TO END IMPUNITY FOR PRIVATE SECURITY AND OTHER CONTRACTORS: BLUEPRINT FOR THE NEXT ADMINISTRATION (2008), available at http://www.humanrightsfirst. org/pdf/PSC-081118-end-cont-impun-blueprint.pdf; HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS, supra note 17, at 33-34.
59. 28 U.S.C. §1350(2006).
60. 391 F. Supp. 2d 10 (D.D.C. 2005).
61. 436 F. Supp. 2d 55 (D.D.C. 2006).
62. Although Titan Corp. and CACI International, Inc. were named as defendants in both cases, individual PMC employees were also named in Saleh. Compare Ibrahim, 391 F. Supp. 2d at 12 (listing Titan Corp. and CACI, International, Inc. as defendants), with Saleh, 436 F. Supp. 2d at 56-7 (listing Titan Corp, CACI International, Inc., and PMC employees as defendants).
63. See Saleh, 436 F. Supp. 2d at 57;
64. Ibrahim, 391 F. Supp. 2d at 13-15.
65. See Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008) (dismissed on the basis of state secrets privilege), rev'd, 563 F.3d 992 (9th Cir. 2009);
66. Complaint, Al Shimari v. Dugan, No. 2:08-cv-00637 (S.D. Ohio Jun. 30, 2008) (transferred to the Eastern District of Virginia on Aug. 6, 2008) (regarding torture at Abu Ghraib);
67. Complaint, Al-Taee v. L-3 Services, Inc., No. 2:08-CV-12790 (E.D. Mich. June 30, 2008) (dismissed Aug. 11, 2008) (regarding torture at Abu Ghraib and other locations);
68. Complaint, Al-Ogaidi v. Johnson, No. 2:08-CV-01006 (W.D. Wash. Jun. 30, 2008) (transferred to the Eastern District of Virginia on Aug. 13, 2008) (regarding torture at Abu Ghraib);
69. Complaint, Estate of Albazzaz v. Blackwater Worldwide, No. 1:07-CV-02273 (D.D.C. Dec. 19, 2007) (regarding September 9, 2007 shootings by Blackwater employees at Al Watahba Square);
70. Complaint, Estate of Atban v. Blackwater USA, No. 1:07-CV-01831 (D.D.C. Oct. 11, 2007) (regarding September 16, 2007 shootings by Blackwater employees at Nisoor Square).
71. 42 U.S.C. § 1983 (2009).
72. Filártiga v. Pena-Irala, 630 F.2d 876, 887 n.21 (2d Cir. 1980) (noting Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795)).
73. 630 F.2d 876;
74. see, e.g., Beth Stephens, Individuals Enforcing International Law: The Comparative and Historical Context, 52 DEPAUL L. REV. 433, 436 (2002) [hereinafter Stephens, Individuals Enforcing International Law] ("The transformation of this statute began in 1980, with the Second Circuit's decision in Filártiga")
75. See, e.g., Stephens, Individuals Enforcing International Law, supra note 35, at 433-34 ("These civil [ATS] lawsuits for human rights abuses have triggered great excitement within the human rights community, viewed as an important step in the long-term movement toward the enforcement of human rights norms.");
76. Beth Stephens, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 BROOK. J. INT'L L. 773, 777 (2008) [hereinafter Stephens, Judicial Deference] (estimating that 185 ATS cases have been filed since Filartiga).
77. 28 U.S.C. §1350(2006).
78. See, e.g., 1 OPPENHEIM'S INTERNATIONAL LAW 16 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("States are the principal subjects of international law. ⋯ As a rule, the subjects of the rights and duties arising from international law are states solely and exclusively, and international law does not normally impose duties or confer rights directly upon an individual human being⋯.");
79. 44B AM. JUR. 2D International Law § 22 (2008) ("Although states, and their rights, duties, and interests, are not the sole subjects of international law, they are the principal subjects of international law."). Though international law generally does not apply to private individuals, this is not an absolute rule.
80. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 793-94 (D.C. Cir. 1984) (Edwards, J., concurring) (discussing cases involving individual liability under law of nations, without color of state law). Piracy and slave trading, for example, are cited as norms of international law aimed at private individuals.
81. Id. at 794.
82. For further discussion of individual liability under international law in the absence of state action, see Kadic v. Karadzic, 70 F.3d 232, 239-40 (2d Cir. 1995) (discussing acts of genocide, piracy, war crimes, and other violations of international humanitarian law).
83. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) (citing sovereign immunity as basis for dismissing ATS claims against present and former U.S. officials whose actions were taken in their official capacity). An apparent tension exists in holding PMCs accountable for their tort actions under the ATS while recognizing immunity for state actors. Sanchez-Espinoza notes this tension in a footnote, speculating in dicta that the private individuals acting as agents of the United States might also be covered by the doctrine of sovereign immunity.
84. Id. at 207 n.4.
85. The court cites no authority for the proposition that sovereign immunity extends to agents of the U.S. government. However, as discussed in further detail, see infra note 177, official immunity is a more appropriate framework than sovereign immunity in the case of PMCs, and the justifications underlying official immunity do not support an extension of the principle to PMCs.
86. See supra note 38, regarding international laws that apply directly to individuals.
87. See, e.g., Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1247-48, 1264 (11th Cir. 2005);
88. Kadic, 70 F.3d at 245;
89. Trajano v. Marcos {In re Estate of Marcos), 978 F.2d 493, 501-02 (9th Cir. 1992);
90. Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 374 (E.D. La. 1997).
91. 70 F.3d 232 (2d Cir. 1995).
92. Id. at 236.
93. Id. at 241, 243-44.
94. Id. at 241-43.
95. Id. at 243.
96. Id. at 243-44.
97. Id. at 244.
98. Id. at 245 ("The 'color of law' jurisprudence of 42 U.S.C. § 1983 is a relevant guide to whether a defendant has engaged in official action for purposes of jurisdiction under the Alien Tort Act.").
99. See, e.g., Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1247-48, 1264 (11th Cir. 2005);
100. Arias v. Dyncorp, 517 F. Supp. 2d 221, 227-28 (D.D.C. 2007);
101. Chavez v. Carranza, 413 F. Supp. 2d 891, 899 (W.D. Tenn. 2005);
102. Bao Ge v. Li Peng, 201 F. Supp. 2d 14, 21-22 (D.D.C. 2000) (following the analysis of Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997), aff'd in part, rev'd in part, 395 F.3d 932 (9th Cir. 2002));
103. Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 374 (E.D. La. 1997);
104. Doe v. Unocal, 963 F. Supp. at 890.
105. See Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 25-26 (D.D.C. 2005) (stating that "basing liability for Alien Tort Statute violations on color of law jurisprudence is ⋯ overreach[ing]").
106. Lugar v. Edmundson Oil Co. 457 U.S. 922, 935 (1982).
107. U.S. CONST. amend. XIV, § 1.
108. Lugar, 457 U.S. at 924.
109. Id. at 937.
110. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001) (citations omitted). Though referred to as factors in Brentwood, other courts have treated them as "different factors or tests in different contexts."
111. See Lugar, 457 U.S. at 939. The muddled nature of the inquiry was illustrated by the Lugar Court's declining to decide "[w]hether these different tests are actually different in operation or simply different ways of characterizing the necessarily fact-bound inquiry."
112. Id.
113. Brentwood Acad., 531 U.S. at 296 (citations omitted).
114. Id. at 295-96.
115. See 353 U.S. 230, 230-31 (1957) (per curiam).
116. See Brentwood Acad., 531 U.S. 288.
117. Id. at 290, 300.
118. Id.
119. Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982). In Rendell-Baker, the Court found that a private school's actions did not constitute state action, even though the school received public funds.
120. Id. The Court rejected arguments related to state coercion, performance of a public function and existence of a symbiotic relationship.
121. Id. at 841-43.
122. See, e.g., Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974) (rejecting the contention that public utilities represent a "public function"). Among the "powers traditionally exclusively reserved to the State" are elections, the operation of a company town, and the operation of a municipal park.
123. Id. at 352.
124. West v. Atkins, 487 U.S. 42, 56 n.15 (1988).
125. Id. at 52-53 n.10.
126. Id. at 52.
127. See Circular No. A-76 (Revised) from Office of Management and Budget, Executive Office of the President, to the Heads of Executive Departments and Establishments, at A-2 (May 29, 2003) ("An inherently governmental activity is an activity that is so intimately related to the public interest as to mandate performance by governmental personnel.");
128. ELSEA ET AL., supra note 5, at 32.
129. See 31 U.S.C. § 501 note (2006) (Section (b) of the Comprehensive Analysis and Development of Single Government-Wide Definition of Inherently Governmental Function) (using the same definition of inherently governmental function as used in the Federal Activities Inventory Reform Act of 1998, Pub. L. No. 105-270, 112 Stat. 2382 (codified at 31 U.S.C. § 501 note));
130. Federal Acquisition Regulation, 48 C.F.R. § 7.503 (2006) ("and any other relevant Federal law or regulation, as determined by the Director of the Office of Management and Budget in consultation with the Chief Acquisition Officers Council and the Chief Human Capital Officers Council");
131. Circular No. A-76 (Revised) from Office of Management and Budget, supra note 68.
132. Circular No. A-76 (Revised) from Office of Management and Budget, supra note 68.
133. Id.
134. Id. at A-3.
135. Id.
136. Human Rights First estimates that PMCs in Iraq have fired their weapons thousands of times, hundreds of which were toward civilians. HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS, supra note 17, at 3.
137. See id. at 10-12.
138. For its report, Human Rights First reviewed hundreds of Serious Incident Reports filed by Pentagon contractors, the vast majority of whom reported attacks on contractors and those they were protecting.
139. Id. at 10. Such attacks included "roadside bombs, gunfire directed at convoys, and other direct attacks on contractors."
140. Id. In one incident, PMCs stopped at a checkpoint were attacked by locals hurling rocks and petrol bombs.
141. Id. In dozens of incidents, PMCs engaged in force because they thought civilian vehicles posed threats.
142. Id. at 11.
143. See 487 U.S. 42 (1988).
144. Id.
145. Id.
146. Id. at 54.
147. Id. at 55.
148. Id.
149. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287;
150. ANTHONY R. JONES, AR 15-6 INVESTIGATION OF THE ABU GHRAIB PRISON AND 205TH MILITARY INTELLIGENCE BRIGADE 14 (2004), available at http://www.defenselink.mil/news/Aug2004/d20040825fay.pdf (acknowledging that "[t]he provisions of Geneva Convention IV, Relative to Protection of Civilian Persons in Time of War, did apply to detainees in Iraq").
151. Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995).
152. Id.
153. FAY, supra note 11, at 79.
154. Washburn & Bigelow, supra note 12.
155. Although the presence of a "symbiotic relationship" between the state and a private actor has often been cited as a factor in determining state action, see, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 636 (1991), and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (1972), this factor runs into and overlaps with the joint activity factor. The "symbiotic relationship" language traces back to Rendett-Baker v. Kohn, 457 U.S. 830, 842-43 (1982), which in turn discusses Blum v. Yaretsky, 457 U.S. 991 (1982), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
156. Both Blum and Burton, however, analyze the existence of mutual benefits in the context of determining whether the state was a "joint participant." Blum, 457 U.S at 1010-11;
157. Burton, 365 U.S. at 724-25. Given the overlap between the two factors, this subsection discusses both.
158. Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) and United States v. Price, 383 U.S. 787, 794 (1966)).
159. Id. at 383 n.6 (citing Dennis v. Sparks, 449 U.S. 24, 28 n.4 (1980);
160. Adickes, 398 U.S. at 152).
161. Sparks, 449 U.S. at 28 n.4;
162. Adickes, 398 U.S. at 152. Some circuit courts, however, have mistakenly looked for official policy and custom.
163. See, e.g., Hoai v. Vo, 935 F.2d 308, 313-14 (D.C. Cir. 1991) (noting in dicta that appellants also failed to allege that official rule or custom gave rise to the alleged wrongs);
164. Collins v. Womancare, 878 F.2d 1145, 1155 (9th Cir. 1989) (noting that plaintiffs failed to dispute or allege "any facts in opposition to [defendant's] contention that the police maintained a policy of neutrality in the dispute").
165. "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of state law." Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
166. Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345, 1353 n.6 (S.D. Fla. 2003) (citing Burton, 365 U.S. at 723-24).
167. Howerton, 708 F.2d at 381.
168. Id. at 384.
169. See, e.g., FAY, supra note 11, at 49 (describing interrogation by PMC in which a staff sergeant went in and out of the cell where the interrogation was taking place, at times suffocating and inflicting pain on the detainee), 81-82 (describing PMC's rape of a detainee while soldier took pictures), and 87 (describing interrogation by PMC and soldiers using dogs for intimidation of detainee).
170. Howerton, 708 F.2d at 383 n.6.
171. See, e.g., Washburn & Bigelow, supra note 12.
172. 256 F. Supp. 2d 1345 (S.D. Fla. 2003).
173. Id. at 1353.
174. Id.
175. GSA Reviews CACI Contract, WASH. TECH., June 3, 2004, http://www.washingtontechnology.com/print/19-5/23680-1.html.
176. Washburn & Bigelow, supra note 12.
177. See CONG. BUDGET OFFICE, supra note 4, at 2.
178. See 517 F. Supp. 2d 221 (D.D.C. 2007).
179. Id. at 228.
180. Id. (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001), for the color-of-law tests). Insofar as Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982), established that performance of a public contract is insufficient to constitute state action, Arias appears distinguishable because of the additional allegation that the PMC acted in coordination with the Colombian and U.S. governments. Also, although this Comment disagrees as to the relevance of the "agency control" and "government entwinement" tests in the PMC context, the court held that plaintiffs alleged sufficient facts to state a claim that satisfied the joint activity, agency control, or government entwinement tests.
181. Arias, 517 F. Supp. 2d at 228.
182. See Complaint at ¶¶ 62, 66, Arias, 517 F. Supp. 2d 221 (No. 01-1908), available at http://ciponline.org/colombia/ irlfdyncorp.htm.
183. 457 U.S. 991, 1004(1982).
184. "[N]o case has actually found that the state's encouragement of private activity clothed such a response in state action." JAMES A. KUSHNER, GOVERNMENT DISCRIMINATION: EQUAL PROTECTION LAW AND LITIGATION § 2:32 (2008).
185. Village of Bensenville v. Fed. Aviation Admin., 457 F.3d 52, 64 (D.C. Cir. 2006) (quoting Moose Lodge v. Irvis, 407 U.S. 163, 172 (1972)).
186. Blum, 457 U.S. at 1004.
187. See FAY, supra note 11, at 71-95 (describing specific incidents of abuse at Abu Ghraib committed by the U.S. military and/or PMCs).
188. Id. at 81-82 (incident #22).
189. Id. at 87 (incident #31).
190. Id. at 72-73 (incident #3).
191. First Amended Complaint ¶ 38, Ibrahim v. Titan Corp., 391 F. Supp. 2d 10 (D.D.C. 2005) (No. 04-01248), 2005 WL 495036.
192. Id. ¶ 51.
193. Third Amended Class Action Complaint ¶ 116, Saleh v. Titan Corp., 436 F. Supp. 2d 55 (D.D.C. 2006) (No. 05-1165).
194. Id. ¶¶ 117-120.
195. Id. ¶¶ 50, 52-54, 79.
196. Ibrahim, 391 F. Supp. 2d at 14-15.
197. Saleh, 436 F. Supp. 2d at 57-58.
198. See First Amended Complaint, supra note 116, ¶ 64 (bringing ATS claims for war crimes, crimes against humanity, torture, abuse of persons in custody, murder, enforced kidnapping and/or wrongful detention, unlawful seizure of property, disrespect for religious beliefs, assault and battery, intentional infliction of emotional distress, wrongful death, false imprisonment, conversion, obstruction of justice, and negligence);
199. Third Amended Class Action Complaint ¶¶ 175-181, 193-199, 209-214, 224-229, 239-243, supra note 118 (bringing ATS claims for extrajudicial killing; torture; cruel, inhuman, or degrading treatment; war crimes; and crimes against humanity).
200. See Romero v. Drummond Co., 552 F.3d 1303, 1316 (11th Cir. 2008);
201. Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995);
202. Bowoto v. Chevron Corp., No. 99-02506, 2006 WL 2455752 (N.D. Cal. Aug. 26, 2006);
203. Doe v. Islamic Salvation Front, 993 F. Supp. 3, 7-8 (D.D.C. 1998).
204. 770 F.2d 202,207 (D.C. Cir. 1985).
205. Saleh, 436 F. Supp. 2d at 58.
206. Saleh also stated that the Supreme Court case of Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), did not overrule Sanchez-Espinoza's proposition that there is no middle ground between private action and government action.
207. Saleh, 436 F. Supp. 2d at 57-58.
208. However, Sosa also did not rule out the possibility of a middle ground. In determining whether a norm constitutes a cause of action, the Sosa Court said that one consideration is "whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." 542 U.S. at 732 n.20 (comparing Judge Edwards's concurrence in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-795 (D.C. Cir. 1984), discussing the lack of consensus in 1984 that torture by private actors violate international law, with Kadic, 70 F.3d at 239-241, finding in 1995 that genocide by private actors violates international law). The two cases considered by Sosa - Tel-Oren and Kadic - both claimed torture as a violation of the law of nations, and argued that the prohibition against torture applies directly to individuals, so a discussion of state action was irrelevant. Thus, the Sosa Court did not reject the possibility of finding official action under a color of law/state action analysis.
209. Compare Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), with Kadic, 70 F.3d 232 (decided in 1995).
210. Sanchez-Espinoza, 770 F.2d at 205.
211. Id. at 205.
212. Id. at 204.
213. Id. at 207.
214. Id. at 206.
215. Id.
216. Id. at 206-07.
217. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984).
218. Id.
219. Id. at 793 (Edwards, J., concurring).
220. Arias v. Dyncorp, 517 F. Supp. 2d 221, 228 (D.D.C. 2007);
221. Doe v. Islamic Salvation Front, 993 F. Supp. 3, 8 (D.D.C. 1998).
222. See, e.g., Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1247-48, 1264 (11th Cir. 2005);
223. Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995);
224. Chavez v. Carranza, 413 F. Supp. 2d 891, 899 (W.D. Term. 2005);
225. Doe v. Unocal, Corp., 963 F. Supp. 880, 890 (C.D. Cal. 1997).
226. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)).
227. Galustian v. Peter, 561 F. Supp. 2d 559, 562 (E.D. Va. 2008) (citations omitted).
228. Paper, 454 U.S. at 241.
229. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
230. Id. at 508-09.
231. Piper, 454 U.S. at 241-42 (approvingly reviewing district court's analysis).
232. See, e.g., USHA (India), Ltd. v. Honeywell Int'l, Inc., 421 F.3d 129, 135 (2d Cir. 2005);
233. Kontoulas v. A.H. Robins Co., 745 F.2d 312, 315 (4th Cir. 1984).
234. 561 F. Supp. 2d 559 (E.D. Va. 2008). A D.C. district court also indicated that it would be receptive to an FNC argument that Iraq constituted an adequate alternative forum. Nattah v. Bush, 541 F. Supp. 2d 223, 237 nn.13 & 14 (D.D.C. 2008).
235. 128 S.Ct. 2207 (2008).
236. Galustian, 561 F. Supp. at 564 nn.5 & 6. The plaintiff operated a private security company in Iraq, and the defendant operated a forum for private security firms and other businesses involved in reconstruction in Iraq.
237. Id. at 560-61.
238. Id. at 564 n.6.
239. Id. at 563 (conditioning dismissal on defendant's submission to Iraqi courts' jurisdiction and defendant's waiver of any applicable statute of limitations defenses);
240. Galustian v. Peter, 570 F. Supp. 2d 836 (E.D. Va. 2008) (further conditioning previous dismissal on U.S. government's waiver of immunity on defendant's behalf under Order 17).
241. Minaf, 128 S. Ct. at 2221.
242. Lori Hinnant, Iraqi Courts Mired in War's Chaos, SEATTLE TIMES, Dec. 7, 2007, at A8.
243. Munaf, 128 S. Ct. at 2221.
244. Id. at 2221-22.
245. Id. at 2222.
246. See, e.g., Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1084 (S.D. Fla. 1997) ("The 'alternative forum is too corrupt to be adequate' argument does not enjoy a particularly impressive track record.")
247. Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir. 2009).
248. Id.
249. See, e.g., Eastman Kodak Co., 978 F. Supp. at 1084 (reviewing cases from the First, Second, and Fifth Circuits).
250. Hinnant, supra note 153. In 2008 alone, ten judges and eighty-six lawyers were killed. BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, 2008 HUMAN RIGHTS REPORT: IRAQ (2009), available at http://www.state.gOv/g/drl/rls/hrrpt/ 2008/nea/119116.htm [hereinafter BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, IRAQ].
251. Hinnant, supra note 153.
252. Quinn Bowman, Iraq in Transition: Violence, Legal System Drawbacks Lead to Detainee Buildup, ONLINE NEWSHOUR, Sept. 21, 2007, http://www.pbs.org/newshour/indepth-coverage/middle-east/iraq/july- dec07/ruleoflaw-09-21.html.
253. Dina Temple-Raston, Iraqis on Slow Road to Building Judicial System, NPR, Mar. 27, 2008, http://www.npr.org/templates/story/story.php? storyid=89162530.
254. BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, IRAQ, supra note 161.
255. Id.
256. Hinnant, supra note 153.
257. BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, IRAQ, supra note 161.
258. Id.
259. See Sarei v. Rio Tinto PLC, 487 F.3d 1193, 1213 (9th Cir. 2007) ("Neither the Supreme Court nor any circuit court ⋯ has resolved the issue of whether the ATCA requires exhaustion of local remedies.").
260. Although the Ninth Circuit initially held that exhaustion was not required for non-TVPA ATS claims, id. at 1223, an en banc review resulted in a remand to the district court to determine whether to impose an exhaustion requirement.
261. See Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) (en banc).
262. 28 U.S.C. § 1350 note (2006) (Torture Victim Protection Act).
263. Sarei, 487 F.3d at 1214 (citing Enahoro v. Abubakar, 408 F.3d 877, 889-90 (7th Cir. 2005);
264. Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 343 n.44 (S.D.N.Y. 2003)).
265. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (applying government contractor defense to contractor that supplied aircraft to U.S. military);
266. Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003) (applying government contractor defense to contractor that maintained Army aircraft);
267. McKay v. Rockwell Int'l Corp., 704 F.2d 444 (9th Cir. 1983) (applying government contractor defense to contractor that manufactured aircraft for U.S. military).
268. 487 U.S. at 504.
269. Id. at 507 (citation omitted).
270. See id. at 511-12.
271. In Boyle, the discretionary judgment had to do with "the selection of the appropriate design for military equipment to be used by our Armed Forces."
272. Id. at 511. The potential financial liability took the form of increased contractor prices.
273. Id. at 511-12.
274. The Boyle majority suggested that the United States government, and not the government contractor, constituted the real party in interest. Instead of applying the principles of sovereign immunity (which deals with a government's immunity from suit), however, the Court should have focused on official immunity (an individual government official's immunity from suit).
275. See, e.g., Dugan v. Rank, 372 U.S. 609, 620 (1963) (in determining whether a suit is against the government such that sovereign immunity would apply, "[t]he general rule is that a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.'" (citations omitted)). A natural comparison can be drawn between government employees, who enjoy official immunity, and government contractors who often perform the same functions but have no immunity. This comparison was made by the dissent in Boyle, penned by Justice Brennan and joined by Justices Marshall and Blackmun. After discussing the doctrine of official immunity, the dissent concluded that "the essential justifications for official immunity do not support an extension to the Government contractor." 487 U.S. at 524 (Brennan, J., dissenting).
276. The Boyle dissent's conclusion finds support in the U.S. Supreme Court's treatment of private contractors running prisons under state contract. In Richardson v. McKnight, 521 U.S. 399, 411-12 (1997), the Court refused official immunity for prison guards employed in privately run correctional facilities operating under state contract. The Court acknowledged the increased financial liability that would result from denying immunity, but found it significant that Tennessee had not chosen to extend sovereign immunity, though Tennessee presumably anticipated increased contract prices and the potential for contractors to be distracted from their duties if forced to defend such actions. The Court chose instead to focus instead on whether the extension of immunity would serve the central goal of official immunity - the prevention of unwarranted timidity by public officials.
277. Id. at 400, 409-12.
278. Finding that immunity would not serve that goal, the Court denied official immunity to the state contractors.
279. Id.
280. Although the U.S. Supreme Court's treatment of private corporations running prisons under federal contract in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), points toward an opposite conclusion, Malesko is less applicable than Richardson in the PMC context. Rather than holding that official immunity did not extend to the federal contractors, the Malesko Court held that a federal inmate injured by an employee of the private corporation contracted to operate the facility had no implied right to file a Bivens action (the federal equivalent to a § 1983 claim, applying to individuals acting under color of federal law) against the corporation to redress the alleged constitutional violation. The Court's justifications included the fact that (1) Bivens's purpose of deterring individual federal officers from violating constitutional rights would not be served by extending a Bivens right of action to corporate defendants,
281. id. at 70-71, (2) no federal prisoner in a government-run facility could sue the individual officer's employer - the Bureau of Prisons or the U.S. government,
282. id. at 71-72, and (3) the inmate had alternative remedies available,
283. id. at 72-73.
284. The logic of Malesko, however, does not apply to the PMC context. First, the Malesko Court spent a good portion of its opinion discussing Bivens's status as a judicially created remedy strictly limited to violations of the Fourth and Eighth Amendments and the Due Process Clause of the Fifth Amendment.
285. Id. at 66-67.
286. While the judiciary might understandably be wary of extending the scope of a judicially created remedy too far, the Alien Tort Statute is a congressionally created remedy. Furthermore, unlike the prisoners in Malesko, plaintiffs suffering torts at the hands of PMCs may not have access to alternative remedies. See, for example, the discussion of availability of alternative fora in Part II.A supra.
287. Finally, the rationale underpinning official immunity does not support extension of such immunity to federal contractors. In Scheuer v. Rhodes, which established qualified immunity for executive officials, the Supreme Court explained the rationale for official immunity: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good. 416 U.S. 232, 239-40 (1974). Whereas government officers are legally obligated to work for the public good and may, by virtue of their public office, be presumed to operate in good faith, PMCs are unaccountable to the public at large. Given their explicit profit motive, PMCs are unlikely to suffer from a problem of overdeterrence. As the Richardson Court found, "marketplace pressures provide the private firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or 'nonarduous' employee job performance." 521 U.S. at 410.
288. At least two courts have declined to extend Boyle to recognize immunity for contractors. See United States ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140, 1146-47 (9th Cir. 2004) ("the government contractor defense does not confer sovereign immunity on contractors");
289. Carmichael v. Kellogg, Brown & Root Servs., Inc., 450 F. Supp. 2d 1373, 1377 n.3 (N.D. Ga. 2006) ("It is important to note that the government contractor defense created by Boyle results in the preemption of certain state law causes of action, not a grant of immunity to contractors.").
290. See, e.g., supra text accompanying note 91.
291. See subsection D, infra, on the political question doctrine.
292. See Boyle, 487 U. S. at 511-12.
293. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002).
294. Id. at 769.
295. Id. at 766.
296. See also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997) (rejecting the argument that "ultimate financial liability" should control "whether [a party] is the kind of entity that should be treated as an arm of the State").
297. 487 U.S. at 521-22 (Brennan, J., dissenting).
298. "In most cases compensation for official misconduct must be sought from the individual public official [although] these defendants are almost always reimbursed by the government that employs them ⋯." JOHN C. JEFFRIES ET AL., CIVIL RIGHTS ACTIONS: ENFORCING THE CONSTITUTION 111 (2d ed. 2007). "For obvious reasons, governments generally choose to protect their employees against damage liability, either by themselves providing defense counsel and indemnifying the employees against loss or, less commonly, by purchasing insurance."
299. Id. at 111 n.a.
300. 712 F.2d 490, 511 n.67 (D.C. Cir. 1983) (citing Rayonier, Inc. v. United States, 352 U.S. 315, 320 (1956) ("[F]or obvious reasons the United States cannot be equated with a municipality, which conceivably might be rendered bankrupt if it were subject to [huge] liability for the negligence of its [employees]⋯.")).
301. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (suggesting that, when the U.S. government files a statement of interest, "there is a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy");
302. Stephens, Judicial Deference, supra note 36, at 773, 780-87 (arguing that, with the exception of George W. Bush's administration, courts have afforded great deference to executive branch views on the impact of a particular case on foreign affairs, although they have been careful to state that they are not required to follow the executive branch's views).
303. See, for example, the discussion of Iraq's legal system in Part II.A, infra. Mohammad Munaf experienced the system's shortcomings firsthand, when he was tried and sentenced in an hour and a half or less, without evidence or witnesses. Hinnant, supra note 153.
304. For other arguments against applying the government contractor defense in ATS suits, see Ryan Micallef, Note, Liability Laundering and Denial of Justice: Conflicts Between the Alien Tort Statute and the Government Contract Defense, 71 Brook. L. Rev. 1375, 1408-13 (2006) (arguing that application of the defense would (1) create a loophole allowing the government to "wash its hands of political or financial responsibility" for "dirty work" assigned to contractors, (2) threaten national security and credibility by creating a threat of terrorist backlash for unpunished violations and conveying "impertinence to the international community," and (3) defy the principle that every right must have a remedy).
305. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 15 (D.D.C. 2005) (quoting Baker v. Carr, 369 U.S. 186,217(1962)).
306. See Stephens, Judicial Deference, supra note 36, at 773, 780-87.
307. Ibrahim, 391 F. Supp. 2d at 15 (citing Hamdi v. Rumsfeld, 542 U.S. 507 (2004)).
308. Id. (quoting Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992)).
309. For a more in-depth discussion of the political question doctrine's inapplicability in the ATS and PMC context, see Ibrahim, 391 F. Supp. 2d at 15-16.
310. Lane v. Halliburton, 529 F.3d 548, 560 (5th Cir. 2008);
311. McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1359-60 (11th Cir. 2007).
312. As Koohi stated, "The Supreme Court has made clear that the federal courts are capable of reviewing military decisions, particularly when those decisions cause injury to civilians ⋯ [T]his is true in time of war as well as in time of peace." 976 F.2d 1328, 1331 (9th Cir. 1992) (citing The Paquete Habana, 175 U.S. 677 (1900)).
313. McMahon, 502 F.3d at 1359 (discussing Aktepe v. United States, 105 F.3d 1400 (11th Cir. 1997);
314. Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991)).
315. 529 F.3d at 554-55.
316. 502 F.3d at 1336.
317. Lane, 529 F.3d at 560;
318. McMahon, 502 F.3d at 1359-60.
319. 529 F.3d at 560.
320. 502 F.3d at 1361.
321. Meyer, supra note 15.
322. Arias v. Dyncorp, 517 F. Supp. 2d 221, 223-24 (D.D.C. 2007).
323. Id. at 225.
324. 454 F. Supp. 2d 637, 638-39, 643 (S.D. Tex. 2006).
325. Id.
326. Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992).
327. 833 F. Supp. 1486, 1498 (CD. Cal. 1993).
328. 444 F. Supp. 2d 1277, 1281 n.4 (M.D. Ga. 2006) (citing Gilligan v. Morgan, 413 U.S. 1, 11 (1973) and Koohi, 976 F.2d at 1332-33). If a damages suit alleging unlawful conduct by military personnel would be justiciable, as suggested by Koohi and Gilligan, then a damages suit alleging unlawful conduct by military contractors would certainly seem justiciable as well.
329. El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).
330. Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, 1000 (9th Cir. 2009) (citing Totten v. United States, 92 U.S. 105 (1875).
331. Id. at 1000-01 (citing United States v. Reynolds, 345 U.S. 1 (1953).
332. Id. at 1001-02 (discussing Totten).
333. Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).
334. Jeppesen, 563 F.3d at 1006.
335. 479 F.3d 296 (4th Cir. 2007). As the Fourth Circuit explained, Totten established an absolute bar to enforcement of confidential agreements to conduct espionage.
336. Id. at 306.
337. Id. at 309.
338. Id.
339. Id.
340. Id. at 310.
341. Id. at 313.
342. Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, 997 (9th Cir. 2009).
343. Id. at 1003.
344. Id. at 1005.
345. See, e.g., CONG. BUDGET OFFICE, supra note 4;
346. ELSEA ET AL., supra note 5;
347. HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS, supra note 17;
348. U.S. GOV'T ACCOUNTABILITY OFFICE, supra note 22;
349. Montreux Document, supra note 22.
350. See Meyer, supra note 15 (recounting the incident).
351. See id. ('"That day in Baghdad, around the busy traffic circle at Nisoor Square, Iraqi citizens were going to lunch, stopping at the market, traveling with their families and children,' said Joseph Persichini Jr., assistant director in charge of the FBI's Washington Field Office, which led the investigation."). Though this incident received enormous attention, many similar incidents involving PMCs have come to light.
352. See, e.g. HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS, supra note 17.
353. See, e.g., FAY, supra note 11.
354. See supra notes 21-26 and accompanying text.
355. GARY CLYDE HUFBAUER & NICHOLAS K. MITROKOSTAS, AWAKENING MONSTER: THE ALIEN TORT STATUTE OF 1789, at 7 (2003).
356. Abigail Hing Wen, Note, Suing the Sovereign's Servant: The Implications of Privatization for the Scope of Foreign Sovereign Immunities, 103 COLUM. L. REV. 1538, 1569 (2003).
357. See Alford, supra note 23, at 517-28 (discussing arbitration clauses and sovereign immunity waivers to allocate costs between sovereigns and the private parties with which they contract).
358. Elana Schor, Blackwater to Leave Security Business Following Problems in Iraq, GUARDIAN.CO.UK, July 22, 2008, http://www.guardian.co.uk/ world/2008/jul/22/usa.iraq.
359. See, e.g., HUMAN RIGHTS FIRST, PRIVATE SECURITY CONTRACTORS, supra note 17, at 6-7 (profiling Blackwater and incidents involving Blackwater employees' use of force, and mentioning that "[i]n the aftermath of the Nisoor Square incident, intense media attention focused on Blackwater");
360. MAJORITY STAFF OF H. COMM. ON OVERSIGHT AND GOVERNMENT REFORM, IIOTH CONG., supra note 13;
361. newspaper articles supra note 21.
362. Joseph Neff, Security Firm Faces More Scrutiny, THE NEWS & OBSERVER, Mar. 11, 2008, at A1.
363. See, e.g., Dugan v. Rank, 372 U.S. 609, 620 (1963).
364. See supra notes 182-184.
365. Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 16-17 n.4 (D.D.C. 2005) (stating that no alternative methods of redress had been established as viable and assuming that "it is either this court or nothing").
366. See, e.g., BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, 2008 HUMAN RIGHTS REPORT: AFGHANISTAN (2009), http://www.state.gov/g/drl/rls/hrrpt/2008/sca/ 119131.htm (describing the "severe inadequacy of the judicial system").
367. Beth Van Schaack, With All Deliberate Speed: Civil Human Rights Litigation as a Tool for Social Change, 57 VAND. L. REV. 2305, 2322 (2004) (footnote omitted).
368. See id. at 2327-29 (discussing the possibility of injunctive relief in ATS cases and the injunctive relief sought in Doe v. Unocal, 67 F. Supp. 2d 1140 (CD. Cal. 1999)).
369. Id. at 2318.
370. Id.
371. Id. at 2319.
372. Id. at 2320.
373. To date, there has been one PMC case filed under the Military Extraterritorial Jurisdiction Act for Blackwater's September 16, 2007 shooting at Nisoor Square, see Editorial, Contractors on Trial, WASH. POST, Dec. 9, 2008, at A18 (reporting on indictment of five Blackwater employees involved in the incident), and Raheem Salman and Kimi Yoshino, Blackwater Guards Are to Be Arraigned, L.A. TIMES, Jan. 6, 2009, at A3 (reporting on the defendants' arraignment) and one PMC case filed under the Uniform Code of Military Justice,
374. see Contractor Convicted in Rare Court-Martial, MILITARY TIMES, June 23, 2008, http://www.militarytimes.corn/news/2008/06/ap- contractor-courtmartial-062208/ (reporting on the military court conviction of an Iraqi-Canadian translator, Alaa "Alex" Mohammad Ali, who was charged with assault against another contractor but convicted only of lesser charges to which he pled guilty).
375. Brian Ross, Despite Investigations, Blackwater to Keep Working in Iraq, ABC NEWS, Apr. 4, 2008, http://i.abcnews.com/Blotter/Story? id=4592370&page=1.
376. Scott Shane & Ron Nixon, In Washington, Contractors Take on Biggest Role Ever, N.Y. TIMES, Feb. 4,2007, § 1, at 1.
377. John F. Burns, The Deadly Game of Private Security, N.Y. TIMES, Sept. 23, 2007, at § 4, at 1;
378. see also Martha Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, 46 B.C. L. REV. 989, 1023 (2005) (arguing that "[t]he Iraqis do not distinguish between the civilian contractors and the U.S. military in judging the conduct of the U.S. occupation").
379. Sharing this viewpoint, Martha Minow warns that, "by using private contractors, the government can avoid checks and balances in a democratic system" and that "[f]oreign policy can be shaped even more insidiously by reliance on private contractors." Minow, supra note 249.
380. See supra note 187.